[Senate Hearing 111-967]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-967
 
                 REVIEWING THE NATIONAL BROADBAND PLAN

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 14, 2010

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation



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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas, 
JOHN F. KERRY, Massachusetts             Ranking
BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California            JOHN ENSIGN, Nevada
BILL NELSON, Florida                 JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey      ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas                 GEORGE S. LeMIEUX, Florida
CLAIRE McCASKILL, Missouri           JOHNNY ISAKSON, Georgia
AMY KLOBUCHAR, Minnesota             DAVID VITTER, Louisiana
TOM UDALL, New Mexico                SAM BROWNBACK, Kansas
MARK WARNER, Virginia                MIKE JOHANNS, Nebraska
MARK BEGICH, Alaska
                    Ellen L. Doneski, Staff Director
                   James Reid, Deputy Staff Director
                   Bruce H. Andrews, General Counsel
                 Ann Begeman, Republican Staff Director
             Brian M. Hendricks, Republican General Counsel
                  Nick Rossi, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on April 14, 2010...................................     1
Statement of Senator Rockefeller.................................     1
Statement of Senator Hutchison...................................     3
    Prepared statement...........................................     5
Statement of Senator Ensign......................................     7
Statement of Senator Dorgan......................................    17
Statement of Senator Johanns.....................................    19
Statement of Senator Isakson.....................................    22
Statement of Senator Begich......................................    23
Statement of Senator Pryor.......................................    25
Statement of Senator McCaskill...................................    27
Statement of Senator Klobuchar...................................    29
Statement of Senator Snowe.......................................    31
Statement of Senator Nelson......................................    33
    Prepared statement...........................................    33
Statement of Senator Cantwell....................................    35

                               Witnesses

Hon. Julius Genachowski, Chairman, Federal Communications 
  Commission.....................................................     9
    Prepared statement...........................................    11

                                Appendix

Hon. John F. Kerry, U.S. Senator from Massachusetts, prepared 
  statement......................................................    43
Response to written questions submitted to Hon. Julius 
  Genachowski by:
    Hon. John D. Rockefeller IV..................................    44
    Hon. Daniel K. Inouye........................................    45
    Hon. John F. Kerry...........................................    49
    Hon. Byron L. Dorgan.........................................    56
    Hon. Maria Cantwell..........................................    58
    Hon. Frank R. Lautenberg.....................................    62
    Hon. Mark Pryor..............................................    62
    Hon. Claire McCaskill........................................    63
    Hon. Amy Klobuchar...........................................    64
    Hon. Tom Udall...............................................    65
    Hon. Mark Warner.............................................    68
    Hon. Mark Begich.............................................    73
    Hon. Olympia J. Snowe........................................    80
    Hon. John Ensign.............................................    87
    Hon. George S. LeMieux.......................................    89
    Hon. David Vitter............................................    91
    Hon. Sam Brownback...........................................    91


                             REVIEWING THE
                        NATIONAL BROADBAND PLAN

                              ----------                              


                       WEDNESDAY, APRIL 14, 2010

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:34 p.m. in room 
SR-253, Russell Senate Office Building, Hon. John D. 
Rockefeller IV, Chairman of the Committee, presiding.

       OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                U.S. SENATOR FROM WEST VIRGINIA

    The Chairman. This hearing will come to order.
    We welcome all of our guests, most particularly Julius 
Genachowski, who is Chairman of the Federal Communications 
Commission, which is a seminal job in Washington, D.C.
    Broadband is more than a technology. It is a platform for 
social and economic opportunity. With broadband networks, we 
can change the way we approach job creation, education, health 
care, entertainment, and other things. We can change the way we 
connect with our communities around the world.
    That is why I fought last year to make sure that the 
Recovery Act included programs designed to bring broadband to 
everybody in this country no matter who they are, and no matter 
where they live. It is an operating principal.
    The Recovery Act included two major initiatives: one, a 
grant program to spur the adoption and deployment of broadband; 
and two, a broadband plan for the Nation developed by the FCC.
    It is the broadband plan that we are here to discuss today. 
That is why we are here: who gets what when, for how long, all 
of that.
    The FCC released the National Broadband Plan last month, 
and like many of my colleagues, I joined the chorus singing 
praises for this effort. I think the document is a great start, 
but I have concerns, real concerns.
    Back in October when we held a hearing to discuss the 
broadband grant programs, I spoke about the prospects for the 
broadband plan. I said I wanted to see concrete action on the 
day that the plan is delivered because I believe we need real 
broadband solutions for real people. And we need them now. A 
mere menu of options for the FCC and the Congress with far-off 
time frames are, to this Senator, not good enough. I believed 
that in October and I believe it now.
    The report has over 200 recommendations, but it takes no 
action and suggests no action. It is long on vision, but it is 
short on tactics. So I am going to challenge the FCC. I am 
going to challenge the FCC to make the hard choices--for them 
as a commission to make the hard choices within, regardless of 
anything else going on, that will help bring broadband to every 
corner of our country.
    I mentioned to the Chairman outside that I have spent much 
of the last week at a mine disaster in a rural part of West 
Virginia. Amongst all of the horrible things that come out of 
an experience like that, one of the most disturbing was the 
fact that not one person there--not the rescue people trying to 
get inside, mine officials, miners' families, and most 
importantly, trying to call people in Detroit or Akron or 
wherever they might be--could not do that. There is no cell 
phone service in that part of the State, and it is not even the 
most rural part of the State. That made me angry.
    Putting ideas on paper is just not enough. Just seeking 
comment on a slew of issues is not enough. To me, 10 years 
after 9/11, it is action that counts. Let me tell you why.
    In West Virginia, one in five households lacks access to 
broadband service. As this plan notes, only 71 percent of the 
State's population has access to 3G wireless service. Every day 
that goes by, communities without broadband in West Virginia--
and every other State in the country, because there is no State 
that does not have remote and rural parts to it--risks falling 
father behind.
    In this new century, universal broadband service is the 
promise of a fair shot at economic opportunity. It really is 
just exactly that. It is the promise of educational equality 
and affordable health care, and it opens the door for everyone 
to participate in our democratic dialogue, where people can 
talk with each other, and hopefully do so with dignity, no 
matter who you are or where you live. Income, geography, 
nothing has anything to do with this.
    Before I conclude my remarks, let me take a minute to 
mention last week's disheartening decision by the Circuit Court 
of Appeals of the District of Columbia. No doubt, the messy 
situation that Comcast has so generously put us in adds to the 
complexity of your task, Mr. Chairman. No question about it. 
But for me, two things are clear.
    First, in the near term, I want the agency to use all of 
its existing authority. I do not care how many lawyers you have 
or do not have. I want you to exercise the authority that you 
do have. Comcast and others want to take that away. They love 
deregulation so much, they just cannot even express it. And 
there are a lot of other folks sitting out there who represent 
companies that feel the same way, but at least they did not 
take it to court. Now that it has been taken to court and now 
that it has been shot down, it puts the whole National 
Broadband Plan at risk, and the Chairman of the FCC ought to be 
pretty upset about that. I know I am.
    And second, in the long-term, if there is a need to rewrite 
the law to provide consumers and the FCC and industry with a 
new framework, I, as Chairman, will take that task on. That is 
the option where I think we are probably going to end.
    A lot of people sitting in this room represent companies 
who love deregulation and will do anything to get out of 
anything to do with government. We have had a history in the 
recent FCC of a lot of non-action on issues where action was 
needed. I just want to say, Mr. Chairman, to you that this is a 
committee, at least so long as I am Chairman, that is here to 
protect people, to protect consumers. Most of the rest of the 
world can take care of itself. Consumers cannot. People without 
cell phone service cannot make that phone call to the mother of 
a deceased miner. They cannot do it. So that is the way I look 
at my responsibilities here, and I think a lot of us feel that 
way.
    So in closing, I appreciate the challenges before the FCC. 
I understand they are much more complicated now. Do not let 
that discourage you at all. Bend the curve if you have to.
    I look forward to the Chairman's testimony about how he is 
going to move ahead and how we are all going to do it, in fact, 
together and bring the wonders of broadband to every community 
in this country. That has to be the end result.
    I call upon the distinguished Ranking Member from Texas.

            STATEMENT OF HON. KAY BAILEY HUTCHISON, 
                    U.S. SENATOR FROM TEXAS

    Senator Hutchison. Thank you, Mr. Chairman.
    Mr. Chairman, first, I want to extend my support for what I 
know is, for every one of us, a concern about that horrible 
disaster that happened in your State. And I know that your 
being there was very comforting for the victims' families, but 
also I know that it was probably very difficult personally to 
meet with people who had experienced such a loss. So, each of 
us relate to what you have done and said, and we hope that 
there can be mine safety measures that will protect the people 
who work in those mines in the future.
    I do want to also address the broadband issue, which of 
course is the subject of this hearing, but there is no question 
that we are also going to discuss the recent court decision 
that is going to have a huge impact on, I think, Internet 
survivability for the future.
    Let me first say that there are some good parts of the 
broadband plan that the Commission has brought to us today, and 
certainly the series of recommendations on the reform of the 
Universal Service Fund is good because it provides support for 
low-income Americans to have access to telecommunications 
capabilities, and lowers the cost of building infrastructure in 
rural areas.
    I also think the focus that the Commission has on making 
sure that anchor institutions such as libraries, schools, 
universities, and hospitals have priority access to broadband 
is also very key.
    I believe, however, that there are concerns raised in this 
report. I will start with the effort to encourage broadcasters 
to voluntarily give back some of their spectrum.
    We have just completed a digital television transition. It 
was very time-consuming and expensive for broadcasters, but we 
have gotten through it. Some of the spectrum that broadcasters 
had was reclaimed from broadcasters. So asking them to give 
back more I think is probably unfair.
    But, what concerns me even more is the agency's reference 
to involuntary measures that might require more from the 
broadcasters after they have already gone though a very 
expensive transition in compliance with the requirements of 
Congress. So, I know many of us will be monitoring the 
Commission's activities in this area very closely, and I hope 
that there will not be a heavy hand of government pushing 
involuntary give-back requirements.
    Further, I am disappointed that there are not enough 
incentives for private investment, such as the measures I 
suggested in a bill that I introduced last year. Such 
incentives would provide a truly voluntary, incentive for 
broadcasters and traditional communications companies to invest 
in underserved or rural areas. And I think that would allow 
these providers to be creative and innovative and have an 
incentive to do it.
    My bill also would provide a review of the large number of 
Federal programs that support broadband to see if we can 
streamline some of them, and that too was not adequately 
addressed in your report. So, I think taking some of the 
broadband that is available, using it in a better way, and 
providing investment incentives should be a part of any plan 
going forward in the future.
    The really big concern, however, that I want to address is 
the FCC's growing regulatory posture. You have just heard the 
other side of the argument from the Chairman, and I am very 
concerned that the Commission is going to overstep its 
Congressional authority and by means of, ``bending the curve,'' 
perhaps to do it.
    I think that if you look at the history of the really soft 
regulatory touch that we have had on the Internet, that has 
been very positive. It has promoted innovation, and we have 
seen really a good consumer outcome, more consumer choices at a 
better price because we have opened the doors rather than 
having the heavy hand of regulation that would begin to 
restrict private companies that build and maintain a core 
communications network, and to be able to manage their own 
facilities.
    I am concerned that there are more and more calls for the 
heavy footprint even though we have seen the success of a light 
footprint, which is or has been the FCC's policy starting in 
about 2002.
    Now we have the Comcast case, which I think Comcast 
certainly had the right to appeal that the FCC did not have the 
Congressional authority in the law to say that they could not 
manage their own networks. And the court ruled in Comcast's 
favor.
    Now we hear that there is an effort to go into the 
broadband area and really go back to the old kind of regulation 
that I think is going to stifle the evolution that we have seen 
in the Internet. Companies that did not exist 10 years ago are 
now titans of the industry, and I think that we have seen the 
good effects of that soft touch in promoting innovation and 
growth.
    The proclamations last week that the court decision left 
the broadband market without any consumer protection capability 
ignore the fact that the most robust consumer protection agency 
in this country, the Federal Trade Commission, has enforcement 
jurisdiction. Ironically, this jurisdiction was conveyed to the 
FTC when the FCC removed the common carrier regime from these 
technologies and would be eliminated if the FCC reverses that 
decision and I think, thereby, would harm the consumers by 
reducing their available protections.
    In my judgment, if the FCC were to take the action that 
Chairman Genachowski and his colleagues appear to be 
considering, reclassifying broadband as a common carrier 
service, and if it does so without a directive from Congress 
and a thorough analysis of the facts and the potential 
consequences to investment, the legitimacy of the agency would 
be seriously compromised.
    I hope, and I am asking you today, to step back and 
consider the consequences of such a decision and whether there 
are alternatives where we can work together to clarify the 
authority of the FCC while preserving the environment that 
encourages investment and creativity, which is the unique 
quality of American technology. I hope that we can find the 
common ground.
    As the Chairman has said, he is willing to dive into this 
if he believes that you do not have the statutory authority or 
are not able to get it. This will be a vigorous debate, Mr. 
Chairman, and I look forward to having it. I hope that we can 
do something in a way that will achieve the goal that I think 
all of us have, which is more choices at a better price for 
consumers, and also make sure that we do not stifle innovation.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Hutchison follows:]

  Prepared Statement by Kay Bailey Hutchison, U.S. Senator from Texas

    Mr. Chairman, thank you for holding this important and timely 
hearing on the Federal Communications Commission's recently completed 
National Broadband Plan. In light of the decision by the U.S. Court of 
Appeals for the D.C. Circuit last week, I would have preferred to have 
all five of the FCC Commissioners appear before us, but I do welcome 
Chairman Genachowski back today.
    At the outset, let me complement the Chairman, his staff, and the 
dozens of volunteers that worked for a year to conduct hearings, seek 
robust public input, and to analyze an extraordinary amount of 
information.
    We will likely spend time today discussing the court's decision, 
its impact on the broadband plan, and the idea of network neutrality 
regulations. But, before turning to those matters, I want to note that 
there are a number of positive provisions in the plan that we can work 
together on in a bipartisan way, here and at the Commission.
    For example, the Commission has made a series of recommendations to 
reform the Universal Service Fund that provides support for low income 
Americans to access telecommunication capabilities and provides support 
to lower the cost of building infrastructure in rural areas. Without 
reform, the program is not sustainable in this emerging communications 
environment.
    I am also pleased that the Commission focuses heavily on making 
sure that anchor institutions in our communities like schools, 
universities, hospitals, and libraries have access to very robust 
broadband services.
    However, I also have concerns with some of the plans' 
recommendations.
    While I commend the Commission for focusing on the need that we 
have to identify additional spectrum, I have concerns with the 
Commission's focus on spectrum used by broadcasters to provide free 
over-the-air television to millions of households.
    We just completed the digital television transition where some 
spectrum was already reclaimed from broadcasters. Although the 
immediate focus of the Commission will be on ``voluntary'' give backs 
of spectrum by broadcasters, the agency has reserved the right to move 
to ``involuntary'' measures. This is extraordinarily disturbing, and I 
will be monitoring the Commission's activities in this area very 
closely.
    Further, I am disappointed that the plan does not offer ideas to 
encourage direct private investment in new infrastructure in unserved 
areas.
    Last year I introduced the Connecting America Act, which would 
provide investment tax credits to providers that undertake investment 
in unserved areas or that make substantial commitments to upgrade their 
existing networks, regardless of the technology they use. My bill would 
also provide a review of the large number of Federal programs that 
support broadband to determine if we can streamline them and make the 
money work more effectively, or provide a single application point.
    I hope that Chairman Genachowski and his team will take another 
look at ways to stimulate direct private investment in our unserved 
areas. It is clear that we do not have the public funds to tackle this 
problem.
    The really big concerns with the plan and the FCC's growing 
regulatory posture:
    While I have some concerns about the plan itself, I am much more 
concerned by the aggressive regulatory posture being conveyed by the 
Commission.
    Investment began to truly flourish in broadband technology when the 
Commission made a decision in 2002 to remove advanced communications 
technologies from the suffocating embrace of common carrier regulation, 
a nineteenth century way of looking at and regulating commercial 
activities. In the years that followed, companies invested tens of 
billions of dollars in infrastructure and we witnessed a continuing 
convergence between technologies and more choices for consumers.
    Starting just a few years after the FCC adopted this light touch 
regulatory approach, however, we began to hear calls for a larger 
regulatory footprint that restricts how private companies that build 
and maintain the core communications networks manage their facilities. 
We first heard of ``net neutrality'' back in 2006, when the issue arose 
during this committee's last effort at comprehensive reform.
    We rejected calls to intervene into the Internet arena then, and 
have consistently decided not to pass legislation. Yet, the calls to 
regulate this technology area persist! In 2007, those calls resulted in 
a decision by the FCC to cite Comcast for a violation of the agency's 
open Internet principles, the first sign that the Commission would 
actively seek to impose restrictions on how companies manage their 
networks.
    While Comcast challenged the Commission's authority to regulate 
broadband in court, Chairman Genachowski started a rulemaking to adopt 
the open Internet principles set down 5 years ago as rules. I cautioned 
him last Fall that the case for regulation has not been made, and new 
rules will likely result in uncertainty and threaten investment.
    Mr. Chairman, that's the history of the ``net neutrality'' 
discussion, which has renewed focus because last week by the Court of 
Appeals for the D.C. Circuit ruled against the Commission and held that 
the authority cited by the FCC to justify its holding against Comcast 
was not sufficient to justify the Commission's actions in that case.
    In the wake of the court's decision, the regulatory chorus has 
grown louder still. Claims have been made that the court decision 
leaves consumers without protections and the agency with no authority 
to implement the national broadband plan, or to promote an open 
Internet.
    The remedy suggested by a number of parties is to risk the vitality 
of the broadband market by reemploying the outdated common carrier 
regulatory framework that the Commission reasoned just 8 years ago 
would stifle the evolution of the Internet.
    This rather remarkable suggestion served as a reminder that 
throughout the entire net neutrality debate the two most important 
things, reason and facts, have been in short supply. If we are going to 
have a discussion going forward about the proper framework for 
oversight of the broadband market, both must guide our way.
    I begin with the view that the Internet as an open platform for 
innovation is a reality, not an aspiration. Companies that did not 
exist 10 years ago have emerged as titans of industry based almost 
entirely on the Internet as a means to reach consumers.
    The argument that we need to promote an open Internet seems to both 
presume openness is threatened and that existing authorities and 
protections are unable to address that threat. Neither appears to be 
objectively true, and regulators have failed to demonstrate that there 
is an exigency requiring additional government involvement.
    I asked Chairman Genachowski last October to provide the Committee 
with the number of alleged violations of the Commission's ``open 
Internet'' principles under investigation, or that were the basis of 
prior Commission enforcement action, in part to inform our discussion 
about whether there is an exigency. Regrettably, the letter I received 
back contained none of the information I asked for.
    The net neutrality discussion has also lacked analysis of existing 
authorities and protections to determine the role they may play in 
preserving the openness of the Internet. For example, are the Nation's 
anti-trust laws and the agencies that enforce them unable to address 
the possibility that a company that owns both content and the means to 
distribute it may favor its own content over that of a competition?
    And the proclamations last week that the court's decision left the 
broadband market without any consumer protection capability completely 
ignore the fact that the most robust consumer protection agency in this 
country, the Federal Trade Commission (FTC), has enforcement 
jurisdiction. Ironically, this jurisdiction was actually conveyed to 
the FTC when the FCC removed the common carrier regime from these 
technologies, and would be eliminated if the FCC reverses that 
decision, actually harming consumers by reducing their available 
protections.
    We have had this discussion now for almost 4 years without facts 
and reason. This technology marketplace is far too important to the 
Nation's commercial health to be subjected to uninformed debate or 
reflexive regulatory actions.
    In my judgment, if the FCC were to take the action Chairman 
Genachowski and his colleagues appear to be considering, reclassifying 
broadband as a common carrier service, and if it does so without a 
directive from Congress and a thorough analysis of the facts and the 
potential consequences to investment, the legitimacy of the agency 
would be seriously compromised.
    I hope that we can take a step back to consider the consequences of 
such a decision and whether there are alternatives we can work together 
on to clarify the authority of the FCC while preserving an environment 
that encourages investment. I am confident we can find common ground, 
but that will not happen if the FCC takes this action.
    Mr. Chairman, again, thank you for holding this important hearing. 
I am sure it will not be our last on this subject. I look forward to 
Chairman Genachowski's testimony.

    The Chairman. Thank you very much, Senator.
    And now Senator Ensign?

                STATEMENT OF HON. JOHN ENSIGN, 
                    U.S. SENATOR FROM NEVADA

    Senator Ensign. Thank you, Mr. Chairman, and also thank 
you, Chairman Genachowski, for being here today.
    The plan that you have put forth is an ambitious, thought-
provoking document. It aims high and does not side-step the 
difficult politically charged issues. The dedication and 
tireless effort of the FCC staff is on display throughout the 
plan's 376 pages. Chairman Genachowski, you and your staff are 
to be commended for all of their hard work.
    Despite all that effort, however, I am somewhat 
disappointed with how the plan has turned out. The plan begins 
by saying the Government should play a limited role in the 
broadband ecosystem, but then it follows up with dozens and 
dozens of recommendations to do exactly the opposite. As I 
learn more about the National Broadband Plan, I see a lot more 
Federal spending, a lot more FCC regulation, and a lot more 
Government involvement in broadband. There are billions of 
dollars for broadband subsidies, a brand new digital literacy 
corps, mandates for cable TV boxes and broadband digital 
labels, and the suggestion that heavy-handed regulations like 
net neutrality and unbundling are needed.
    What I do not see are many recommendations to get the 
Government out of the way of one of our Nation's most 
innovative, successful, and competitive industries. The number 
of Americans who have broadband at home has grown from 8 
million in 2000, to nearly 200 million last year. Even in the 
worst of times, the private sector and Wall Street continue to 
put money into deploying and improving our country's broadband 
networks. By the FCC's own data, broadband providers have 
invested well over $100 billion in their own networks over the 
last 2 years, in spite of the recession. I simply do not see 
any signs of a gross market failure that might warrant the 
Government spending tens of billions of dollars to subsidize 
broadband, or using a heavier hand to regulate the marketplace.
    And I am not the only one who can see the FCC's 
justification for all this intervention. The Washington Post 
editorial board agrees with me, saying that, quote, ``such an 
assessment is premature at best.''
    Before it makes a single recommendation, the National 
Broadband Plan admits that ``technology costs and consumer 
preferences are changing too quickly in a dynamic part of the 
economy to make accurate predictions.'' That is a direct quote. 
And I completely agree with it. But then the plan spends the 
next 300-plus pages making predictions about technology costs 
and consumer preferences in order to justify its 200 or more 
recommendations.
    While I do have concerns with many of the recommendations 
in the plan, I do not want to give the impression that there is 
nothing of value in the report. In particular, I applaud that 
the plan places so much importance on finding more spectrum for 
wireless broadband. Congress and the FCC need to develop a 
comprehensive, long-term spectrum policy, and the National 
Broadband Plan helps to start that critical dialogue.
    I look forward to working with my colleagues and with the 
FCC in a bipartisan manner to engage all spectrum stakeholders 
to ensure America keeps pace with the coming mobile revolution.
    The plan would also stop the Universal Service Fund from 
subsidizing multiple competitors, would reform intercarrier 
compensation, would increase spectrum flexibility, and has some 
interesting ideas on maximizing infrastructure utilization. I 
look forward to learning more about these recommendations and 
many others contained in the National Broadband Plan during 
this hearing and in the coming weeks and months.
    And just one last comment on the Comcast v. the FCC 
decision. This clearly has had a major impact on the future of 
our country's broadband policy. The D.C. Circuit correctly, in 
my view, upheld the view that the FCC does not have unfettered 
power to regulate the Internet, and I hope that the Commission 
will continue its successful light-touch approach, as was 
described by my colleague, Senator Hutchison, to the Internet 
and will now abandon what I believe was a misguided pursuit of 
net neutrality regulations.
    I look forward to hearing from Chairman Genachowski on how 
he thinks the decision will affect other parts of the National 
Broadband plan.
    And one last comment to you, Chairman Genachowski, is that 
Nevada is the most urbanized State in the country, and what 
that means is we have the most distance in our rural areas and 
probably, even though it might not affect a huge population, we 
have a lot of people out there that have tremendous places that 
do not have coverage. Having said that, I do believe that the 
private sector is more the answer than the Government in trying 
to reach those last parts of our population who are currently 
underserved. I think through the right incentives, that the 
private sector will more than meet the challenge.
    I thank you, Chairman Rockefeller, for holding this 
hearing.
    The Chairman. Thank you, Senator.
    Mr. Chairman?

    STATEMENT OF HON. JULIUS GENACHOWSKI, CHAIRMAN, FEDERAL 
                   COMMUNICATIONS COMMISSION

    Mr. Genachowski. Chairman Rockefeller, Ranking Member 
Hutchison, members of the Committee, thank you for the 
opportunity to testify today on the National Broadband Plan.
    The plan, as you know, stems from a Congressional directive 
that the FCC prepare a national broadband plan that, quote, 
``shall seek to ensure that all people of the United States 
have access to broadband capability,'' include a strategy for 
affordability and adoption of broadband communications, and 
also recommend ways that broadband can be harnessed to tackle 
important national purposes.
    The plan addresses these Congressional requirements in a 
way that reflects a strong conviction that, as our Nation 
rebuilds its economy, broadband communications can and must 
serve as a foundation for long-term economic growth, ongoing 
investment, enduring job creation, and broad opportunity.
    As a Nation, we have work to do to seize the vast 
opportunities of broadband. The status quo is not good enough 
to maintain our global competitiveness in this rapidly changing 
world. Millions of Americans continue to live in areas that 
have no broadband at all. Studies place the U.S. as low as 18th 
when it comes to important attributes of broadband adoption and 
speeds. Our records show that roughly 65 percent adoption in 
the U.S. compares to much higher percentages, over 90 percent, 
in other countries in Asia and Western Europe.
    One study ranks the U.S. 6th out of 40 industrial countries 
in innovative competitiveness and 40th out of the 40 countries 
surveyed in the rate of change of innovative capacity. That is 
unacceptable.
    Second, certain communities within the U.S. are lagging: 
rural Americans, low-income Americans, minorities, seniors, 
tribal communities, and Americans with disabilities. For these 
groups, adoption rates are much lower than 65 percent, which is 
itself not good enough.
    Altogether, 93 million Americans are not connected to 
broadband at home, including 13 million children. And 14 
million Americans do not have access to broadband where they 
live, even if they want it. Again, unacceptable.
    Our FCC plan is a plan for action, a plan that is as strong 
as it is non-ideological and nonpartisan. The plan sets 
ambitious goals for the country, including access for every 
American to robust and affordable broadband service and to the 
skills to subscribe; broadband speed of at least 1 gigabit to 
at least one library, school, or other public anchor 
institution in every community in the country; affordable 100 
megabits-per-second to 100 million households; world-leading 
mobile innovation with the fastest and most extensive wireless 
networks of any nation; access for every first responder to a 
nationwide interoperable broadband public safety network.
    In addition to these and other goals, the plan lays out a 
robust, sensible, and efficient action plan for achieving them. 
It proposes a once-in-a-generation transformation of the 
Universal Service Fund from yesterday's technology to 
tomorrow's. It proposes recovering and unleashing licensed and 
unlicensed spectrum so that we can lead the world in mobile. It 
proposes ways to cut red tape, lower the costs of private 
investment, and accelerate deployment of wired and wireless 
networks. It proposes initiatives to foster vibrant and 
competitive free markets and empower consumers. It proposes a 
road map to tackle vital inclusion challenges so that everyone 
everywhere can enjoy the benefits of broadband. And it proposes 
ways in which broadband can be deployed to help solve many of 
our Nation's major challenges, including education, health 
care, energy, and public safety.
    On public safety, the plan lays out an action plan designed 
to finally deliver on the recommendations of the 9/11 
Commission that we have interoperable communications for our 
first responders, and I am pleased that the Chair and Vice 
Chair of the 9/11 Commission, as well as other bipartisan 
members, have endorsed the plan that the National Broadband 
Plan lays out.
    Against this backdrop, last week we announced a broadband 
action plan to implement the broadband plan. I would like to 
note that we started to act even before we did the plan. We 
adopted rules several months ago to give more flexibility to 
schools, to have schools under the E-Rate program be available 
for broadband, and we adopted rules to lower the cost of 
investment by speeding up tower siting for mobile broadband. So 
we have been acting already.
    In the plan we released last week, which was an 
unprecedented step in both agency planning and transparency, we 
propose a more than robust schedule of issues to consider and 
actions to take in the period ahead.
    Notwithstanding the decision last week in the Comcast case, 
I am confident that the Commission has the authority it needs 
to implement the broadband plan. Whatever flaws may have 
existed in the specific actions and reasoning before the court 
in that case, I believe that the Communications Act, as amended 
in 1996, enables the Commission to, for example, reform 
Universal Service to connect everyone to broadband 
communications, including in rural areas and Native American 
communities; take steps to ensure that we lead the world in 
mobile; promote competition and innovation on broadband 
networks; protect and empower all consumers of broadband 
communications; support robust use of broadband by small 
businesses to drive business expansion and job creation; and 
safeguard public safety and homeland security.
    I believe it is vitally important that the Commission act 
on the broadband plan's road map to protect America's global 
competitiveness and help deliver the extraordinary benefits of 
broadband to all Americans. I believe this essential mission is 
completely consistent with the Communications Act, and I can 
assure the Committee that our actions will be rooted in sound 
legal foundation designed to promote investment, innovation, 
competition, and the interests of consumers.
    I look forward to your questions and thank you.
    [The prepared statement of Mr. Genachowski follows:]

       Prepared Statement of Hon. Julius Genachowski, Chairman, 
                   Federal Communications Commission

    Chairman Rockefeller, Ranking Member Hutchison, members of the 
Committee, thank you for the opportunity to testify today on the 
National Broadband Plan.
    The Plan, as you know, stems from a Congressional directive that 
the FCC prepare a ``national broadband plan'' that ``shall seek to 
ensure that all people of the United States have access to broadband 
capability,'' include a strategy for affordability and adoption of 
broadband communications, and also recommend ways that broadband can be 
harnessed to tackle important ``national purposes.''
    The Plan addresses each aspect of these Congressional requirements 
in a way that reflects a strong conviction that, as our Nation rebuilds 
its economy, broadband communications can and must serve as a 
foundation for long-term economic growth, ongoing investment, and 
enduring job creation.
    Broadband is the indispensable infrastructure of the digital age--
the 21st century equivalent of what canals, railroads, highways, the 
telephone, and electricity were for previous generations.
    Multiple studies tell us the same thing--even modest increases in 
broadband adoption can yield hundreds of thousands of new jobs.
    Broadband communications increase the velocity of information, and 
the velocity of commerce.
    A broad array of people throughout the ecosystem--investors, 
entrepreneurs, business leaders, labor leaders, consumer advocates and 
others--agree that if the United States has world-leading broadband 
networks, we will see a powerful new wave of innovation, and business 
and job creation here at home.
    The title of one recent op-ed written by the CEO of a major 
American technology company said it well: ``Fix the bridges, but don't 
forget broadband.''
    We have work to do to seize the opportunities of broadband. The 
status quo is not good enough to maintain our global competitiveness in 
this rapidly changing world.
    First, studies place the U.S. as low as 18th when it comes to 
important attributes of broadband adoption and speeds. Our record shows 
roughly 65 percent adoption in the U.S. compared to significantly 
higher adoption percentages--up to 90 percent or more--for some 
countries in Asia and Western Europe.
    One study ranks the U.S. 6th out of 40 industrial countries in 
innovative competitiveness--and 40th out of the 40 in ``the rate of 
change in innovative capacity.'' The first of those rankings is enough 
of a concern. That last-place statistic is the canary in the coal mine.
    It shows that we will not succeed by standing still, or even moving 
at our current pace.
    Second, certain communities within the U.S. are lagging--rural 
Americans, low-income Americans, minorities, seniors, Tribal 
communities, and Americans with disabilities. For these groups, 
adoption rates are much lower than 65 percent.
    Altogether, 93 million Americans are not connected to broadband at 
home, including 13 million children. And 14 million Americans do not 
have access to broadband where they live, even if they want it.
    Finally, the work of the FCC staff on the broadband plan showed 
that the costs of digital exclusion grow higher every day. Several 
years ago, not having broadband could have been thought by some to 
simply be an inconvenience. Now, broadband access and digital literacy 
are essential to participation in our economy and our democracy.

   For example, more and more companies are posting job 
        openings exclusively online. If someone is unemployed and does 
        not have access to broadband, opportunities are passing them 
        by.

   Children are increasingly given homework and research 
        assignments that require online access Studies show that 
        combining in-person instruction with online learning can 
        significantly improve educational results. Children are at a 
        disadvantage if they can't connect to broadband at home, or are 
        in schools with inadequate broadband connections.

    As I believe Congress anticipated when it directed the FCC to 
prepare a National Broadband Plan, the plan that the FCC has submitted 
is a plan for action, and a call to action, that these times demand.
    The staff has produced a plan that is as strong as it is non-
ideological and non-partisan. It was the outcome of an extraordinary 
process that has been unprecedented in many respects: unprecedented in 
its openness and transparency; in the breadth and depth of public 
participation; in its professionalism; and in its focus on data and its 
analytical rigor.
    The Plan sets ambitious goals for the country, including:

   Access for every American to robust and affordable broadband 
        service and to the skills to subscribe.

   Broadband speed of at least 1 gigabit to at least one 
        library, school, or other public anchor institution in every 
        community in the country.

   Affordable 100 megabits-per-second to 100 million 
        households.

   World leading mobile innovation, with the fastest and most 
        extensive wireless networks of any nation.

   Access for every first-responder to a nationwide, 
        interoperable broadband public safety network.

    In addition to these and other goals, the Plan lays out a robust, 
sensible and efficient roadmap for achieving them:

   It proposes a once-in-a-generation transformation of the 
        Universal Service Fund from yesterday's technology to 
        tomorrow's.

   It proposes recovering and unleashing licensed and 
        unlicensed spectrum so that we can lead the world in mobile.

   It proposes ways to cut red tape, lower the cost of private 
        investment, and accelerate deployment of wired and wireless 
        networks.

   It proposes initiatives to foster vibrant and competitive 
        free markets and empower consumers.

   It proposes a roadmap to tackle vital inclusion challenges, 
        so that everyone, everywhere can enjoy the benefits of 
        broadband.

   And it proposes ways in which broadband can be deployed to 
        help solve many of our Nation's major challenges: including 
        education, health care, energy, and public safety.

    On public safety, America's first responders are on the front lines 
every day protecting our families and communities. The National 
Broadband Plan lays out a multi-part game plan designed to finally 
deliver on the recommendation of the 
9/11 Commission that we have interoperable communications for our first 
responders.
    I am pleased that several bipartisan members of the 9/11 
Commission--including Chair and Vice Chair, Thomas Kean and Lee 
Hamilton--have praised the Plan's public safety provisions as ``a clear 
roadmap for finally reaching th[e] goal'' of interoperability.
    I am similarly heartened that a broad array of companies--including 
companies that often disagree on key communications policies--as well 
as non-profits, consumer and public interest groups have voiced strong 
support for the Plan and for moving expeditiously toward 
implementation.
    If I may pull out one quote, from the CEO of a major technology 
company in Business Week:

        ``The vital communications systems that make our economy work 
        and serve as a platform for business innovation and social 
        interactions are second-class. Sadly, many of us have accepted 
        that. It's time to overcome our broadband complacency. The 
        national broadband plan sent to Congress by the Federal 
        Communications Commission is critical to our economic and 
        national security. Without a plan, we simply cannot compete.''

    I believe the Plan will deliver extremely significant economic and 
fiscal benefits over time, as broadband is harnessed for job creation 
and new investment.
    And cognizant of the challenging economic times we now confront, 
the Plan is fiscally prudent. The Plan recognizes the overwhelming 
primacy of private investment in achieving our national broadband 
goals. And it identifies opportunities for new spectrum auctions that 
could generate billions in revenue, exceeding any funding or 
investments that the Plan suggests for Congressional consideration.
    As we move forward, working with this Committee and all 
stakeholders, the same principles that guided the creation of this plan 
will guide its implementation, including:

   Processes that are open, participatory, fact-based, and 
        analytically rigorous.

   A recognition of the transformative power of high-speed 
        Internet.

   The essential role of private investment in extending 
        broadband networks across our Nation.

   The profound importance of vibrant competition to bring 
        consumers the best services at the best prices, and to spur 
        world-leading innovation and ongoing investment.

   The necessity of tackling vital inclusion challenges and 
        promoting universal digital literacy, so that everyone, 
        everywhere can enjoy the benefits of a broadband Internet that 
        is open, safe, and trusted.

   And a recognition that government has a crucial, but 
        restrained, role to play, focusing with laser-like precision on 
        efficient and effective solutions.

    The important point is to act on the challenges and opportunities 
of broadband. Other countries are doing so; they are developing 
infrastructure to attract technology innovators. A recent New York 
Times article reported that, for the first time, the Chief Technology 
Officer of a major American tech company, has moved to China. In a 
report from China, the newspaper wrote: ``Companies--and their 
engineers--are being drawn here more and more as China develops a high-
tech economy that increasingly competes directly with the United 
States.''
    Against this backdrop, last week we started the essential 
transition from planning to implementation, releasing a detailed agenda 
laying out a schedule for Commission proceedings and actions over the 
next year, driving forward on the broadband plan. This is an 
unprecedented step in both planning and transparency. It reflects both 
the importance as well as the magnitude of the workload ahead.
    Notwithstanding the decision last week in the Comcast case, I am 
confident that the Commission has the authority it needs to implement 
the broadband plan. Whatever flaws may have existed in the specific 
actions and reasoning before the court in that case, I believe that the 
Communications Act--as amended in 1996--enables the Commission to, for 
example, reform universal service to connect everyone to broadband 
communications, including in rural areas and Native American 
communities; help connect schools and rural health clinics to 
broadband; take steps to ensure that we lead the world in mobile; 
promote competition; support robust use of broadband by small 
businesses to drive productivity, growth, job creation and ongoing 
innovation; protect and empower all consumers of broadband 
communications, including thorough transparency and disclosure to help 
make the market work; safeguard consumer privacy; work to increase 
broadband adoption in all communities and ensure fair access for people 
with disabilities; help protect broadband communications networks 
against cyber attack and other disasters; and ensure that all broadband 
users can reach 911 in an emergency.
    I believe it is vitally important that the Commission act on the 
broadband plan's roadmap to protect America's global competitiveness 
and help deliver the extraordinary benefits of broadband to all 
Americans. I believe this essential mission is completely consistent 
with the Communications Act, and I can assure the Committee that our 
actions will be rooted in a sound legal foundation, designed to promote 
investment, innovation, competition, and consumer interests.
    Thank you.

    The Chairman. Thank you very much, Mr. Chairman.
    I will start and be followed, of course, by Senator 
Hutchison, then Senator Dorgan, then Senator Johanns. Then we 
will go on from there in order of arrival.
    As I noted at the outset, Mr. Chairman, the National 
Broadband Plan has more than 200 recommendations, and it is 
roughly 375 pages. It has recommendations for the Department of 
Defense, recommendations for the Department of Transportation, 
Department of Education, Department of Labor, Department of 
Justice, Federal Trade Commission, National Institutes of 
Standards and Technology, National Academy of Sciences, Food 
and Drug Administration, and a slew of others. In fact, it says 
by my count--that I got help on--``Congress should'' 139 times.
    Now, this just simply begs the question. In an effort of 
this magnitude, what are your priorities for the FCC coming out 
of this plan?
    Mr. Genachowski. Well, the priorities, I think, are clearly 
articulated in the plan. One is reform and update the Universal 
Service Fund so that broadband communications can reach every 
American, including rural areas, which responds to the issues 
you made in your opening statement with respect to both wired 
and wireless broadband; second, making sure that we lead the 
world in mobile by having enough spectrum available to take 
advantage of the huge opportunity for investment, innovation, 
and job creation that we have; third, making sure that we 
deliver on the 9/11 Commission recommendations with respect to 
a public safety network and that our communications networks, 
our data networks are protected against attack; fourth, that we 
promote vibrant competition on our broadband communications 
networks; and fifth, that we protect and empower consumers with 
respect to broadband communications wherever they live.
    The Chairman. What I am interested in is actual decisions 
and plans, things that are ready to go. As I indicated at the 
hearing we had some time ago on this, I wanted, when the plan 
came to us, that--you know, we would just be off and running. I 
do not get that impression from this. What I want to see is 
real changes. I want to see that happen for real consumers 
wherever they live.
    On the FCC's legal authority, vis-a-vis Comcast, as you 
acknowledge in your testimony, last week the District of 
Columbia issued a decision that creates new complexities for 
you, for all of us. To better understand this, let us go back 
to the beginning. The case before the court began with Comcast 
customers discovering that the company was interfering with 
their use of certain Internet applications. The FCC then found 
that Comcast had ``significantly impeded consumers' ability to 
access Internet content and applications of their choice.''
    So my question is simple. As a result of the court 
decision, what happens if Comcast engages in the same practices 
today?
    Mr. Genachowski. Well, Mr. Chairman, the first thing that 
the case reminds us is that requirements to preserve a free and 
open Internet have been in place for quite some time. They were 
adopted by a bipartisan commission several years ago before I 
got there. What we have been seeking to do at the FCC is make 
sure that there is a sound legal foundation under it. There 
were some process issues with that decision, and I think we see 
the consequences of that. We need in my opinion to make sure 
that the free and open architecture of the Internet, the 
understanding that participants in broadband have that 
blocking, degrading, taking advantage of consumers is 
unacceptable, that we continue that. These are policies that 
have promoted not only consumer interests but investment, 
innovation, competition, and I think it is essential that the 
freedom, the openness of the Internet for consumers, for 
speakers, for entrepreneurs continue.
    The Chairman. That is impressive, almost elegiac. Where are 
the results?
    Mr. Genachowski. With respect to----
    The Chairman. When are we going to see things happening? It 
is a wonderful report. It has all kinds of wonderful visions of 
life. But I do not see how it helps any of my people in West 
Virginia except as a vision, as a purpose. I do not see action 
plans.
    Mr. Genachowski. Mr. Chairman, if I could, we released last 
week something that has been unprecedented for the Commission, 
a detailed plan for over 50 real actions by the Commission that 
will help ordinary Americans. And if I may, even before we 
released the broadband plan, when we found good ideas that we 
could act on, we took them. And so we identified a problem with 
the E-Rate program where schools could not use their facilities 
to support people in the community. And rather than waiting for 
the broadband plan to be released, we said this is an idea that 
is ripe. Let us do it. In fact, before we issued the broadband 
plan, we took that action and schools are now able to use E-
Rate funding for broader purposes to help their communities.
    Similarly with respect to mobile, we identified, over the 
course of the plan, obstacles to mobile companies in some cases 
building out their networks to rural America, and we adopted 
rules that are speeding up the towers that are necessary for 
mobile broadband to roll out.
    So we have already taken actions and the staff of the 
Commission is hard at work every day to continue to act for 
consumers, to promote investment, to promote innovation, and to 
extend the opportunities of broadband to all Americans.
    The Chairman. Sounds good, Mr. Chairman.
    My time is up.
    Senator Hutchison?
    Senator Hutchison. When you say that you are adopting so 
many different ways to improve the capability for more 
consumers to have Internet access or broadband, why did you not 
also include a recommendation to have an incentive for a 
private company to make these types of investments? Would that 
not vastly expand the opportunities for more service to 
consumers and could it not be one of the many recommendations 
that you made?
    Mr. Genachowski. Senator, if I may. The plan contains a 
number of recommendations to incentivize greater investment. It 
takes a look at right-of-way issues, other obstacles to 
investment, lowering the costs of investment to incentivize 
faster investment, greater investment. Broader deployment is a 
core objective of the plan, and there are a number of 
recommendations in the plan designed to do that. I hope we 
caught them all. If there are any that we missed, we would be 
more than happy to work with you because there is no question 
that private investment will drive the build-out and deployment 
of broadband networks, that incentivizing that, making sure 
there is competition, is essential.
    Senator Hutchison. So you would look at another type, which 
would be an incentive for private companies to make the 
investment so that the Government would not be the only source?
    Mr. Genachowski. We would be happy to work with you on 
that.
    Senator Hutchison. Thank you.
    On the issue of the net neutrality rulemaking, I had sent 
you a letter a while back saying, is there really basically a 
need for this? Are there a lot of complaints? Is there 
something in the records that shows there is a real need to 
start being heavier in the regulatory area?
    My question is, has the Commission conducted an economic 
analysis that would indicate that there is a need for more 
regulation when the sort of lighter regulatory hand has 
produced so many good results in the last 10 years?
    Mr. Genachowski. Senator, a bipartisan commission several 
years ago adopted open Internet rules, and since then I think 
there has been large compliance with them. I agree in a light-
touch approach, but I think the Commission had already 
concluded that these kinds of steps are essential. We launched 
a proceeding that was designed to address a number of the 
procedural issues that existed, clarified to bring greater 
certainty and predictability to this area, and to make sure 
that we preserve the freedom and openness of the Internet for 
competitors, for entrepreneurs, for innovators, for speakers. I 
am confident that we can do that, and I am confident that we 
can do that in a way that is consistent with a light-touch 
approach to adopting rules in this area.
    Senator Hutchison. I would agree with you that the 
Commission policy that was bipartisan was to open it and 
basically to have the light touch. But, I think the Comcast 
decision by the court should be at least a warning flag to the 
FCC that it is a heavy hand and the Commission does not have 
the authority from Congress to actually use it and that it 
overstepped its bounds. I would just ask maybe what is your 
interpretation of the court opinion if you differ from mine?
    Mr. Genachowski. Senator, my focus has been on policy 
principles in this area like promoting investment, innovation; 
promoting competition; taking seriously the needs of consumers 
every day, and we have developed through the broadband plan and 
otherwise a set of concrete action steps to get there; 
reforming Universal Service; making sure that we unleash 
mobile, promoting competition; and promoting the interests of 
small businesses, the engine of job creation and economic 
growth in our economy. There are a whole series of areas that 
we have been working very hard to identify the policy steps 
that will promote the global competitiveness of the United 
States and the interests of all consumers. That is what I am 
focused on.
    We inherited a landscape that had more unpredictability and 
instability in it than I would have liked. The court decision 
reminds us of that. We have an obligation to make sure that as 
we protect and empower consumers, as we promote innovation, as 
we promote investment, that our decisions are on a solid legal 
foundation. There are lawyers, obviously, hard at work on this. 
I am convinced that we can find a way consistent with the light 
touch in this area, but consistent with being very serious 
about promoting innovation, protecting consumers, and promoting 
investment, that we can get to a place that works for the 
country and that promotes the global competitiveness of the 
United States.
    Senator Hutchison. Well, I will just say that many of the 
commentators are very concerned that all of this process is 
going to mean we are going to spend a lot of money on lawyers, 
and not as much on innovation, and it is going to cause more 
confusion and instability in investment than what I think you 
are stating.
    And I agree. The goal is to have more investment, more 
openness, more competition, and more availability for 
consumers. So, I just hope you will keep the light touch as 
much a part of your thinking as all of the process and, by 
trying to define so much, maybe having more money spent on 
lawyers than innovation.
    Thank you.
    The Chairman. Thank you, Senator Hutchison.
    Senator Dorgan?

              STATEMENT OF HON. BYRON L. DORGAN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Dorgan. Mr. Chairman, thank you very much.
    Mr. Genachowski, first of all, on the broadband plan, I 
want you to make things happen and make good things happen. So 
I support what you are trying to do. I know the devil is in the 
details, but I want you to implement an aggressive broadband 
plan.
    But I want to talk about this issue of net neutrality, or 
what I call Internet freedom. I am not a big fan of the light 
touch, as a matter of fact. I do not want over-regulation for 
sure. But you know, a decade ago we had regulators come to town 
boasting about a new day with a light touch, and at the end of 
the decade, we discovered 6, 8, 10 years of willful blindness 
by referees was not the way to deal with the free marketplace.
    The free marketplace is a wonderful place. Free and open 
markets are important, but you need a referee with a striped 
shirt and a whistle to call the fouls. And the FCC is a 
referee. And I want you to have the touch that is necessary to 
protect the interests of the American people and the citizens 
who use the Internet. This is an unbelievable innovation in our 
lives, truly unbelievable.
    Let me ask a couple of questions. Is it not the case that 
the Internet was built, developed, and began to flourish under 
the rules that existed, which included the rule of 
``nondiscrimination?''
    Mr. Genachowski. Yes.
    Senator Dorgan. And so that nondiscrimination requirement 
represented the way the Internet was created, and the purpose 
of it was to make sure that the marketplace would pick winners 
and losers, not some gatekeeper or not some toll booth that had 
the money and the size. The marketplace would pick winners and 
losers. Is that correct?
    Mr. Genachowski. I agree with that, yes.
    Senator Dorgan. And so without nondiscrimination rules, 
perhaps a Sergei and Larry in a dorm room someplace that 10 
years later would become Google might never have access to 
someone in Minot, North Dakota who wishes to access that 
website because they perhaps could not afford to pay the toll 
that someone wanted to exact.
    And let me quote Mr. Whittaker, the famous quote, going 
back to AT&T, saying look, these are my pipes. I do not want 
somebody using my pipes free of charge, and so it goes.
    Then the question is, who with their new idea has access to 
get on the Internet or to present their idea to everyone in the 
world without discrimination?
    So now we have a circumstance where the nondiscrimination 
rules are gone because the FCC determined that the Internet was 
a communications service rather than a telephone service and 
used, I believe, Title I. But even when they did that, even 
that different FCC said we are going to establish four 
principles that are attached to it, but forgot and left out the 
principle of nondiscrimination, which has persuaded Olympia 
Snowe, and myself, and others to fight very hard to say you 
cannot possibly go down the road here and say that we are 
against a nondiscrimination policy with respect to the 
Internet. I mean the opposition to that is to say, no, we are 
for a discrimination policy. That cannot possibly be the public 
policy piece that we choose.
    And so let me ask the question then about, what does this 
court case mean and what are your alternatives to respond to 
it? Because I want you to respond to it aggressively to the end 
stage of which you are able to develop the principles that 
recreate the nondiscrimination rules that always existed.
    What we are buying these days as consumers are bundled 
products, Internet, telephone service, all in a big bundle, and 
now we are told, well, this Internet, this unbelievable 
innovation in our lifetimes, should be over here and not 
subject to the nondiscrimination rules under which the Internet 
started and flourished. What are your options?
    Mr. Genachowski. I agree with your description of history 
and the description of what we are trying to do as preserving 
an openness, a freedom that has existed for a very long time 
that was made binding by the prior commission and that needs to 
continue. To me that is the focus.
    There are legal issues now that we have to address in view 
of the decision. There are lawyers working very hard in good 
faith on identifying the way to move forward that is based on a 
strong legal foundation. I am convinced we have that authority 
under the Communications Act, and I trust our lawyers are 
working with all the lawyers who have an interest here to 
identify the strongest legal foundation for preserving the 
freedom and openness of the Internet, and making sure that the 
next generation of entrepreneurs have a fair chance, and that 
consumers of Internet services are protected.
    Senator Dorgan. Chairman Genachowski, I think there are two 
ways ahead as well. One is using your existing authority. It 
was, after all, the FCC which decided to take Internet out of 
Title II and put it in Title I and thereby abolish the 
nondiscrimination rules. So I mean, I think you have that 
opportunity. You have a couple of other opportunities, and of 
course, the Congress has an opportunity to address this. But I 
do not think between now and the end of the year it is likely 
that Congress is going to be addressing it. So I think we are 
going to have to look to the FCC to do it because the FCC 
unraveled it in the first place. So you have the capability, I 
think, using existing authority in several different ways to 
address it.
    But I did want to, again, just say that I know that there 
is a lot of language around: network neutrality, Internet 
freedom, all these things. It really comes down to the point of 
the head here that we have always had a nondiscrimination 
requirement, saying that the big interests that now can begin 
to control a lot of this cannot discriminate. So that is the 
basis of the debate that we are having, and Senator Snowe and I 
have worked on this for a long, long, long while. And I hope 
that the end stage of this is, on behalf of American consumers, 
to restore the nondiscrimination rules. I do not want to in any 
way injure innovation, the growth of the Internet, but the fact 
is, it was created and grew under the very rules that we are 
trying to reestablish.
    So listen, I hope that you will not shy away from taking 
the tough positions here, or making tough choices of doing what 
you need to do on behalf of the American consumer as a 
regulator. That is the role of the FCC.
    So thank you for being there and thank you for taking my 
advice, I hope.
    [Laughter.]
    The Chairman. Thank you, Senator Dorgan.
    Senator Johanns, to be followed by----
    Senator Ensign. I thought I was next. I was here when you 
gaveled.
    The Chairman. Well, I am not going to get into a fight. I 
am going to call on Senator Johanns, and then I am going to 
call on Senator John Ensign, and then Senator Isakson, and then 
Senator Begich.

                STATEMENT OF HON. MIKE JOHANNS, 
                   U.S. SENATOR FROM NEBRASKA

    Senator Johanns. Chairman Genachowski, thank you very much. 
Chairman Rockefeller, I appreciate the fact that you take on 
these tough issues because this is a tough policy issue.
    Chairman Genachowski, let me, if I might, focus on a 
statement that you have made a couple of times here, and it is 
in your written testimony. And that statement is that you 
believe you have the power, the authority within the 
Communications Act, to implement the broadband plan. Now, I 
read a part of that plan that talks about net neutrality, which 
is on page 58 of the plan.
    Now, here is where I am coming from on that. I looked first 
at this Comcast case and there is something in this case in the 
very first paragraph that tells me a lot. The court says, ``In 
this case, we must decide whether the Federal Communications 
Commission has authority to regulate an Internet service 
provider's network management practices.'' And it goes on to 
say in the second sentence of this very lengthy opinion, 
``Acknowledging that it has no express statutory authority over 
such practices, the Commission''--and then the Commission goes 
on to put forth this argument that you have incidental 
authority.
    Now, here is why I cite this section, as I start my 
questioning today. As a former cabinet member, there were many 
things I thought were just and fair and would be well received, 
but the first question I always asked legal counsel was, do I 
have the authority to do this?
    Senator Dorgan and I agreed on payment limits. We might 
have had a different approach, but I did not have the authority 
to do that on my own.
    My first question to you is the Commission has already 
conceded that you do not have that express authority to 
implement net neutrality under Title I. Is that not the case?
    Mr. Genachowski. I do not agree with that, sir.
    Senator Johanns. Well, where is the authority? Why did the 
Comcast court not find that authority?
    Mr. Genachowski. The Comcast court found a series of 
problems with the process and reasoning by the Commission in 
the Comcast case, which is clearly spelled out in the opinion.
    Let me say that there are a series of very important public 
policy objectives: extending broadband to rural America, 
protecting and empowering consumers, making sure that small 
businesses--but these go together. And it is essential for our 
competitiveness, for our economy, for all Americans that we 
take an approach to the Communications Act that is consistent 
with the purposes of the Communications Act and the statutory 
language.
    To your point about legal counsel, I completely agree. We 
will not do anything that is not supported by counsel where we 
cannot make a decision and go to court and say this is within 
our authority under the statute.
    Senator Johanns. And under Comcast, you have already been 
told. I mean, this case is very, very specific in saying you do 
not have the authority to do this. Even some of your own 
Commissioners, your fellow Commissioners, are acknowledging, 
well, if we do not have the authority here, we will go under 
Title II. Is that not the case?
    Mr. Genachowski. Well, you would have to ask my colleagues, 
but I can assure you that anything that we do in all of the 
areas concerning communications will have a solid legal 
foundation. That is our goal. And I completely agree with you 
that that is our responsibility.
    Senator Johanns. OK.
    The second piece of this--and let me zero in, if I might, 
on Title II because one of the Commissioners, as you know, 
said, well, let's just go down the Title II route. Here is my 
problem with that.
    I have reviewed the orders of the Commission. 2002, Cable 
Modem Order. 2005, Wireline Broadband Order. 2007, Wireless 
Broadband Order. And the 2005 Brand X case that again makes it 
very, very clear to me that there is no way legally that you 
could proceed under Title II to try to regulate broadband in a 
way that would establish firm legal authority. Would you agree 
with that?
    Mr. Genachowski. Our counsel is in the process of 
evaluating, working with all of the outside counsel who are 
interested, and I understand that there are a number of 
different options and possibilities. But I do not believe that 
prior decisions have closed the door on solid bases in the 
Communications Act to proceed on Universal Service, on small 
businesses, on consumers, on promoting competition and 
innovation.
    Senator Johanns. Here is the difficulty, and already I have 
run out of time and my hope is that we will have another round 
of questions because this is fundamental stuff.
    But here is where you are, I think. I think you have been 
handed your hat in your hand by the Comcast case. I think under 
your own prior rulings, the Commission's rulings, and under the 
Brand X case, you cannot proceed under Title II. It would be 
like remaking the world. But the bottom line is this: if you 
want to make policy, then what you need to do is pay the filing 
fee, do a lot of parades, raise money, and start at this end of 
the table. It is just a situation, I believe, where Congress 
has not given you the power that you are attempting to assert 
under portions of this broadband plan, and we in Congress 
should tell you that. So any court that may review this record 
should understand that as a Senator, I do not believe you have 
the power, and I think the courts are telling you that. The 
only solution to that is, therefore, to come back and work with 
us and try to work through these differences of policy 
implications.
    Does that make sense to you?
    Mr. Genachowski. Well, I would look forward to working with 
you and the Committee on a path forward that accomplishes what 
I think are broad goals that we have been discussing. So, yes.
    Senator Johanns. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    And now Senator Isakson?
    Senator Hutchison. I think you said Ensign.
    The Chairman. Ensign. Ensign. See, you spooked me. It says 
Ensign right here.
    Senator Ensign. Thank you.
    I think it is important for us to drill down a little 
further on Title I versus Title II. Are you currently 
considering switching broadband from Title I to Title II?
    Mr. Genachowski. I have instructed our lawyers to take the 
recent decision seriously, to take all decisions seriously, and 
to evaluate what our options are. So I have instructed them to 
look at the policies that I think Congress and the Commission 
have been clear about and determine a solid legal foundation 
and a path to move forward.
    Senator Ensign. Obviously, I disagree with Senator Dorgan 
on this. I think he wants you to go to Title II because he does 
not think that we have the time here in Congress to do it, and 
I would agree with that. We do not have the time. Once again if 
you take it down that track, I think it is a very dangerous 
thing to do. My personal belief is this is regulation looking 
for a problem.
    Let us consider a hypothetical. What if you had a large 
user of the network to the point where that large user actually 
degraded somebody else's chance for getting on the network? 
Under that scenario, should the network owner be able to manage 
its network in a way that makes sense, that protects the 
smaller user, and that keeps the Internet free?
    Mr. Genachowski. Well, Senator, we have tried to be clear 
that reasonable network management is appropriate, consistent 
with principles of preserving a free and open Internet.
    Senator Ensign. Well, I believe that in the world of 
network neutrality that has been proposed by others, that you 
can end up with a situation of unintended consequences where 
broadband networks can get jammed up. There is more and more 
technology out there, and more and more users on the Internet 
than ever.
    And so the point that I am making is that I disagree with 
Senator Dorgan. I think the Internet has been fabulously 
successful. Ever since broadband was taken from Title II to 
Title I, it has been fabulously successful. We have had 
exponential growth, and I think we are going to continue to 
have that with light touch regulations. If we get into heavy-
handed rules, if there was a problem out there that was 
specific, if we had the studies showing economic harm to our 
country, it might be a different story. But we are certainly 
not seeing the kinds of widespread problems, or hardly even 
isolated problems, to justify a major policy change such as 
network neutrality.
    So I just hope that you are very cautious when we move 
forward, and I agree with Senator Johanns that this should be 
something that the Congress should deal with with multiple 
hearings, make it public, and make it the responsibility of 
policymakers up here instead of doing it at the FCC.
    I appreciate all the work that you all are doing. I know 
you have a difficult job in this very technical area.
    The Chairman. Is that it? OK.
    Senator Isakson?

               STATEMENT OF HON. JOHNNY ISAKSON, 
                   U.S. SENATOR FROM GEORGIA

    Senator Isakson. Chairman Genachowski, would you favor 
reclassifying the Internet from I to II?
    Mr. Genachowski. We have not settled on a path forward. We 
are focused on the policy objectives around rural America and 
consumers and small businesses that we have been discussing.
    Senator Isakson. I know you used the term ``we.'' I was 
asking the question, do ``you'' think it ought to be changed 
from classification I to II?
    Mr. Genachowski. I have not made any decisions yet. We are 
evaluating the court decision, and my focus has been on 
policies to promote economic growth, job creation, and the 
issues that we have talked about.
    Senator Isakson. If--and this is a hypothetical question. 
If you moved Internet access from I to II, would you, to be 
consistent, want to reclassify Internet services and other 
applications as well?
    Mr. Genachowski. I am not sure I understand the question, 
but in part, that is because of where we are in our process. My 
focus has been, how do we make sure that all consumers, all 
small businesses, all investors can have a climate where we 
maximize the benefits to broadband of all Americans. And there 
are many important issues here, including making sure that 
rural America has a fair chance on broadband, small businesses, 
consumers. These are central issues for us every day. They are 
central issues on the Communications Act. The Communications 
Act makes it very clear that we should be concerned about rural 
America, concerned about consumers, concerned about small 
businesses, concerned about investment and innovation. And in a 
changing world, these are difficult challenges and I 
acknowledge that.
    Senator Isakson. This is just another opinion question. 
When we went through telecommunications deregulation back, I 
guess, 2 decades ago now, somewhere along there, it ended up 
fostering a tremendous amount of expansion in new products, new 
innovations, new companies, and new businesses that exist and 
flourish today because of it. Do you think too much regulation 
is an inhibitor to getting the benefits from technology like 
broadband and like the Internet?
    Mr. Genachowski. Yes. I think it is important to make sure 
that any rules and regulations in this area are narrowly 
tailored, that they are designed to promote innovation, to 
address economic issues as we have in rural America, and I do 
think it is important with the Internet and other aspects of 
broadband communications to have the rules that are necessary 
but no more.
    Senator Isakson. Well, I really appreciate all the words of 
that answer, but in particular the word ``promote'' because the 
expansion of the wonder of the Internet is what we are looking 
to in the future, both to reach rural people, as well as 
wireless broadband to get to areas where information has never 
been before.
    I have been reading your report, and on page 273, 
recommendation 13.6; I will just read the recommendation 
because I think the Commission is saying with this 
recommendation what I am trying to say. It says: ``Congress 
should consider eliminating tax and regulatory barriers to 
telework.'' This is the section where you promote 
telecommunications. Teleworking is something we ought to be 
promoting to maximize the environmental benefits and everything 
else. But most of our labor laws, overtime laws, and many 
regulations that come under the Department of Labor or from the 
Congress today actually are inhibitors to telework and the use 
of wireless broadband or broadband technology.
    So in your own report, you make reference to the restraints 
that regulation can bring to restrict the expansion and the use 
of a benefit like Internet access and broadband. So follow that 
along as you go through the decisions that you make.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Isakson.
    Senator Begich?

                STATEMENT OF HON. MARK BEGICH, 
                    U.S. SENATOR FROM ALASKA

    Senator Begich. Thank you very much, Chairman Genachowski.
    Thank you for being here, and I appreciate it. I am not 
going to get into net neutrality, Internet freedom. First, I am 
not a lawyer. I do not intend to debate it and, no offense to 
my friends who are lawyers, I do not intend to ever be one 
either. I will leave that to the process that you are going 
through.
    I want to be very frank with you, very parochial, and then 
I have a couple of questions I am just going to put on since I 
have heard some of the debate here.
    But first, I know as you move forward on the Universal 
Service Fund, and that is kind of your first stage, I know I 
have harassed you before and I know we have tried to get a 
schedule. I know you have some issues and cannot get there yet. 
But I would hope that you can be in Alaska prior to that 
because the use of the USF fund is pretty critical for us, and 
I would hope that you can make that commitment. Again, I know 
you are working on it and your office is, and we are I think 
badgering you every week. So to us that is important before you 
move down the path aggressively on the USF fund. So if you have 
a comment on that, I would appreciate that.
    The other is a question in regards to, as you rolled out 
your plan, one of the things you had in there was FCC Office of 
Tribal Affairs and Tribal Seat on the USAC Board. What is your 
timetable for that?
    Mr. Genachowski. As soon as possible, Senator. Let me get 
back to you with a specific timetable, but it was very 
important to us to identify in the plan the incredible 
shortcomings on our tribal lands of Native Americans with 
respect to communications, and we take it very seriously, and 
we look forward to working with you on moving forward on that 
quickly.
    Senator Begich. Please let us know on the timetable.
    Again, a commitment on coming to Alaska? Yes, no?
    Mr. Genachowski. Yes, as soon as I can. I am looking 
forward to it.
    Senator Begich. Before you go too far down the road on 
Universal Service Fund reform?
    Mr. Genachowski. I will do everything I can to get to 
Alaska as soon as I can, and I am looking forward to it.
    Senator Begich. We will be on the phone every 3 days then.
    [Laughter.]
    Senator Begich. But let me ask you--again, I do not want to 
get into Internet freedom because your plan is much broader 
than that. I mean, you have some great stuff in there on 
education, health care, which again for a rural State like 
mine, it is going to be very valuable, some of the expansions 
and some of the efforts there.
    But I want to go to the original question that the Chairman 
asked. I know when we do plans, when I was mayor, we would 
always have ``the plan.'' Then we would have the work flow with 
specific timetables. I know you have laid out--I have read the 
release in regard to several things that you are aggressive 
about.
    Do you have a workflow schedule that can say, for example, 
item A, item B, item C, just as you have laid out in your 
release I think you did last week or the week before that says 
these are our dates and milestones that we are planning to 
target? I think that is where the Chairman was partially going, 
was the plan has a lot of stuff in there. And there will be 
complaints and considerations that we want to give and put on. 
But when you set these out, a specific timetable so we can be 
honest with you, hold you accountable for what you said you 
would do in this plan. Do you have something like that 
available?
    Mr. Genachowski. I think the bureau chiefs and office 
chiefs at the FCC either have or are working very hard on 
specific workflows to implement what you saw in the 
implementation plan.
    But I am very proud of the implementation plan that the FCC 
released last week, unprecedented in the history of the FCC to 
produce a transparent plan with a schedule over the course of a 
year of really quite a significant volume of actions. That was 
a breakthrough for the FCC. I appreciate the work of the staff 
that went into producing that.
    Senator Begich. Yes. I do not disagree with you. I just 
want to get dates and times that go with it. For example, I 
loved one of the examples you gave which was the utilization of 
the services that are in schools because that was in Alaska an 
exempted plan, and we thank you for taking that as an example 
and using it nationally because we thought the rules, to be 
very blunt with you, were foolish when they first were 
established. You have discovered that now in your new role, and 
now made that a national program, which we appreciate.
    So I guess that is what is I am looking for. I just want to 
see that, and I think that is important.
    I have to keep glancing at Mr. Udall's clock to see where I 
am at. He has a clock. I do not.
    In all these plans, one of the concerns I have--and not 
only with yours but many other Departments and so forth that 
are developing plans. Do you have a financial match? Meaning 
you have laid out what you want to do. All this takes 
resources, and as we all know, for years gone by and a lot of 
decisions that have been made, we are in a world of hurt when 
it comes to the budget of this country. Do you have something 
that corresponds with this that says this plan will take this 
many years and, oh, by the way, here is what it will cost for 
our agency to implement this and here are resources that we 
hope to tap into?
    And if you do not, I want to give you the answer--if you do 
not, I would highly encourage you to do it because I do not 
care if it is in this committee or my Armed Services Committee 
or Veterans Committee, this is going to be my mantra. We are a 
trillion-plus in debt this year in deficit. Plans are great, 
but if you do not have the money or the resources to implement 
them, they sit on the shelf and we will be back at it again.
    So give me your thoughts then. And I think my time is up.
    Mr. Genachowski. With respect to resources at the FCC 
itself, this is an issue that comes up when I speak with our 
bureau chiefs about doing more faster. One of the challenges 
that they each have in doing their work are the resources at 
the FCC themselves. So it is obviously something that we pay 
very close attention to. We have a budgeting cycle at the FCC 
also with respect to Congress.
    With respect to external funding like the Universal Service 
Fund, that is in a different area, and of course, we take that 
seriously and we have issues there.
    But I think your point is very well taken, and I would like 
to follow up with you on it.
    Senator Begich. Absolutely. I look forward to it. Mr. 
Chairman, thank you very much, and thank you for your 
presentation today.
    The Chairman. Are you finished, Senator Begich?
    Senator Begich. Yes, only because my clock has run out. It 
is only because Mr. Udall moved a cup, so I have to look at it 
now. If I did not see it, I would keep going.
    The Chairman. Well, it is a pity.
    [Laughter.]
    The Chairman. Senator Pryor, to be followed by Senator 
McCaskill, Senator Brownback, Senator Thune, and Senator 
Klobuchar.

                 STATEMENT OF HON. MARK PRYOR, 
                   U.S. SENATOR FROM ARKANSAS

    Senator Pryor. Thank you, Mr. Chairman.
    Chairman Genachowski, good to have you before the Committee 
again. I also want to thank you for coming to Arkansas. It was 
a great trip and I appreciate you getting a sense of the lay of 
the land there.
    Let me start with the Universal Service Fund. I support the 
reform that you are talking about, but I am concerned about the 
impact it may have on our small companies that offer land line 
service because they really do depend on USF funding in order 
to provide the quality and the affordable service that they do.
    So can you walk me through very quickly how the FCC plans 
to ensure that the small local carriers still get what they 
need in order to provide service in rural areas but still that 
accomplishes the goals you are trying to play out?
    Mr. Genachowski. There was an extraordinary team that 
worked on these issues as part of the plan to find a way where 
broadband communications, high-speed data communications can be 
supported in rural Arkansas and other parts of the country to 
move from where we are now where USF is supporting yesterday's 
technology, to a world where it is supporting today's 
technology, but to do it with certainty but without flash cuts 
that would create more problems than it solves. It is obviously 
a challenge and the plan lays out, from beginning to end, 
starting right away, but over 10 years doing the conversion, 
and we believe that we can start making progress immediately, 
that it is important to lay out a clear calendar for companies, 
but finding a way to shift the program to the new 
communications services that people really need without having 
flash cuts that would disrupt existing reliances and 
dependencies on the program.
    Senator Pryor. Do you anticipate having to increase USF 
fees in order to do this?
    Mr. Genachowski. The goal of the plan is to not increase 
the rate of growth of the fund. That would have been the easy 
thing to do, to say, hey, we have this fund. Now let us add to 
it with broadband. And we did not think that was fiscally 
prudent. We also wanted to avoid flash cuts. So the design of 
the plan is to have the shift over a period of time without 
increasing the growth of the fund but also without cutting it 
back.
    Senator Pryor. And can you tell the Committee a little bit 
about the mobility fund, and how they are targeted, and how 
many States are considered below the national standard?
    Mr. Genachowski. Well, this gets to a point that the 
Chairman started with at the beginning. We want to make sure 
that we are focusing on next generation broadband 
communications but that we are not leaving behind basic local 
services. I have a 18-year-old. He is driving and I absolutely 
want him to have broadband access wherever he lives in the 
country. But if he gets into an accident, I want to make sure 
wherever he is, he can call 911 on his mobile phone or call me 
or call whatever he needs. So the plan sets out a path to 
tackle both of these challenges.
    Not easy, of course. Not easy in a time where fiscal 
restraint is so important. I think it will be an ongoing topic 
to talk about and work on together, but these are both very 
important goals that I personally feel very strongly about.
    Senator Pryor. This may be my last question because I may 
run out of time. But the old issue of inter-carrier 
compensation. I know that as you go through the reform process, 
and to me that is one of the things that has to be solid 
throughout the whole process, is inter-carrier compensation. 
You do not want the carriers who are providing the services all 
the way through the system like they are supposed to and not 
being compensated for it.
    So as you are going through this transition and all these 
changes, do you feel like the FCC has a plan and a commitment 
to keep the inter-carrier compensation flowing the way it 
should?
    Mr. Genachowski. I think we have a plan and a direction 
that recognizes the multiple interdependencies and the 
complexities. I cannot tell you that have already solved every 
complex, detailed problem that is in here. We will need help 
from all of the companies involved, all of the stakeholders. 
But we have a focused staff that understands this very well and 
that is very focused on the goals that are laid out in the 
broadband plan to achieve this, and that recognizes that we 
will need to rely on private companies in rural America to 
continue to deliver these services to people who are there.
    But we also are on a track--as you know with the Universal 
Service Fund, if we do not start to reform it, we face the 
danger that the thing itself collapses. So we want to get out 
ahead of that. And we have had very good conversations with 
local phone companies who are coming in with different ideas 
and approaches to work on a transition. I think they are at the 
point now, from what I see, that they acknowledge the 
importance of transitioning so that they can offer all of their 
customers modern broadband communications.
    Senator Pryor. Mr. Chairman, before I relinquish the 
microphone here, I do want to thank Chairman Genachowski and 
the rest of the Commissioners and all the FCC staff for the 
hundreds, maybe thousands of hours you have put into creating 
this document because I know it was not easy, very time-
consuming, a zillion different meetings and different details 
you worked through. But thank you for doing that.
    The Chairman. Thank you, Senator.
    Senator McCaskill?

              STATEMENT OF HON. CLAIRE McCASKILL, 
                   U.S. SENATOR FROM MISSOURI

    Senator McCaskill. Thank you, Mr. Chairman.
    I would like to talk about the spectrum. I see how my life 
has changed over the last 10 years as it relates to usage of 
broadband. And recently, very recently, my husband got an iPad 
for his birthday, and I have had my hands on it more than he 
has. I will tell you that I am confident that there will be 
massive changes in the way that we are entertained, and where 
we are entertained, and how we are entertained by products 
coming over broadband. I looked out a few minutes ago and 
almost every head was down because they were all typing. The 
entire audience is transcribing this hearing and sending it to 
whoever they work for or whoever at their company is 
interested.
    Clearly, this is finite. Now, if we have time, we can talk 
about where the 300 MHz of spectrum are going to come from, and 
how upset the TV stations are about the idea that some of it is 
going to come from them. But at the end of the rainbow, when it 
is all being used, and all of a sudden there is no more left, 
what happens? Do poor people get squeezed out and rich people, 
who can afford to do what my family does, be big, old hogs when 
it comes to bandwidth, much less the small businesses that have 
seven servers in their basement and are not paying any more 
than my mom who plays bridge and checks her e-mail once a 
month? What are you envisioning?
    While the plan is great, I do not see you getting to that 
ultimate pressure point. What do we do in this country when we 
run out of spectrum?
    Mr. Genachowski. Solving this challenge, which I agree is 
so important for our economy, for small businesses, for 
consumers, is vital. And I do not think there is any single 
solution. Recovering spectrum is necessary, but it is not 
sufficient. I think that is the point of your question. We need 
to encourage and incentivize new technologies that process 
information over spectrum more efficiently. We need to find 
ways to do that near-term, and also look at our longer-term R&D 
spend and think about whether there is enough spending going 
into that long-term to solve because it is such an important 
challenge for our country.
    We have to look at all of our spectrum policies to make 
sure that they are promoting the most efficient use of 
spectrum, promoting secondary markets, and we have to make sure 
that we have a climate and a set of policies that are promoting 
business models and that have the right incentives so that a 
combination of smart policies in the market and technologies 
can solve this. If we solve it, we can lead the world in mobile 
and have it be an extraordinary engine for job creation, 
innovation for the United States for many years to come. If we 
do not solve it, we will be looking back in a number of years 
and saying why did those other countries jump ahead of us. 
Right now we know that we can have the best mobile innovation 
world happen here in the United States. I believe we have to 
tackle these problems so that is true in 5 years and 10 years 
as well.
    Senator McCaskill. I see the end coming, and I hope the 
technology is developed that allows us to get more out of the 
spectrum we have instead of having to crowd people out of it. 
This was touched on a little bit before. But I am fearful, and 
I think it is something that the FCC really needs to focus on 
as you look toward the future of our economy in this country 
and your role in it, more importantly, the role of the private 
sector in developing the technology that would do that.
    Let me quickly, because I do not have much time left--I 
know that you are talking about a voluntary giving-up of the 
spectrum. I may have questions in writing on that as it relates 
to the subject of grabbing more spectrum.
    But adoption, low-income adoption. Ninety-five percent of 
the households in America have access to broadband, but only 45 
percent of low-income households have it. So there are some 
things in here. Could you briefly talk about what you see as 
the best things in here that are going to help us with--because 
that really in so many ways is a key for economic strength and 
economic advancement by many, many people in this country is 
that ability to cross that great digital divide to the world of 
the Internet in these low-income households. Could you speak to 
that briefly?
    Mr. Genachowski. Yes, a very, very important topic. Our 
work showed that there were different reasons for the adoption 
gap. In some cases, it is affordability and in some cases it is 
relevance and digital literacy. So a plan that responds to the 
actual causes needs to tackle all of the above.
    Reforming the Universal Service Fund would involve 
reforming a lifeline program which tackles affordability. 
Competition policies will help with affordability by 
incentivizing lower prices. There are a series of other 
recommendations in the plan that go to relevancy and digital 
literacy, a digital literacy core, thinking in a very smart way 
about Government services, accelerating E-Rate. A very high 
percentage of the community that are non-adopters are involved 
with some Government programs. And so the faster that we move 
to electronic Government services, we not only save money for 
the Government, but we actually can make a real dent in 
adoption.
    So I would be happy to follow up with you on this. There 
are a lot of great ideas on the plan, and we need to pursue all 
of them to take us from 65 percent to our goal of 90 percent in 
10 years.
    Senator McCaskill. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator McCaskill.
    And now Senator Brownback who is not here. Senator Thune is 
not here. Senator Klobuchar is.

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Thank you very much.
    Hello, Chairman. Good to see you again. I, first of all, 
want to thank you for your plan, all the work that you are 
doing. I think it is incredibly important. Like everyone else 
who mentioned the court case and their concerns about it, I am 
also very concerned, but I wanted to focus more on some of the 
contents of the plan. We have got to find a way to get it done, 
as far as I am concerned.
    The things that I was very interested in, are that you 
included a recommendation that consumers receive more pricing 
and performance information from their broadband provider. I 
have authored a bill on this with Senator Begich, the idea of 
digging once when counties or cities or States are tearing up a 
roadway, that you then put the conduit in. And that is 
something I have done with Senator Warner. So we appreciate 
that. And then finally the development of the next generation 
of 911. I Co-Chair the 911 Caucus with Senator Burr. So I think 
those are very good things.
    My first focus actually is on cybersecurity and just what 
parts of the plan do you think could be imperiled by this court 
case, and what are the plans for the FCC's role with the 
cybersecurity? I just see it as the elephant in the room. We 
questioned Attorney General Holder this morning. That was my 
focus and how we can better ensure the security of the 
Internet, whether it is identity theft or anything else that 
may go on and how does this court decision impede you from 
proceeding with that.
    Mr. Genachowski. Well, I think to your question, we need 
to, and I believe we will find a way to make sure that we have 
the authority we need so that steps that are appropriate for 
the FCC to take with respect to----
    Senator Klobuchar. And what kind of steps are you looking 
at?
    Mr. Genachowski. Some of them go to best practices for 
networks. Some of them go to issues with respect to outages. 
For many agencies, including ours, there is a focus every day 
on developing the best set of strategies and tactics to deal 
with the fast-moving problem. Admiral Jamie Barnett who is 
heading our Public Safety and Homeland Security Bureau, is very 
focused on this, and making sure that we both identify the 
steps to take and that we have the authority to pursue them is 
essential.
    Senator Klobuchar. Right. Senator Thune and I have a bill 
on peer-to-peer. I could not believe the stories I heard out of 
Minnesota on this. You know, one employee of a company does 
some work at home one day, does not know that her kid loaded a 
P2P program on there, and all of the company's--this is a 
medium-sized company--all of their employee records go out onto 
the Internet and are taken by someone, and a bunch of them 
become victims of identity theft. It is unbelievable. I hope 
you will be looking into that as we go forward.
    I thought I would talk a little bit about the focus on 
promoting competition by having transparency and the 
information available, as I mentioned before, so that consumers 
know how fast their Internet is, what the price is. Could you 
talk about the importance of that for developing this 
competitive marketplace?
    Mr. Genachowski. Sure. One of the findings of the work we 
did in the broadband plan was that the speeds that consumers 
actually get are much lower than the advertised speeds.
    Senator Klobuchar. Really.
    Mr. Genachowski. And that there is a lot of consumer 
confusion.
    One of the things that makes me optimistic about this area 
is that new technologies provide new ways to get information to 
consumers in better, more efficient ways so that they can make 
the market work.
    Senator Klobuchar. Consumers would probably want to know 
not just what their speed is in a vacuum--that means nothing--
but what the average is, what speeds are that help you to get 
certain things. Is that what----
    Mr. Genachowski. Yes, and we have already taken steps at 
the FCC in terms of applications that we have released that 
allow people to measure the speeds that they do have. It is, of 
course, just the beginning, but ultimately it should be easy 
for a consumer to be able to know their speed, other people's 
speeds, various competitors' speeds so that the market can work 
as effectively as possible.
    Senator Klobuchar. Could you comment--and I know I have 
asked you this before--about the ``Dig Once,'' bill and what 
you have seen in other parts of the country, if you think this 
is workable?
    Mr. Genachowski. Listen, we were happy to include that idea 
in the plan. There are a number of areas where there are some 
obvious steps that can be taken that will lower the costs of 
investment, and increase the speed and the deployment of wired 
and wireless broadband. This is one. So it is an important part 
of the plan, and I am glad you mentioned it.
    Senator Klobuchar. For the 911 piece of this, what steps is 
the FCC taking to move forward with an IP-based 911 system? 
Obviously, this is the idea that people who are calling 911 now 
are not just using a land line. In fact, they are not just 
using a cell phone. Most of our 911 call centers have adapted 
to that. There are still some issues. But they will be only 
texting, and so they are going to be stuck on a snowmobile in 
the middle of Minnesota or Nebraska, and lost or they break 
their leg, and they can only text it. We are not quite ready 
for that new world.
    Mr. Genachowski. No. There are many challenges, but I think 
the goal to your point as well, is very clear. Consumers need 
to be able to contact 911 with whatever communications service 
they are using. There are a series of steps that we are going 
to take, I think starting very soon, to make sure that we can 
move 911 to a place that whatever service you are on, you have 
the ability to contact a first responder.
    Senator Klobuchar. And the other piece of this is it really 
could be helpful for, say, downloading a building before the 
fire fighters--the blueprints where a fire fighter walked in, 
just the potential of safety. If you can get pictures from a 
scene and then send it back to first responders, whether they 
are cops or fire fighters. I think all this is going to happen, 
but we are going to have to figure out how to do it the right 
way with the Internet.
    Mr. Genachowski. It is critical that we do it and it is 
critical that we have the ability to do and move quickly 
because we cannot afford to wait.
    Senator Klobuchar. Well, thank you. I had some additional 
questions, some concern from some of our local broadcasters. So 
I will put those in writing for you. Thank you.
    The Chairman. Thank you, Senator.
    Senator Snowe?

              STATEMENT OF HON. OLYMPIA J. SNOWE, 
                    U.S. SENATOR FROM MAINE

    Senator Snowe. Thank you. Thank you, Mr. Chairman.
    And thank you, Chairman Genachowski for being here today 
discussing an array of critical issues with respect to 
broadband and how we are going to deploy broadband in the 
future. I commend you for the work that you have engaged in.
    On the question of net neutrality, because we have heard so 
much discussed here today on both sides of the equation--and as 
you know, I have been a strong proponent of net neutrality 
legislation. In fact, Senator Dorgan and I have been working on 
redrafting our legislation from the previous Congress because 
we do think it is important.
    And I think it is so often overlooked about the fact that 
nondiscrimination requirements have existed in our 
telecommunications statutes for more than 70 years, a 
requirement to ensure against unjust anticompetitive practices, 
unreasonable discrimination. And that is what it is all about. 
In fact, I would say that innovation has really been compatible 
with those nondiscrimination principles since the FCC took 
actions in 2005. Up until the time of the court case, frankly, 
they co-existed. It did flourish. But the point is, we have to 
make sure that we have the same freedom and openness to ensure 
that all users of the Internet have similar capabilities.
    So that is not surprising then that there is an array of 
groups that support net neutrality: Consumers Union, Christian 
Coalition, Gun Owners of America, moveon.org, Teamsters, 
Parents Television Council, American Library Association, 
across the philosophical spectrum because of the concern that 
if you do not have those type of protections, that you do not 
have the ability to prohibit anticompetitive practices by large 
carriers, for example, then you are going to deny the average 
person or the small business access to the Internet as we know 
it today.
    It is not changing it. It is what we have had, what we have 
had historically.
    I would like to hear from you. What are the ramifications 
if we do not incorporate these nondiscrimination principles?
    Frankly, I think we are looking at one side--well, we do 
not want to regulate the Internet. Well, it is not about it. We 
are trying to keep it as it is. That's the interesting part 
about it. And I think there is even a growing consensus within 
the industry and with stakeholders on this very question. Even 
those major carriers that have opposed net neutrality 
legislation or approaches in the past and protections are now 
coming around very differently.
    So I would like to have your views taking it from a 
different perspective, and that is, what would be the 
ramifications without such protections?
    Mr. Genachowski. I think the ramifications could be that 
our world leadership in innovation and entrepreneurship goes 
away. It is the freedom and openness of the Internet that has 
created all these incredible success stories over the last 10 
years, tiny companies started in the garage that now employ 
hundreds, thousands of people that create economic activity 
that are some of our major exports to other countries.
    My concern is that if we do not preserve the freedom and 
openness of the Internet that we have had, that other countries 
will move forward and take our mantel as world leaders in 
innovation and entrepreneurship. And that is what I am 
concerned about. And I think to your point, preserving what we 
have had is all we need to do.
    Senator Snowe. That is exactly right. This is really 
maintaining the status quo in all of this and how best to do 
it, understanding that technology has evolved in very recent 
years--witness voice and video and we have to accommodate that 
as well.
    The court did not say that you did not have the authority. 
It was that the authority was not tied to any specific 
statutory provision. Is that correct?
    Mr. Genachowski. Correct.
    Senator Snowe. So that is what the lawyers are reexamining 
now, as to what authority you might have under the statutes.
    Mr. Genachowski. That is correct.
    Senator Snowe. You also have an open proceeding with 
respect to all of this as well. So obviously, you think you do 
have some options under statute.
    Mr. Genachowski. Correct. We opened the proceeding because 
we wanted to make sure that there was as much clarity and 
certainty as possible in this area to maximize the amount of 
innovation and entrepreneurship and consumer protection that we 
could have. So that proceeding is open. We will be getting 
comments in--we extended it because of the decision--in 2 or 3 
weeks. I do not remember exactly. But I do hope that can become 
a vehicle for getting to the point that you mentioned.
    I agree with you that in the last few months, since we 
started an open, inclusive, participatory proceeding, we have 
seen the area of consensus grow in terms of what the FCC should 
do in the area of disagreement narrow. And I think that is a 
very healthy thing. I am committed to continuing to work in 
that direction so that we can preserve the free and open 
Internet that has been such a boon for our country.
    Senator Snowe. Well, I hope that we also can get to the 
legislative front, but in the meantime, I think it is going to 
be important for you to be doing the work that you are doing. 
And hopefully, that can work and we can build that kind of 
consensus in reaching that accommodation.
    Does the court decision deny you beyond in the broadband 
plan overall, other areas in which to extend broadband, for 
example, I mean, in emerging technologies or where is it that 
it is going to inhibit your ability to implement the broadband 
plan?
    Mr. Genachowski. It potentially raises questions in a 
number of areas, including Universal Service to rural America, 
including small businesses, including consumers, including 
public safety and cybersecurity.
    That is why I think it is so important that we make sure 
that everything we do has a solid legal foundation. The 
Communications Act, I believe, requires the FCC to adopt 
policies that protect consumers, promote investment and 
innovation in communications networks, whether they are 
traditional networks or newer data networks. From a consumer's 
perspective, they assume that the FCC is making sure that 
consumers are protected, that competition is promoted, that 
innovation and investment are promoted, and I believe it will 
be completely consistent with the Communications Act for us to 
continue to do what the FCC on a bipartisan basis has been 
doing for quite some time.
    Senator Snowe. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    Senator Nelson?

                STATEMENT OF HON. BILL NELSON, 
                   U.S. SENATOR FROM FLORIDA

    Senator Nelson. Thank you, Mr. Chairman. I would ask that 
my statement be entered in the record as an opening statement.
    The Chairman. Would I have a chance to read it first before 
I rule on that?
    [Laughter.]
    Senator Nelson. That is up to you.
    The Chairman. So ordered.
    [The prepared statement of Senator Nelson follows:]

   Prepared Statement of Hon. Bill Nelson, U.S. Senator from Florida

    I am pleased to hear from Chairman Genachowski today to outline the 
National Broadband Plan. This plan is an important piece of the 
American Reinvestment and Recovery Act, which was designed to create 
new jobs, spur economic activity and make important investments in our 
Nation's long-term growth. The National Broadband Policy piece seeks to 
develop policies to ensure that all Americans have access to 
affordable, world-class broadband. I was pleased to support the Act.
    I commend the Chairman, Commissioners, and the FCC staff for 
putting together this comprehensive 377-page plan with ``Internet 
speed'' and for developing a plan to go forward with implementation 
with Internet speed.
    I know this report is only the beginning of the process. Some of 
these plans will be the subject of dozens of rulemakings back at the 
FCC and legislation here in the Congress. I will be watching carefully 
as these plans are developed to make sure that the goals of the 
National Broadband Plan are realized without delay.
    In my home State of Florida, extending broadband pipes to citizens 
is no longer a luxury, it is a necessity.

   You need broadband to find and apply for jobs.

   Classroom instruction at all levels--from elementary school 
        to graduate school--takes place over broadband lines.

   Families on military bases need high speed Internet 
        connections to communicate with deployed military service 
        members overseas.

   Medical records and health histories are being digitized so 
        that our doctors and health professionals can have our complete 
        medical history at their finger tips to provide us care.

   Small businesses, the main drivers of employment and 
        commerce in my state, need affordable broadband access to stay 
        competitive with larger companies in the United States and 
        abroad.

    All of these things are enabled by broadband and are necessary to 
get folks back on their feet and to help regain our leadership in the 
world.
    Of the many recommendations in the plan, I am eager to hear more 
about the plan to free up chunks of airwaves for wireless broadband 
devices like smart phones and mobile computers. This is, without 
question, an important goal.
    Although I am encouraged that the recommendations on the airwaves 
are described as ``voluntary,'' the devil is in the details. And the 
details are in the implementation. We need to tread carefully here 
given that the future of free-over-the-air TV depends on how we deal 
with this issue.
    At a time when the investment in news gathering and reporting is 
declining, we need to ``first do no further harm'' to the diversity of 
independent media voices. This diversity is critical to our democracy 
and should not be sacrificed for any reason.

    Senator Nelson. Thank you, Mr. Chairman.
    Mr. Genachowski, your plan has recommendations to provide 
the ultra-high speed Internet to some select military 
installations. Of course, we have quite a bit of military in 
the State of Florida. So share with us what makes large 
military installations an ideal test bed for the ultra-high 
speed Internet connection.
    Mr. Genachowski. One of the things that I saw at our Air 
Force base in Qatar when I was over there was how forward-
looking the military is in understanding that broadband 
communications can serve multiple objectives, keep our troops 
with their families, whether they are at a base in the U.S. or 
abroad, further distance learning, making sure that troops can 
complete their degrees, advance in the military, further health 
care-related objectives. When I was in Arkansas--Senator Pryor 
is not here, but I met someone from the military who said when 
he went overseas, he had to take his paper medical records with 
him. So including the military as part of our test bed effort, 
as thinking about the ways that we can identify rolling out 
broadband, sharing the benefits, sharing learning, was a very 
important part of us. And our friends in the Pentagon was very 
cooperative in finding a way that they could participate in 
making sure that all Americans can benefit from broadband.
    Senator Nelson. And if we can ever get it sufficiently 
secure, we could also have our military, even in the field, be 
able to vote while they are overseas on assignment. We have 
been raising that issue because when you find out exactly how 
many military ballots are actually absentee ballots that are 
counted, you will find it is a pitifully poor percentage of the 
registered voters. Something for your consideration.
    Small business. What initiatives do you have to move 
forward with immediately boosting the small business segment 
that can stimulate investment, innovation, and job creation?
    Mr. Genachowski. We found that in small business, one, the 
opportunity is huge for small businesses to get on the 
Internet, expand their markets, grow their businesses, reduce 
their costs by using services that are in the cloud with a real 
result of greater revenue, lower costs, more profits, and more 
jobs.
    We found that there are two obstacles, essentially, to 
small businesses in broadband. One involves literacy, 
understanding what is out there, and the other involves 
affordability.
    On the literacy/understanding piece, we have already 
announced--Chairman, I forgot to mention this before--a program 
with the Small Business Administration to immediately start 
providing better information to small businesses about the 
opportunities, how to get on broadband. Administrator Mills has 
been a great partner in this.
    With respect to affordability, there are a series of 
competition issues that we need to address. We have heard many 
complaints from small businesses that they do not feel their 
choices are adequate, they feel their prices are too high. So 
that is an area that we are moving forward on at the 
Commission. It is complex but it is important that small 
businesses understand the opportunity of broadband and that 
they have real choice.
    Senator Nelson. Now, in your recommendations to reallocate 
the spectrum from various uses, including TV broadcasting, to 
commercial wireless uses like smart phones and high-speed 
wireless Internet, the question is are you going to treat 
public TV broadcasters like you would the commercial TV 
broadcasters?
    Mr. Genachowski. Well, the plan that we have suggested is a 
voluntary one where it is focused on commercial broadcasters 
that increases their options to share spectrum with another 
station in the market, participate in an auction, and get 
benefits. Public media has been extraordinarily important in 
the country, I think even more so as the commercial sector has 
had to deal with the awful economy and that has had certain 
consequences on programming. So public media becomes incredibly 
important, both with respect to traditional television--many 
Americans still just receive over-the-air TV--but also making 
sure the public media can reach the next generation of 
audiences where they are on the Internet, on mobile phones. We 
found the public television and radio community to be very 
interested in a partnership on the best, most effective way 
that they can serve their audience and their important mission 
in the 21st century.
    Senator Nelson. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Nelson.
    Senator Cantwell?

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman.
    And Chairman Genachowski, it is good to see you. I know 
that the FCC is holding a workshop on its notice of proposed 
rulemaking on net neutrality in Seattle coming up here later 
this month. So, I know you are going to hear a lot about what 
we think about in the Northwest as how fundamental it is to the 
future of broadband in the United States to make sure there is 
an open Internet. So we appreciate you holding that field 
hearing.
    And I always am amazed when I see these reports since the 
decision. You know, 53 percent of the public does not want the 
FCC to regulate the Internet when the issue is the public wants 
the FCC to protect them to make sure that the Internet is not 
artificially taxed by business, preventing consumers access to 
content without paying more for it. And the notion that 
somebody thinks they can spin this around Washington, I 
guarantee you, you will hear an earful when you get to Seattle. 
They understand that access to content through the Internet 
should not be artificially taxed.
    One of the things I am curious about is since we had our 
hearing here about the Comcast-NBC merger, we have now had this 
D.C. decision. So the potential combination of Comcast and 
NBC--how will that impact your--I know you cannot speak 
specifically. I am asking you to speak broadly about the 
Commission in evaluating that deal. In the MCI-Verizon, you 
were able to condition, post-merger, certain conditions be met 
protecting the consumer using that net neutrality. So how will 
you look at making sure that content is not blocked, you know, 
things that will be very important for that decision?
    Mr. Genachowski. As you indicate, I cannot talk 
specifically about the transaction, but I take your views and I 
will make sure that they are incorporated in the Commission's 
consideration of the transaction.
    Senator Cantwell. Do you have a concern generally that that 
is harder now since the court decision?
    Mr. Genachowski. I am not sure that it is harder. I think 
that there are many issues, very serious issues, in the 
transaction that we will be taking one by one very seriously 
and looking at them on their own terms. I am sure that these 
issues will be considered very seriously as part of that. We 
have already heard from people on that issue in the 
transaction. I am sure we will hear from more. It will be taken 
very seriously as part of the review of that transaction.
    Senator Cantwell. I know also in another decision with the 
Third Circuit's removing the stay on media ownership that came 
out under Chairman Martin, that there is now an opportunity for 
the Commission to start moving on that process. And so I know 
you have a quadrennial review of media ownership. So to me, it 
is very important that the Commission start moving on this and 
make sure that you consider this in a comprehensive way. Is 
that part of the plan?
    Mr. Genachowski. Yes. We started the process of the review, 
the 2010 review, in 2009. There will be a Commission action in 
the near future to go to the next stage, and we will be 
tackling the ownership issues.
    Senator Cantwell. Thank you.
    And on the issue of the broadband plan, we are 8-plus years 
after 9/11 and yet the notion of interoperability communication 
systems for first responders is still more of a goal than a 
reality. In your broadband plan, you have some objectives to 
meet certain petitions no later than the third quarter of this 
year. We are very interested in the Northwest, Seattle. 
Particularly in Pierce County and in Seattle, you might have 
seen this rash of police killings in the news. So the law 
enforcement community is very interested in basically getting 
these public safety spectrum trusts to be able to access for 
building an interoperable public network.
    Mr. Genachowski. It is a vitally important issue, and it is 
a real action plan to move forward quickly and make sure we get 
a public safety network built. It does require, we suggest, 
some actions by Congress because this is an area where we do 
not think the private sector will get the public safety network 
built. But we have a series of steps to take in connection with 
that to make sure that networks are hardened, interoperable.
    And we have a unique opportunity now that I am very hopeful 
that we can take advantage of. As we are building out our 4G 
networks, if we can build out the public safety network at the 
same time, we will reduce the costs of that dramatically. If we 
do not move forward with the public safety network now and all 
the 4G network truck rolls and equipment are already out and 
then we try to accomplish exactly the same thing later, the 
costs will be much, much higher. So I agree with you that it is 
essential to move forward and to move forward on a very fast 
timetable, and I look forward to working together on that.
    Senator Cantwell. The plan calls for that by the third 
quarter of this year. So do you think you will make that?
    Mr. Genachowski. We will make our part. We do not have the 
funding available for the funding part, but we will do 
everything that we need to do on our schedule.
    Senator Cantwell. Thank you.
    And I would just like to echo my colleagues' calls about 
unlicensed spectrum as it relates to the development moving 
forward of Wi-Fi. I know that you guys are looking at 20 
megahertz, but there is a lot bigger need for this. So I will 
look forward to asking you more about that.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Cantwell.
    We will go to a second round now. Do you have time?
    Mr. Genachowski. Of course.
    The Chairman. I was just saying to Senator Hutchison before 
she left, I do not know how many times I have talked here, not 
just in this position but in the 24 years that I have been on 
this committee, about ruralness, and I always somehow work the 
name ``West Virginia'' in there. It strikes me that I am not 
doing rural America a favor when I do that.
    You talk about a looming spectrum crisis, and then you come 
up with the statement that the Nation needs 500 megahertz of 
new spectrum in the next 10 years.
    But I have this worry, which goes along with what I said at 
the beginning, about you set out a large picture, but then 
there is sort of nothing taking after this 911 thing. Like 
Senator Cantwell, I am so shocked. I am so embarrassed. I mean, 
you got the blessings of the 9/11 Commission, but I am fairly 
sure they could not have read anything about interoperable 
first responders because really nothing has happened. There 
have been bits that have happened, of course, but nothing 
fundamental has happened in the most obvious homeland security, 
national safety type issue imaginable.
    Now, I go back to mine disaster that we had. People could 
not call. It was really embarrassing, Mr. Chairman, to see 
Verizon technicians who had been, obviously, up for 5 days 
trying to string wires for land lines out to a place that they 
rarely had ever been to before, if ever. Maybe to the 
elementary school where the press was. But they were out there 
like crazy. It was almost comical trying to string up wires so 
that rural America could be heard in a genuine matter of life 
and death, which turned out to be all death.
    Now, I am not satisfied that you really are taking into 
consideration rural America. I think you are saying it. I think 
you are postulating it out there, but you specifically define 
when you are talking about rural America--you say that the 
looming spectrum crisis--when you are talking about that, it is 
strictly an urban problem. You refer to it as an urban problem. 
And that is all of a sudden when I become more than a West 
Virginian because the Adirondacks, the intersections of 
California, endless, hundreds of thousands of square miles of 
New Mexico, Colorado, North Dakota, the State of Washington--I 
mean, every State has enormous rural chunks.
    The pattern of the telecommunications industry has been so 
clearly and so blatantly, and so obviously two-fold. One, we 
pledge to cover all your people. How many times I have heard 
that from the different people who have been doing 
telecommunications for the greater part of West Virginia, and 
they always go right to the cities, right to the businesses who 
will pay their bills on time, and right to the sections where 
the houses have the income level so they do not have to worry 
about it. But do not try and look for them in rural West 
Virginia or in rural Montana or in rural North Dakota. They are 
just not there and they are not going there.
    So when people say--you know, I got sick of this talk. This 
is meant to be about real people getting service. And we got 
into the discussion about light touch versus heavy touch and 
process and Title I and Title II, and all of that is important 
when it comes down to it. But the real problem is getting that 
service to people who need it, and every single State has rural 
people. And I want to know what your plans are for that.
    Mr. Genachowski. Well, Mr. Chairman, I could not agree more 
with what you are saying. If I could make a couple of points.
    One is the problems in rural America with respect to 
deployment are very serious problems that the plan takes 
seriously, and it proposes the first-ever mobility fund.
    The Chairman. I knew you were going to say that. Go ahead.
    Mr. Genachowski. Well, it is an important step to directly 
tackle the challenges in rural America.
    The Chairman. When will it be in place?
    Mr. Genachowski. As soon as possible and we will lay out a 
timetable for you.
    The Chairman. When?
    Mr. Genachowski. There is a timetable and I apologize. We 
will get you a timetable to move it forward.
    The Chairman. Do you have an idea? It is a lot of America.
    Mr. Genachowski. As quickly as we possibly can.
    The Chairman. Do you feel the pressure, though?
    Mr. Genachowski. I certainly do.
    The Chairman. Not of me but of rural America, of 
underserved, unserved people speaking, needing you. And if you 
need us to help you get the authority that you need, use us.
    I mean, I do not want to get into this thing, but Chairman 
Powell made your life a whole lot more difficult, a whole lot 
more difficult. So let us just face facts. If you are going to 
need help to be able to do more, you come to us. And it may be 
a close vote. It may be a partisan vote. I have no idea. But it 
is a battle worth fighting. Getting you out to where you can do 
what you want to do quickly--quickly--that is the President's 
main problem and it is also yours. Everybody expects him to be 
able to get everything done in the first year and a half: peace 
in the world, prosperity in America, and all the rest.
    You have got some of that problem too, and you asked for it 
because you are smart, you are aggressive, you tend, I think, 
to surround yourself sometimes with a rather small group of 
people. I do not know who you listen to from the outside. I do 
not know what your process for setting priorities is and making 
sure that they are done. The work plan that Senator Begich was 
talking about really is the only way that you get anything 
done. It is not talking about a problem. It is doing something 
about it.
    And I want my people to be able to be treated in exactly 
the same way as those of my family who live in New York City. 
And I am not going to settle for anything less, and I am going 
to give you hard time until that happens.
    Mr. Genachowski. I completely agree, sir.
    The Chairman. Thank you.
    Senator Dorgan?
    Senator Dorgan. Senator Rockefeller, thank you.
    The Chairman. Oh, there is a vote. Is it an important vote, 
do you happen to know?
    [Laughter.]
    Senator Dorgan. I do not know what the vote is, actually.
    The Chairman. We have got 15 minutes. Go ahead.
    Senator Dorgan. Well, first of all, Chairman Genachowski, 
thank you for, again, your work and for being here.
    The implicit suggestion by some was why do you not get out 
of the way and let the free market work. It is a wonder, and 
let us let the full flower of that wonder of the free market 
work. I love the free market. I think it is the best allocator 
of goods and services that I have ever seen, but it needs a 
referee and you are a regulator. You are a referee.
    When I say I am not for the light touch, let me be quick to 
say I do not want over-regulation, but I want you to use the 
right touch to make sure that the referee is doing what the 
referee must do to keep the free market free.
    So with that, I want to send you some questions about the 
Internet and broadband and American Indians and the Indian 
reservations and the very significant problems of serving 
there. They are way behind.
    I want to send you some questions about Universal Service 
reform, including inter-carrier compensation, which is very 
important. It is very important that that reform move carefully 
and thoughtfully.
    I am also going to send you some questions about the 100-
megabit 2020, which I think is called 100 Squared. And then 
your plan calls for Universal Service speeds at 4 megabits. So 
my question will be, as I send you some questions, what part of 
America will be served with 100 megabits and what will get 4 
megabits, and is that not, in fact, a very substantial digital 
divide? And what are the consequences of that for economic 
opportunities in a region?
    But what I want to do is I want to tell you just a very 
short story. I grew up in a town of 250-300 people in a small 
house with two bedrooms and a shed out in front. And I had not 
been back to that house since I was a teenager. Some while ago 
I went back to the house, knocked on the door, and the woman 
who answered in this little town of a couple hundred people--I 
asked her would you mind if I see this home. It was where I 
grew up. And she said, I would be happy to have you come in.
    I came in and as I entered the shed, I saw a bunch of 
cardboard and tape. And as I walked into the kitchen from the 
shed, I saw a camera on the kitchen counter and a little 
stanchion there with a bracelet hanging on an appendage. And I 
said, what are you doing? She said, well, I am taking a 
photograph of this bracelet. It was kind of a pretty gold 
bracelet. And I said, why are you doing that? She said, well, I 
sell on the Internet. I said, really. Yes. She said, I sell on 
the Internet. I sell jewelry on the Internet that I buy from 
others and then resell on the Internet. And I said, is that 
what the cardboard boxes and the tape are for? She said, sure.
    So here in my home, a very small, home in a small town is a 
woman that reaches the world. She is on the Internet and 
someone from Moscow or Delhi can access what she is selling. I 
said, how are you doing? She said, fine. I supplement my 
husband that drives the gas truck for the Farmers Union Oil 
Company and I make a decent income selling on the Internet. It 
could not have been possible previously. It never would have 
happened. She has an international business capability from 
that little town.
    But she has that capability because no one has the 
opportunity to say you are too small or we are going to impose 
a fee on you. We are going to impose some impediment that does 
not allow others to see you unless you comply with these three 
requirements. Pay us in order to get on our provider network. 
No one can do that at this point, or at least I should say no 
one could do that originally under the rules of the Internet 
because it was under Title II and included the rules of 
nondiscrimination.
    That is why this is such an important issue, and it is why 
I come back to it again. I think the genius of the Internet--it 
is the ultimate democratic tool for everybody in the world to 
reach everyone else in the world without any interference. And 
when someone of significant clout said I do not want this user 
or that user using my pipes, that tells me, wait a second. We 
are talking toll booths and gatekeepers and others that might 
want to find ways to get revenue off a determination of who can 
be on the Internet. So that is why this is so important.
    I think the firms that are involved in doing innovation, 
the big firms and small firms--God bless them. I support them. 
I am not anti-big or anything of the sort. I want this to 
remain free and open. And I worry. Go back to the financial 
issue for the last decade or so--in fact, go back a decade and 
a half and see what happened under blind regulators. We need 
effective regulation, not to retard the innovation of the 
Internet, but to make certain that it remains free and open and 
to make certain it protects the free market.
    So I just wanted to tell you that story about my little 
hometown because that is replicated all over America, and that 
is the genius of people saying, you know what? I can start a 
business too right here in my kitchen. That is such a wonderful 
story.
    So let me ask you finally--my time is expiring. It is the 
case, to reaffirm, that the origin of the Internet, the 
construction of it and the growth of the Internet occurred 
under a series of principles which included nondiscrimination. 
Is that not the case?
    Mr. Genachowski. I believe that is correct.
    Senator Dorgan. The Chairman indicated that the FCC under a 
different Chairman decided we are going to change the rules and 
redescribe Internet service as something other than telephone 
service under Title II, which is the way it had been regulated. 
So that was no service to you and, in my judgment, the American 
people. I opposed it at the time. But we need to find a way, in 
my judgment, to restore that which always existed and has 
always existed with respect to telephone service and previously 
existed with respect to Internet service. I think it is the 
right way to protect the American people, at the same time to 
allow the Internet to flourish and grow and for the free 
enterprise system to work the way it is meant to work.
    So, Mr. Chairman, thank you for your work and thanks for 
spending as much time as you have with us today.
    Mr. Genachowski. Thank you, Senator.
    The Chairman. Thank you, Senator.
    Senator Johanns and Senator Cantwell, just two really good 
20-second questions.
    Senator Johanns. There is not enough time to ask a 
question, but I would like to sit down with you more 
extensively.
    This is not a question of whether these things are good or 
not good. Much of what Senator Dorgan says, many of us, myself 
included, could agree with, but the point is this is where we 
debate policy. You are not elected. No one voted for you. And 
it is very, very important that Federal Departments exercise 
the authority granted to them. Comcast has said very, very 
clearly you exceeded your authority. There just is not any way 
around that opinion.
    The second piece of this, to go back to Title II with the 
history you have here based upon factual determinations and 
then try change the world I think will only buy greater 
litigation, more lawyers, and you will be stopped in the end 
also.
    The point, Mr. Chairman, that I want to make, as I wrap up 
here today, is that there is a way to do this in the American 
system, and you are a bright guy and I have so much admiration 
for your background and your skills. I cannot think of anybody, 
as said during your confirmation hearing, better qualified to 
do what you are doing than you.
    But it is here that this policy is argued out and fleshed 
out. The words exist in the English language to give you the 
power to do net neutrality and manage in that way if we choose 
to give that to you. Comcast said you did not have that power. 
And under the Title II rulings by the FCC itself and under the 
Supreme Court decision relative to one of those rulings, I 
think the decision has already been made that broadband is an 
information service. It is not a telecommunications service. 
And I think to change that now will invite, again, a court to 
step in and stop you.
    I look forward to sitting down with you and having this 
great discussion.
    Mr. Genachowski. I look forward to it.
    Senator Johanns. Thank you for your patience today.
    The Chairman. Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman.
    Two quick questions. Chairman Genachowski, will you decide 
on all open white space issues, you know, the reconsideration 
of the database order for the 700 megahertz no later than the 
third quarter of this year?
    Mr. Genachowski. I believe that is right, yes.
    Senator Cantwell. OK, thank you.
    And I know in the recommendations in the education 
recommendations, there was some discussion in there about 
different technology choices. Do you believe in neutrality in 
technology?
    Mr. Genachowski. Technological neutrality?
    Senator Cantwell. Yes.
    Mr. Genachowski. Yes.
    Senator Cantwell. I think it is very important. There are 
some models, and having neutrality I think is very important.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Thank you, Mr. Chairman.
    This hearing is adjourned.
    [Whereupon, at 4:37 p.m., the hearing was adjourned.]


                            A P P E N D I X

               Prepared Statement of Hon. John F. Kerry, 
                    U.S. Senator from Massachusetts

    Mr. Chairman, thank you.
    Chairman Genachowski, I support the National Broadband Plan and 
consider it a national priority to get robust, open, and affordable 
broadband to every home. That infrastructure could serve as a platform 
for innovation, jobs, growth, and a more participatory democracy. But 
it will not reach its potential if we continue to follow the previous 
Administration's philosophy that because broadband service is carried 
over the wires owned by telephone and cable we should do nothing. Under 
that philosophy, we fell behind the rest of the world in broadband. And 
our falling behind was not due to a lack of consensus on the goal that 
we should have the strongest broadband platform in the world. It was 
due to a failure of policy.
    In 2004, both President Bush and I called for affordable universal 
broadband service by 2006, and I said it needed to be 100 times as fast 
as it was then. The reasons we have not reached those goals are 
outlined in the National Broadband Plan: broadband service is highly 
concentrated in the hands of one or two providers in most markets, 
wireless broadband is not robust enough to competitively drive 
improvements in wired broadband service, consumers lack the information 
they need to make well informed decisions, and we have not yet 
modernized our Universal Service Fund to ensure rural America is 
broadband connected.
    To our industry friends who are rightly proud of the growth in 
broadband to date, I say that yes, it is true that we have seen an 
Internet fueled revolution in communications over the last twenty 
years. But that does not mean we cannot nor should not be doing better. 
I find it unacceptable that Americans in big cities like Boston don't 
enjoy the prices or level of service common in cities in South Korea or 
Japan. It is wrong that seven million Americans in small towns like 
Monroe and in sections of the western part of my State enjoy no 
broadband service at all. And the fact that well over half of our 
public school kids in Boston do not have Internet service at home is 
hurting their ability to learn and compete.
    Mr. Chairman, I believe that there is a clear role for your agency 
and Congress to play to change these circumstances. But as you know, 
your authority to do so has come into question because a Federal 
appeals court ruled last week that the agency is highly limited in what 
it can do under the current regulatory classification of broadband 
services. I have not advocated that the FCC reclassify broadband 
services as a result of this decision because I trust your judgment and 
want you to explore all options. But I absolutely believe that the 
agency has that legal authority to reclassify the service in order to 
protect consumers and provide for universal access to affordable 
broadband.
    According to the FCC General Counsel, the court decision places a 
number of Americans and American communities at risk of being left 
behind. He wrote recently that the ``decision may affect a significant 
number of important Plan recommendations. Among them are 
recommendations aimed at accelerating broadband access and adoption in 
rural America; connecting low-income Americans, Native American 
communities, and Americans with disabilities; supporting robust use of 
broadband by small businesses to drive productivity, growth and ongoing 
innovation; lowering barriers that hinder broadband deployment; 
strengthening public safety communications; cybersecurity; consumer 
protection, including transparency and disclosure; and consumer 
privacy.''
    On the other side, telephone and cable companies are arguing that 
they should be unregulated and free to deliver broadband service as 
they wish until a new law is written. And I am not opposed to 
considering a new legal regime of governance designed specifically for 
broadband service. But I do not believe broadband either should or 
needs to go without FCC oversight until then. If the Commission can 
come up with an alternative to reclassification of broadband service 
for the purpose of fulfilling your mission, then I am open to hearing 
it. My bottom line, though, is that we must ensure that the values that 
produced ubiquitous telephone service in the 20th century combined with 
the market incentives for competition in the 1996 Telecommunications 
Act are part of the 21st century's platform for communication. The FCC 
has it within its authority to do that by revisiting the last 
Administration's regulatory decisions, and if necessary we can 
supplement those efforts legislatively.
    The Broadband Plan calls for the United States to develop the most 
robust, widely accessible broadband infrastructure in the world by 
2020. It states that we can achieve that by releasing more spectrum to 
encourage wireless broadband competition, better informing consumers, 
and protecting the open Internet. You have also suggested modernizing 
the Universal Service Fund and investing in a wireless network police 
and firefighters can access and rely on to safeguard their vital 
communications during emergency situations. Those efforts would 
respectively result in investments in rural broadband and would ensure 
that the radio collapses that occurred in the wakes of 9/11 and 
Hurricane Katrina never happen again. I support each of these 
initiatives.
    I have a number of questions for you today that I hope will help 
give Americans the clearest picture possible of how your 
recommendations will produce results and what we in Congress need to do 
to help you. And as you pursue those results, you can be confident that 
you have an ally in this, Senator.
                                 ______
                                 
 Response to Written Question Submitted by Hon. John D. Rockefeller IV 
                                  to 
                        Hon. Julius Genachowski

    Question. As I noted at our hearing, in the near-term, I want the 
FCC to use all of its existing authority to protect consumers and 
pursue the broad objectives of the broadband plan. How, if at all, 
would classification of Internet access service as either a 
telecommunications service or information service affect efforts to 
address online copyright theft, computer viruses or spam, or 
cybersecurity?
    Answer. The D.C. Circuit's opinion in Comcast v. FCC cast serious 
doubt on the legal theory the Commission used for the past few years to 
support its vital role with respect to broadband Internet access. I 
have shared with my fellow Commissioners a draft Notice of Inquiry for 
their consideration at the Commission's June 17 Open Meeting. This 
Notice would initiate an agency proceeding to seek public comment on 
how the Commission should best address the challenge that Comcast has 
handed us. It would seek comment on all options, and invite any ideas 
for how the Commission should proceed, including: maintaining the 
current ``information service'' classification of services such as 
cable modem and DSL Internet access; classifying broadband Internet 
connectivity service as a ``telecommunications service'' to which all 
the requirements of Title II of the Communications Act would apply; and 
a ``third way''--similar to the highly successful approach that has 
been used for cell phone services since 1993--under which the 
Commission would identify the Internet connectivity service that is 
offered as part of wired broadband Internet service as a 
telecommunications service and forbear from applying all provisions of 
Title II other than the small number that are needed to implement 
fundamental universal service, competition, and consumer protection 
policies.
    As you know, Section 1 of the Communications Act explains that the 
Commission exists ``for the purpose of the national defense [and] for 
the purpose of promoting safety of life and property through the use of 
wire and radio communication.'' Cybersecurity is a growing concern, and 
the Commission has recently begun two proceedings to assess our needs 
in this area: we have launched an inquiry on the ability of existing 
broadband networks to withstand significant damage or severe overloads 
as a result of natural disasters, terrorist attacks, pandemics or other 
major public emergencies; and we have begun a proceeding to seek public 
comment on the proposed creation of a new voluntary cybersecurity 
certification program that would encourage communications service 
providers to implement a full range of cybersecurity best practices. We 
will examine the records of these proceedings closely, along with the 
record generated in response to the Notice of Inquiry on our legal 
framework. To the extent that the Commission possessed the necessary 
authority to address cybersecurity, as well as online copyright theft, 
computer viruses or spam before Comcast, the ``third way'' I mentioned 
above would protect that authority. If, on the other hand, the 
Commission decides to maintain the information service classification, 
jurisdictional issues would be addressed on a case-by-case basis, in 
light of the particular details of the proposal at issue.
    I welcome your recent announcement that you, along with Chairmen 
Kerry, Waxman, and Boucher, intend to start a process to develop 
proposals to update the Communications Act. I welcome that process, and 
any new ideas that others may propose to address this issue, and the 
Commission stands ready to serve as a resource to Congress as it 
considers legislative changes in this area.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                        Hon. Julius Genachowski

    Question 1. I appreciate and support the efforts of the Federal 
Communications Commission (FCC) to provide a special emphasis on the 
needs of Native Americans. Broadband adoption rates by those living on 
Tribal lands continue to be among the lowest of any population group. 
According to the FCC's data, fewer than 10 percent of those living on 
Tribal lands have terrestrial broadband available. Factors contributing 
to this situation include the rural nature of many of these lands and 
the lack of adequate broadband deployment. The plan also notes the 
similar circumstances facing Native Alaskans. I am most pleased with 
the FCC's expression that the plan's recommendations addressing Tribal 
communities are intended to include Native Hawaiians. Do I have your 
assurance that as you move forward with your efforts to improve 
broadband deployment and adoption in Native communities, you will take 
into consideration the unique needs of Native Hawaiian communities and 
take appropriate steps to fully address these needs?
    Answer. Yes. As the Commission moves forward in its efforts to 
improve broadband deployment and adoption in Native communities, we 
will most certainly take into consideration the unique needs of Native 
Hawaiians and work to address those needs. The National Broadband Plan 
is intended to bring broadband to all Americans. Many of the 
recommendations in the Plan will assist communities, including Native 
Hawaiians, that have fallen behind with respect to broadband deployment 
and adoption. The Plan also includes a number of recommendations to 
improve broadband deployment and adoption on Tribal lands specifically. 
We intend for as many of these recommendations to apply to Native 
Hawaiians as possible consistent with current and future law.

    Question 2. Can you outline the impact that ``repacking'' the 
broadcast band would have on Hawaii? As you know, Kauai is served by 
translators. How would the FCC's proposals affect this population? As 
we saw recently with tsunami warnings, this emergency service provided 
by these translator stations was essential to potentially saving lives. 
Moreover, Hawaii Public Television also serves the entire state with 
translators. Will this service be put in jeopardy?
    Answer. We recognize the value and importance to the public of 
continuing to maintain a viable broadcast television service. For 
example, as you observe with respect to the tsunami warnings provided 
by TV translators on Kauai, TV stations provide important services that 
must be preserved. We therefore will seek to limit the impact on 
television service from recovery of spectrum, and no stations will be 
required to cease operations. In order to make spectrum available for 
new uses, we may need some stations to change their channels and/or we 
may give others the opportunity to share channels. The plan under 
consideration for recovery of broadcast television spectrum would not, 
however, require that any stations involuntarily share or otherwise 
yield their channels; any such actions would be voluntary on the part 
of station licensees. Like stations elsewhere in the country, stations 
in Hawaii, both full service and low power (including translators) 
could be required to change channels or may seek to share channels. 
However, no broadcaster would have to go off the air. The Commission 
will carefully consider the interests of television broadcasters and 
the public as it proceeds with the recovery of spectrum for new 
broadband uses.

    Question 2a. To follow up on this point, what does ``repacking'' 
and channel sharing mean for over-the-air HD? I also understand that 
the majority of Honolulu TV stations are multi-casting new content. 
What would happen to this service? Will my constituents need to rescan 
digital TV's and converter boxes? If channels are moved will my 
constituents need to purchase new antennas?
    Answer. Re-packing by itself would have no impact on a station's 
ability to provide HD or any multicast services it may choose to offer. 
With respect to channel sharing, information gathered in preparation of 
the National Broadband Plan indicates that two stations sharing a 
channel should each be able to provide HD, multicast SD and mobile 
program services. Arrangements involving sharing between more than two 
stations could limit the service options of individual broadcasters in 
such arrangements to some extent and, in particular, their ability to 
provide HD and multicast services simultaneously. Any such outcome 
would be the result of voluntary action by the affected broadcaster, 
and would not be imposed by the re-packing plan recommended in the 
National Broadband Plan.
    Any rearrangement of television channels, which includes re-
packing, would require viewers to re-scan their digital television 
receivers and converter boxes. Also, viewers might need to obtain new 
antennas in cases where local stations would: (1) re-locate to a new 
transmitter at a site farther away or (2) move to low VHF channels 
(channels 2-6) and a viewer's antenna does not already include a 
capability for effective reception of low VHF signals.

    Question 2b. Hawaii broadcasters have expressed some concerns with 
the voluntary nature of your spectrum proposals. How would the 
Commission proceed if no local broadcasters agree to ``share'' channels 
or turn in their licenses all together?
    Answer. For the Plan to work, we don't need all, or even most 
licensees to voluntarily reducing use of UHF spectrum by going off the 
air, channel sharing or moving to the VHF band. If a limited number of 
broadcasters in a limited number of markets relinquish UHF spectrum, 
our staff believes we can free up a very significant amount of 
bandwidth. I believe, and the staff at the FCC believes, that a 
voluntary approach will work. We do not believe that it will come to 
the point where we have to examine other mechanisms.

    Question 2c. Can you further elaborate on spectrum user fees and 
how you envision the Commission proceeding with them?
    Answer. The National Broadband Plan calls on Congress to grant the 
FCC and NTIA authority to impose spectrum fees, but only on spectrum 
that is not licensed for exclusive flexible use. In my view, spectrum 
fees can serve some of the same effects that a well-functioning market 
produces by compelling spectrum users to recognize the value to society 
of the spectrum that they use.

    Question 3. The National Broadband Plan (NBP) proposes a goal of 
having 100m homes subscribed at 100 Mbps by 2020 while the leading 
nations already have 100 Mbps fiber-based services at costs of $30 to 
$40 per month and beginning roll-out of 1 Gbps residential services, 
which the FCC suggests is required only for a single anchor institution 
in each community by 2020. This appears to suggest that the U.S. should 
accept a 10 to 12 year lag behind the leading nations. What is the 
FCC's rationale for a vision that appears to be firmly rooted in the 
second tier of countries?
    Answer. The National Broadband Plans sets forth a vision for the 
United States to lead the world in the number of homes and people with 
access to affordable, world-class broadband connections. The 100-
squared initiative, which is an aspiration goal of providing 100 
million homes with access to 100 Mbps download speeds by 2020, will 
help ensure America's global competitiveness in the 21st century. A 
widespread level of affordable high-speed connectivity will encourage 
innovators to develop the next generation of cutting-edge applications. 
As a milestone, by 2015, 100 million U.S. homes should have affordable 
access to actual download speeds of 50 Mbps and actual upload speeds of 
20 Mbps.
    The Plan also sets forth recommendations designed to spur research 
and development, which are also key aspects of ensuring that America 
remains a broadband world leader. In particular, the Plan recommends a 
renewed focus on a Federal broadband research and development funding 
agenda, which includes broadband networks, equipment, services and 
applications. For U.S. companies to continue to be leaders in high-
value areas of the global broadband ecosystem, they must continue to 
generate and benefit from scientific innovation.
    Moreover, the Plan's universalization targets of 4 Mbps download 
and 1 Mbps upload is aggressive. It is one of the highest 
universalization targets of any country in the world. Many nations, 
such as South Korea and Finland, adopted short-term download targets 
around 1 Mbps. The Plan recommends reevaluting the 4 Mbps target every 
year so this target may rise over time, which will ensure that 
Americans continue to receive high quality broadband access at an 
affordable rate, and that consumers in rural areas will continue to 
receive broadband service that is reasonably comparable to the service 
provided in urban areas.

    Question 3a. 100 Mbps service typically costs $100 per month in the 
U.S., or about 3 times that of other countries, and some have claimed 
that these costs will go up under the proposed Plan. We already know 
that price is one of the barriers to broadband adoption in this 
country. What is the FCC's vision for how prices in the U.S. should 
compare to other developed nations, and how will this be achieved?
    Answer. One of the goals of the Plan is for every American to have 
access to robust broadband service at an affordable price. The 
Commission intends to achieve this and other goals through policies 
that ensure robust competition, and as a result, maximize consumer 
welfare, innovation and investment. Although the price of broadband 
service is relevant to achieving our goal, no single metric can provide 
an adequate basis for comparison particularly given differences between 
the U.S. and other developed nations in measures of household income, 
market and political structures, demography and geography.
    Pursuant to the Broadband Data Improvement Act, the FCC will 
continue to assess its international standing as part of the annual 
report required by Section 706 of the Communications Act. The report 
intends to compare the extent of broadband service capability, 
including information about transmission speeds and price, in a total 
of 75 communities in at least 25 countries. Part of this review 
involves comparing relevant similarities and differences in each 
community, including their market structures, level of competition, the 
types of technologies deployed, applications and services those 
technologies enable, the regulatory models, types of applications and 
services used, and information about business and residential use of 
such services. This information will help the Commission staff evaluate 
our country's standing relative to other developed nations based on 
several parameters, which will provide a more holistic comparison than 
price alone.

    Question 3b. Is the FCC committed to promoting the availability of 
symmetric broadband services which can enable telework, home-based 
entrepreneurship, home-based health care and more?
    Answer. The National Broadband Plan included many recommendations 
meant to remove barriers to and promote telework and support 
entrepreneurship, as well as modernize health IT. The Plan recommended 
that Congress consider eliminating tax and regulatory barriers to 
telework and that the Federal Government should promote telework 
internally. I welcome the opportunity to discuss any other ideas you 
may have on promoting these home-based options.

    Question 4. While the NBP tasks the FCC with the commendable goal 
of ensuring all Americans have access to broadband, it does not ensure 
that all Americans will receive comparable affordable services. In 
reality, the 100 squared plan (100 million households receiving 100 
Mbps) will likely be implemented in urban areas, while rural Americans 
are only assured of a speed of 4 Mbps. Are we no longer committed to 
ensuring that all Americans receive comparable affordable communication 
services?
    Answer. The Commission remains committed to ensuring that Americans 
in all regions of the Nation have access to telecommunications and 
information services that are reasonably comparable to those services 
provided in urban areas and at rates that are affordable and reasonably 
comparable to rates charged for similar services in urban areas, as 
required by section 254 of the Communications Act. I believe that 4 
Mbps broadband service is, in fact, reasonably comparable to the 
broadband service provided in urban areas today. Although the National 
Broadband Plan set an aspirational goal of 100 Mbps, the median speed 
of broadband service purchased by consumers today is 4 Mbps, and only 6 
percent of consumers subscribe to broadband service that exceeds 10 
Mbps. Moreover, it is important to balance the cost of funding 
universal service against the burdens on consumers who contribute into 
the fund. While I believe that 4 Mbps is an appropriate target today, I 
am committed to revisiting that target every 4 years and adjusting it 
as circumstances change. Doing so will ensure that there is no digital 
divide in this country.

    Question 4a. Will this lead to a bandwidth divide between urban and 
rural Americans?
    Answer. As discussed above, 4 Mbps is the median speed of broadband 
service currently purchased by consumers and is therefore an 
appropriate target today. I am committed to revisiting that target 
every 4 years and adjusting it as circumstances change to ensure that 
services in rural areas are reasonably comparable to broadband services 
in urban areas. Doing so will ensure that there is no digital divide in 
this country.

    Question 5. Under the NBP, rural communication carriers would be 
required to move from ``rate of return regulation'' to ``price cap 
regulation.'' Under rate of return regulation, rural telecommunications 
providers have been able to invest in the build-out of broadband 
infrastructure that is meeting the growing needs for bandwidth across 
rural America. Why would it be good public policy to abandon the rate 
of return regulatory system that has already allowed the deployment of 
broadband to many rural, high-cost areas of the country?
    Answer. The National Broadband Plan sets forth a vision to provide 
broadband access to all Americans, regardless of where they live and 
regardless of the regulatory classification of their carrier. Many 
providers, including both price cap and rate-of-return carriers, have 
made significant investments in broadband, and the Plan outlines ways 
to reduce costs, such as pole attachment and rights of way reform, to 
promote further investment to ensure all Americans have access to 
broadband. Yet, the Plan also recognizes that there are some geographic 
areas that lack a private business case to deploy broadband. Doing 
nothing would lead to a growing digital divide, which is not an option.
    As one critical step to achieve the goal of universal broadband, 
the Commission must reconfigure the current High-Cost Universal Service 
Fund, which is designed to support voice service, to a new universal 
service program, described in the Plan as the ``Connect America Fund,'' 
that will provide support for broadband networks capable of providing 
voice services. As part of this conversion, the Plan recommends moving 
rate-of-return carriers to incentive regulation. The Plan does not, 
however, specify the type of incentive regulation, such as price cap.
    A shift from rate-of-return to incentive regulation advances both 
to the general goal of ensuring widespread deployment of broadband 
networks and the specific tool of universal service reform. Rate-of-
return regulation was implemented at a time when monopoly providers 
offered regulated voice telephone service over copper wires in a 
particular geographic area. Such an era no longer reflects the reality 
of converging technologies and competition in the 21st century 
broadband world. Indeed, a growing number of rural carriers have 
voluntarily elected to convert to price cap regulation to become more 
efficient and competitive. Moreover, the conversion to incentive 
regulation could help limit growth in the legacy High-Cost Universal 
Service Fund while the Commission moves to adopt a more efficient and 
targeted funding mechanism for government support for broadband 
investment.
    Incentive regulation could take many forms. Indeed, the majority of 
states have already recognized the benefits of moving to some form of 
incentive regulation--with over 30 states having already eliminated 
rate of return regulation for local rates. States have found it 
possible to craft regimes that provide the necessary stability for 
ongoing investment. The Commission is seeking comment on the 
recommendation in the Plan, including the proposal to move to incentive 
regulation. The Commission also asks parties to suggest other 
alternatives that would allow the Commission to achieve the National 
Broadband Plan goals of world-leading, affordable broadband service for 
all Americans. The Commission welcomes and encourages all interested 
parties to provide suggestions, data and recommendations in response to 
the Notice.

    Question 6. The NBP says that the FCC should ``include market-based 
mechanisms to determine the firms that will receive Connect America 
Fund support and the amounts they will receive.'' Can you give some 
examples of what this market-market based mechanism might be?
    Answer. The National Broadband Plan recommends that the Connect 
America Fund should rely on market-based mechanisms where appropriate 
to determine the entities that should receive support and how much 
support should be provided. On April 21, 2010, the Commission adopted a 
Notice of Inquiry and Notice of Proposed Rulemaking, which sought 
comment on a procurement auction mechanism proposed by 71 economists. 
In addition, the Commission previously sought comment on competitive 
bidding, including reverse auctions. Requests for proposals (RFPs) or 
other procurement processes are additional examples of market-based 
mechanisms that could be used to determine which entities should 
receive support and support levels.

    Question 6a. As changes to the price regulation structure are made, 
and market-based mechanisms are implemented to determine which 
providers will receive support, what consideration has been given to 
the billions of dollars in loans rural telecommunication providers have 
borrowed from the Rural Utilities Service (RUS), as well as private 
sector financiers Rural Telephone Finance Cooperative (RTFC), CoBank, 
and others, to continue to expand and improve broadband services to 
their customers in rural America? Do you believe these investments 
might be put in jeopardy as these policy shifts move forward and create 
uncertainty in the market?
    Answer. The Commission staff met with RUS and CoBank, among others, 
on a variety of occasions to exchange ideas and get their input as we 
developed recommendations for the Plan. The recommendations in the Plan 
call for a staged and measured transition to enable the industry time 
to prepare and make adjustments. The Plan recommends the creation of a 
Connect America Fund to support broadband service in areas that 
otherwise would not have access to broadband because the costs of 
serving such areas exceed the revenues. In other words, the Plan 
recommends providing support to geographic areas that lack a private 
sector business case to justify deployment and the provision of 
service--areas that therefore would not have any broadband access 
absent public support.
    I believe we should ensure that communities that have already have 
access to broadband today continue to have such access in the future. 
An important component of the Plan's recommendations is the recognition 
that some areas will require ongoing support from the new Connect 
America Fund to maintain broadband service. The Commission is in the 
process of implementing these recommendations and looks forward to 
receiving input from RUS, CoBank and others on how to craft rules that 
will create a stable environment for ongoing investment in rural 
America.

    Question 7. Please describe the steps that have been taken by the 
FCC to coordinate with the RUS to ensure that decisions made by the 
FCC, and its related entities such as the National Exchange Carrier 
Association (NECA), do not put into jeopardy investments made by rural 
carriers and the underlying loans that made such investments possible.
    Answer. The Commission staff had a variety of meetings with the 
leadership and staff at RUS, as well as meetings with NECA and 
representatives of rural carriers, including OPASTCO, WTA and NTCA to 
receive input on the development of the Plan. We will continue to meet 
with RUS, NECA and other interested stakeholders throughout the 
rulemaking process to solicit input and factual information that will 
enable the Commission to craft workable policies that will ensure that 
all Americans have access to broadband.

    Question 8. Chapter 17 of the plan includes a section on the legal 
framework for the FCC's implementation of the plan. In your testimony 
you stated that your counsel, along with interested outside counsel, 
are evaluating different options and possibilities. Concerns have been 
raised about the impact that the uncertainty of future actions by the 
FCC would have on decisions by broadband providers to invest in 
upgrades or expand service. How realistic are these concerns? What 
actions can the FCC take now to allay these concerns and to provide an 
environment that will continue to create jobs and stimulate investment 
and innovation?
    Answer. Promoting continued investment and job creation, both in 
the core broadband networks and through Internet-based services and 
applications that ride on such networks, is a key priority for the FCC 
and a key focus of the National Broadband Plan. The private sector is 
the key to investment and job creation, but government policy can help 
facilitate those outcomes, including through recommendations of the 
National Broadband Plan to spur broadband deployment and adoption, such 
as universal service reform. Telecommunications policy must take 
account of current market and technological realities.
    After the National Broadband Plan was released, the United States 
Court of Appeals for the District of Columbia Circuit released its 
decision in Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). The 
Comcast decision casts serious doubt on whether the legal framework the 
Commission chose for broadband Internet services nearly a decade ago is 
adequate to achieve core broadband policies, which prior Commissions 
thought they had legal authority to implement. To confront this 
challenge, I have shared with my fellow Commissioners a draft Notice of 
Inquiry for their consideration at the Commission's June 17 Open 
Meeting. This Notice would initiate an agency proceeding to seek public 
comment on how the Commission should best address the challenge that 
Comcast has handed us, including how the agency can foster 
predictability and promote innovation and investment. It would seek 
comment on all options, and invite any ideas for how the Commission 
should proceed, including: maintaining the current ``information 
service'' classification of services such as cable modem and DSL 
Internet access; classifying broadband Internet connectivity service as 
a ``telecommunications service'' to which all the requirements of Title 
II of the Communications Act would apply; and a ``third way''--similar 
to the highly successful approach that has been used for cell phone 
services since 1993--under which the Commission would identify the 
Internet connectivity service that is offered as part of wired 
broadband Internet service as a telecommunications service and forbear 
from applying all provisions of Title II other than the small number 
that are needed to implement fundamental universal service, 
competition, and consumer protection policies.
    As you know, Chairmen Rockefeller, Waxman, Kerry, and Boucher, have 
announced they will start a process to develop proposals to update the 
Communications Act. I welcome that process, and any new ideas that 
others may propose to address this issue, and the Commission stands 
ready to serve as a resource to Congress as it considers legislative 
changes in this area.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                        Hon. Julius Genachowski

    Question 1. Writing on the effect of the recent court decision on 
the National Broadband Plan, the FCC General Counsel wrote, 
``yesterday's decision may affect a significant number of important 
Plan recommendations. Among them are recommendations aimed at 
accelerating broadband access and adoption in rural America; connecting 
low-income Americans, Native American communities, and Americans with 
disabilities; supporting robust use of broadband by small businesses to 
drive productivity, growth and ongoing innovation; lowering barriers 
that hinder broadband deployment; strengthening public safety 
communications; cybersecurity; consumer protection, including 
transparency and disclosure; and consumer privacy.'' Mr. Chairman, 
given these specific communities and issues that the decision places at 
risk, how long can the FCC examine the decision before taking action?
    Answer. I intend to address the Commission's legal framework for 
broadband by the end of this year. As you know, after the National 
Broadband Plan was released, the United States Court of Appeals for the 
District of Columbia Circuit released its decision in Comcast Corp. v. 
FCC, 600 F.3d 642 (D.C. Cir. 2010). The Comcast decision casts serious 
doubt on whether the legal framework the Commission chose for broadband 
Internet services nearly a decade ago is adequate to achieve core 
broadband policies, which prior Commissions thought they had legal 
authority to implement. To confront this challenge, I have already 
shared with my fellow Commissioners a draft Notice of Inquiry for their 
consideration at the Commission's June 17 Open Meeting. This Notice 
would initiate an agency proceeding to seek public comment on how the 
Commission should best address the challenge that Comcast has handed 
us. It would seek comment on all options and invite any ideas for how 
the Commission should proceed, including: maintaining the current 
``information service'' classification of services such as cable modem 
and DSL Internet access; classifying broadband Internet connectivity 
service as a ``telecommunications service'' to which all the 
requirements of Title II of the Communications Act would apply, and; a 
``third way''--similar to the highly successful approach that has been 
used for cell phone services since 1993--under which the Commission 
would identify the Internet connectivity service that is offered as 
part of wired broadband Internet service as a telecommunications 
service and forbear from applying all provisions of Title II other than 
the small number that are needed to implement fundamental universal 
service, competition, and consumer protection policies.
    I welcome your recent announcement that you, along with Chairmen 
Rockefeller, Waxman, and Boucher, intend to start a process to develop 
proposals to update the Communications Act. I welcome any new ideas 
that others may propose to address this issue, and the Commission 
stands ready to serve as a resource to Congress as it considers 
legislative changes in this area.

    Question 1a. I was here in 1996 and I can assure you that I never 
meant for cable and telephone broadband Internet service providers to 
fall outside the authority of the FCC to protect consumers, protect 
against discrimination, ensure that people with disabilities are given 
consideration, or ensure that modern communications are available to 
everyone in America. Given the history of communications policy, would 
it not fall outside of our values to have a central communications 
service not subject to the jurisdiction of the Federal Communications 
Commission?
    Answer. Congress created the Federal Communications Commission with 
an explicit mission: ``to make available, so far as possible, to all 
people of the United States . . . A rapid, efficient, Nation-wide, and 
world-wide wire and radio communications service with adequate 
facilities at reasonable charges, for the purpose of the national 
defense, [and] for the purpose of promoting the safety of life and 
property through the use of wire and radio communication.'' Broadband 
is increasingly essential to the daily life of every American. It is 
fast becoming the primary way we as Americans connect with one another, 
do business, educate ourselves and our children, receive health care 
information and services, and express our opinions. That is why in 
March, a unanimous FCC said in our Joint Statement on Broadband that 
``[w]orking to make sure that America has world-leading high-speed 
broadband networks--both wired and wireless--lies at the very core of 
the FCC's mission in the 21st Century.''

    Question 2. Mr. Chairman, some have argued that you should cede 
authority over broadband service to the FTC until and unless the 
Congress writes a new law. Yet the FTC has no clear rulemaking 
authority to benefit consumers in policy matters such as universal 
service reform, lifeline/link-up for broadband, emergency 
communications policies, and accessibility for the disabled. And limits 
to its rulemaking authority make it unlikely the FTC could implement 
the specific goals of the FCC's national broadband plan, such as 
increased transparency on broadband service speeds, truth-in-billing 
reform, and increased privacy protections. Also, the FTC has no clear 
proactive rulemaking capability to promote competition policy, through 
policies such as data roaming, interconnection, or pole attachment rate 
reform. These policies are key components of the FCC's national 
broadband plan. Mr. Chairman, what do you say to those who argue that 
the FCC should cede its authority over communications over broadband to 
the FTC?
    Answer. In the decades since Congress created the Commission, the 
technologies of communications have changed and evolved, and with the 
guidance of Congress, the Commission has tailored its approach to these 
changes. But the basic goals have been constant: to encourage private 
investment and the building of a communications infrastructure that 
reaches all Americans wherever they live; to pursue meaningful access 
to that infrastructure for economic and educational opportunity and for 
full participation in our democracy; to protect and empower consumers; 
to promote competition; to foster innovation, economic growth, and job 
creation; and to protect Americans' safety. While the FCC will continue 
to work closely with our sister agencies including the Federal Trade 
Commission and the United States Department of Justice on issues of 
mutual concern, I believe the FCC has a unique and vital role in 
achieving these goals.

    Question 3. Mr. Chairman, Section 706 of the Telecommunications Act 
of 1996 requires the FCC to determine whether ``advanced 
telecommunications capability [i.e., broadband or high-speed access] is 
being deployed to all Americans in a reasonable and timely fashion.'' 
If this is not the case, the Act directs the FCC to ``take immediate 
action to accelerate deployment of such capability by removing barriers 
to infrastructure investment and by promoting competition in the 
telecommunications market.'' Mr. Chairman, how does your plan remove 
barriers to investment and promote competition in the 
telecommunications market in accordance with the direction in the 1996 
Act?
    Answer. Many of the recommendations in the National Broadband Plan 
focus on removing or reducing barriers to investment and competitive 
entry. In particular, the Plan focuses in several areas on the key 
input components of broadband infrastructure and service deployment. 
For example, this month the Commission is scheduled to implement the 
Plan's recommendations regarding utility pole attachments, allowing the 
use of existing infrastructure for the deployment of fiber and wireless 
networks to provide next generation services. Also, the Plan makes 
several recommendations to improve the availability of spectrum, which 
is a crucial ingredient for many new broadband services. In addition, 
the Plan recommends significantly reforming the universal service 
program to ensure that broadband services are being deployed 
effectively and efficiently throughout the Nation.

    Question 4. Nearly 100 million Americans are not connected to the 
Internet. According to your report, ``they are older, poorer, less 
educated, more likely to be a racial or ethnic minority, and more 
likely to have a disability than those with a broadband Internet 
connection at home.'' Cost remains the primary barrier to entry, and 
limited digital proficiency, especially among seniors and the less 
educated, is also cited as a reason for this gap. And children in the 
inner city and many rural areas lack the textbooks, tools and teachers 
to help improve their readiness for the digital economy. I understand 
that not all Americans will have access to the same level of broadband 
service, but I believe we should be making a basic level of service 
available to everyone at an affordable rate. In the 20th century, we 
determined that Americans needed access to the predominant 
communications network of that time, telephone service, to get a job, 
to connect with each other, and to be able to access health and 
emergency services. How are those values reflected in your plan for 
broadband service and do Americans need broadband service for those 
purposes today?
    Answer. As more aspects of daily life move online and offline 
alternatives disappear, the range of choices available to people 
without broadband narrows. Getting a job is more difficult without 
access to online postings and the ability to submit applications 
online. Students without broadband lack access to the same level of 
information as their connected peers, and attempts to find medical 
information without access to online health sources limits patients' 
knowledge, choices and care. People without a broadband connection will 
certainly not experience the potential benefits of broadband--increased 
earning potential, enhanced connections with friends and family, 
improved health and a superior education. Recommendations in the 
National Broadband Plan reflect the importance of equality of access to 
broadband service by setting a path to extend broadband networks 
through public investment in privately owned infrastructure. The Plan 
also includes a variety of recommendations to reduce barriers to 
adoption of broadband--cost, digital literacy and relevance.

    Question 4a. Mr. Chairman, I am worried about those kids who have 
no Internet service at home even though Comcast serves Boston. And I 
worry about the towns in Western Massachusetts subject to only one 
provider of service, partially served by only one provider, or lacking 
service all together. What do you say to those who argue that you 
should only focus on those completely without access to the Internet 
and leave the market alone as it relates to competition or urban 
affordability?
    Answer. The National Broadband Plan addresses all of these issues--
connecting the unserved, spurring competition, and foster adoption to 
address cost barriers for low-income consumers. To connect the 
unserved, the Plan sets forth a path to connect everyone to broadband, 
which include, among other things, transitioning the Universal Service 
Fund to support broadband. But, the Plan is not limited to connecting 
the unserved. Rather, the Plan contains multiple recommendations that 
will foster competition across the ecosystem. They include the 
following:

   Collect, analyze, benchmark and publish detailed, market-by-
        market information on broadband pricing and competition, which 
        will likely have direct impact on competitive behavior (e.g., 
        through benchmarking of pricing across geographic markets). 
        This will also enable the FCC and other agencies to apply 
        appropriate remedies when competition is lacking in specific 
        geographies or market segments.

   Develop disclosure requirements for broadband service 
        providers to ensure consumers have the pricing and performance 
        information they need to choose the best broadband offers in 
        the market. Increased transparency will incent service 
        providers to compete for customers on the basis of actual 
        performance.

   Undertake a comprehensive review of wholesale competition 
        rules to help ensure competition in fixed and mobile broadband 
        services.

   Free up and allocate additional spectrum for unlicensed use, 
        fostering ongoing innovation and competitive entry.

   Update rules for wireless backhaul spectrum to increase 
        capacity in urban areas and range in rural areas.

   Expedite action on data roaming to determine how best to 
        achieve wide, seamless and competitive coverage, encourage 
        mobile broadband providers to construct and build networks, and 
        promote entry and competition.

   Change rules to ensure a competitive and innovative video 
        set-top box market to be consistent with Section 629 of the 
        Telecommunications Act. The Act says that the FCC should ensure 
        that its rules achieve a competitive market in video 
        ``navigation devices,'' or set-top boxes--the devices consumers 
        use to access much of the video they watch today.

   Clarify the Congressional mandate allowing state and local 
        entities to provide broadband in their communities and do so in 
        ways that use public resources more effectively.

   Clarify the relationship between users and their online 
        profiles to enable continued innovation and competition in 
        applications and ensure consumer privacy, including the 
        obligations of firms collecting personal information to allow 
        consumers to know what information is being collected, consent 
        to such collection, correct it if necessary, and control 
        disclosure of such personal information to third parties.

    Further, the Plan also contains a variety of recommendations to 
increase adoption, including ways to address cost barriers to broadband 
adoption and utilization. In particular, the Plan recommends that the 
Commission expand Lifeline Assistance (Lifeline) and Link-Up America 
(Link-Up) to make broadband more affordable for low-income households. 
In addition, the Plan recommends that the Commission consider free or 
very low-cost wireless broadband as a means to address the 
affordability barrier to adoption.

    Question 4b. Mr. Chairman, you have repeatedly applauded a cable 
industry program offering half-priced service for 2 years for low 
income families with children in public middle school. It is called the 
A+ program. How many communities have signed up for that program and 
what could be done to make it more attractive?
    Answer. The cable industry has proposed the Adoption Plus (A+) 
program as a two-year pilot of a public-private partnership that would 
be designed to promote sustainable broadband adoption for middle-school 
aged children in low income households that do not currently receive 
broadband service. The cable industry suggested that the Federal 
Government provide funding to implement the pilot.
    The A+ proposal provides an example of private industry taking 
initiative and offering solutions to partner with other stakeholders 
and provide comprehensive solutions for overcoming multiple barriers to 
adoption for low-income school children. This program has not yet been 
implemented, so many details of the program may need to be refined to 
make sure that it is attractive for communities, competitively neutral, 
and effective.
    Several other efforts, such as Computers for Youth and Computers 
for Families, provide comprehensive solutions targeting low-income 
school-aged children and their families, and these programs could also 
serve as models for a national pilot program.

    Question 4c. The City of Boston applied for a BTOP grant to have 
municipal broadband service delivered to poor communities. It was 
rejected because there is cable modem and DSL service available there. 
But your study cites that cost remains the primary barrier to service 
for the working poor. If the private sector is not making some level of 
service available to low income consumers at a very low price or for 
free, shouldn't cities and municipalities have the opportunity to 
provide those services?
    Answer. The Commission is not involved with the evaluation or 
review of the Broadband Technology Opportunities Program (BTOP) so the 
Commission is unable to comment on the specifics of the City of 
Boston's application or the merits of their proposal. Concerns 
regarding the BTOP process should be directed to NTIA. The Plan 
recommends that Congress make clear that state, regional, and local 
governments can build broadband networks. Though municipal broadband 
has its risks and may discourage private investment, the Plan suggests 
that in the absence of private investment sufficient to meet local 
needs, towns and cities should have the right to move forward and build 
networks that serve their constituents as appropriate.

    Question 5. Mr. Chairman, both the DOJ and the NTIA submitted 
comments for the plan explaining that very few firms control the market 
for high-speed Internet access in the U.S. Most people have at most a 
choice of two providers who use broadband service to leverage the sale 
of a bundle of other services. The Harvard Berkman Center also 
submitted a study as part of your deliberation that concluded it was 
necessary to open incumbent telephone and cable networks for wholesale 
use by new entrants that want to provide competing services to people's 
homes. I know that this is a highly contentious issue and I think it 
speaks to the moderate approach you took to the construction of this 
plan that the issue is not directly addressed in your report. I agree 
that we should try better consumer disclosure and more wireless 
competition first, but how will the Commission determine whether and in 
what form it might be necessary to open the wires up to competition if 
the spectrum and disclosure policies you have proposed do not drive 
higher speeds and more competitive services? Is there anything 
different about the market of broadband services for small businesses 
that requires more heightened consideration of competition issues?
    Answer. The Commission, through its implementation of various 
provisions in the Communications Act, already requires many incumbent 
local phone companies to share certain inputs from their networks with 
competitors. The National Broadband Plan recommends that the Commission 
review the hodgepodge of requirements for network sharing and develop a 
comprehensive framework to ensure that broadband inputs, particularly 
for small business services, are widely available. As a part of this 
review, the Commission will also consider a variety of proposals for 
access to incumbent facilities. The Commission plans to review the 
needs of small businesses separately from those of residential users as 
the needs and services available to meet those needs may differ.

    Question 5a. In wireless, given the dominance of two carriers in 
the market today, what is your benchmark for success in making the 
wireless broadband industry more competitive?
    Answer. There are few areas in communications that present greater 
promise for our country than mobile--in terms of driving our economy 
and delivering broad opportunity for all Americans--and our goal must 
be for America to lead the world in mobile. To promote this goal, we 
must ensure that American consumers have access to competitive 
broadband data communications services whenever they want and wherever 
they are, and also ensure that the United States has the fastest and 
most extensive mobile networks in the world.
    Competition is important for many reasons, including, of course, 
that it produces low prices and high quality for consumers. Competition 
also drives invention and innovation which makes it especially 
important in a fast-changing marketplace like communications.
    For its 14th Annual Mobile Wireless Competition Report, we have 
undertaken a broader and more comprehensive analysis of the wireless 
industry than the Commission has conducted in years past. The 
Commission's competition policy will be fact-based and data-driven, and 
intended to support innovation and investment in the manner that best 
serves American consumers.

    Question 6. I am committed to doing whatever we need to do and 
spending what we need to spend to ensure that if another natural or 
terrorist disaster hits the United States our first responders are not 
left unable to communicate. Did the FCC propose a system that will 
require police, fire, and emergency service agencies to rely on 
commercial carriers for their mission-critical broadband communications 
needs because commercial carriers have provided you with some assurance 
that it will be made open for use by public safety officials? What is 
the advantage of going commercial rather than allocating it directly to 
public safety officials? As you know, scores of public safety agencies 
have expressed concern with that proposal.
    Answer. The National Broadband Plan proposes a comprehensive 
strategy for creating a nationwide interoperable broadband network for 
our Nation's police, fire and emergency services agencies. Under the 
Plan, these agencies will have full use of the 10 megahertz of 
dedicated 700 MHz spectrum that has already been allocated for public 
safety broadband services. This spectrum will meet public safety 
communications needs during normal operations and during most 
emergencies. In the rare cases where additional capacity is required, 
public safety users will have priority access to commercial networks, 
including in the 700 MHz D Block. This overall strategy is the best 
means of providing public safety users with adequate broadband capacity 
while enabling them to leverage 4G commercial deployments in the 700 
MHz band to significantly reduce costs.

    Question 7. Pending at the Commission are more than one dozen 
waiver requests filed by small and large jurisdictions, including 
Boston, that want to start constructing such a network right now. These 
jurisdictions seek to use the 10 MHz of spectrum already in the hands 
of the Public Safety Spectrum Trust, dedicated specifically to public 
safety in a manner that will be compliant with the Commission's broader 
public safety policies and standards. Chairman Genachowski, can you 
provide the Committee with your opinion on these waiver requests and 
when you expect the Commission to act on them?
    Answer. The Commission recently released an order granting 
conditional waivers for early deployment to twenty-one petitioners, 
including Boston. Each waiver recipient is required under the order to 
adhere to certain technical specifications, such as mandatory use of 
the LTE 3GPP Release 8 air interface, which is the version that major 
carriers have announced they will be deploying starting this year, and 
to submit detailed plans for achieving interoperability with other 
networks. We also expect that such submissions will include a 
discussion of any specialized equipment, features description of any 
specialized equipment, feature or application, and how it will be used 
to further public safety purposes, and how its use will conform to the 
Commission's stated interoperability goals. This order will enable the 
waiver recipients to move forward with their broadband deployment plans 
while preserving the Commission's long-term goals for nationwide 
interoperability.

    Question 8. Mr. Chairman, if I understand correctly, you have 
suggested a program by which you have indicated that some broadcasters 
would submit spectrum that they have licensed but not allocated in 
exchange for some portion of auction receipts, thereby creating a win-
win for them and wireless broadband users. And there is some room there 
for consideration. In the top 10 TV markets, a median of 20 channels 
out of 49 are directly being used by full-power broadcasters or to put 
it another way 120 out of nearly 300 MHz are occupied and the rest are 
lying fallow.
    As you know, the broadcast spectrum proposal has met with much 
skepticism and my broadcasters back home are no exception. I know that 
this spectrum is the equivalent of beachfront property on the airwaves. 
But I cannot support moving forward until I hear from my broadcasters 
that it is workable and truly a win-win. Can you elaborate more on 
channel sharing proposals in your plan? From what my broadcasters say, 
channel sharing would strip consumers of the ability to watch HD, 
multi-cast and mobile TV programming over-the-air. Is this accurate?
    Answer. As discussed below, channel sharing would not limit 
consumers' ability to watch HD, multicast, and mobile TV programming 
over-the-air. Under the approach described in the National Broadband 
Plan, channel sharing would be a voluntary option for broadcasters to 
reduce their operating costs and provide a potential source of capital 
for investment into programming. If a broadcaster chose not to 
participate, their broadcast services would not change from what they 
are today. With respect to station services under channel sharing, 
information gathered in preparation of the National Broadband Plan 
indicates that two stations sharing a channel should each be able to 
provide HD, multicast SD, and mobile program services. Channel sharing 
arrangements between more than two stations could, however, limit the 
service options of individual broadcasters in such arrangements to some 
extent and, in particular, their ability to provide HD and multicast 
services simultaneously.

    Question 8a. Mr. Chairman, my understanding is that the Plan 
recommends that the FCC ``repack'' the broadcast television bands in an 
effort to free up additional spectrum. Would re-scanning of TV's and 
converter boxes be necessary after repacking, would that create 
consumer confusion, and would this effect future multicast and HD 
programming?
    Answer. Viewers in markets where local stations were re-packed to 
new channels or changed channels as part of a sharing arrangement would 
need to re-scan their digital television receivers and converter boxes. 
We also anticipate that there would be a period of time before the re-
pack would take place. To avoid consumer confusion, information would 
be provided in advance advising viewers of the need to and the process 
to re-scan their receivers and the date on which the channel changes 
would take place. Re-packing by itself would have no impact on a 
station's ability to provide HD or any multicast/mobile services it may 
offer.

    Question 8b. Mr. Chairman, as you know, Commissioner Clyburn has 
expressed concerns about the effect this proposal would have on 
diversity in broadcasting and on local journalism. We also had a 
hearing on the future of journalism earlier this Congress. Where is the 
FCC on their inquiry in this arena?
    Answer. On January 21, 2010, the Commission issued a Public Notice 
announcing its examination of the Future of Media and Information and 
the Needs of Consumers. The objective of the review is to assess 
whether all Americans have access to vibrant, diverse sources of news 
and information that will enable them to enrich their lives and 
communities, as well as our democracy. The Public Notice set out a 
number of questions for which public comment was sought, and those 
comments were due on May 7, 2010. In addition to those submissions, 
project staff is reviewing existing studies, the records of other 
proceedings and other resources for pertinent data. Staff also is 
reaching out to industry, advocacy and public interest groups, 
academics and others to participate in the proceeding, through written 
filings or meetings. A Future of Media workshop on commercial media was 
held on March 4, and another, on public and other noncommercial media, 
on April 30. The project plans to issue a report by the end of the year 
which provides an assessment of the current media landscape, analysis 
policy options and, as appropriate, policy recommendations to the 
Commission, as well as other government entities and parties. The 
Inquiry will be conducted with great sensitivity to the First Amendment 
and the need to protect free speech and an independent press. Any 
recommendations will be crafted in furtherance of the longstanding 
public interest goals of the Commission's media policy, including 
diversity, localism and competition.

    Question 9. In the National Broadband Plan, the FCC makes several 
recommendations regarding wholesale competition regulations for 
broadband services provided to small businesses. One proposal under 
consideration by the FCC is a petition which seeks access to local 
fiber facilities in order to provide broadband services to small 
business customers. It is my understanding that the Small Business 
Administration Office of Advocacy supported that petition. Are multiple 
broadband providers competing to serve small businesses now and what 
can you do to encourage broadband service delivery and packaging for 
the unique needs of small businesses?
    Answer. I'm certain that there is a great deal of variability among 
small businesses throughout America regarding the competitive choices 
each has available to serve its unique needs. With a proper regulatory 
framework and suitable data necessary to implement that framework, we 
can better ensure that small businesses have sufficient competitive 
alternatives to meet their evolving needs. In response to the Plan's 
recommendations, we are undertaking a review of existing policies and 
development of just such a competitive framework.

    Question 10. Mr. Chairman, though this debate today has broken 
largely along partisan lines, it should not. Neither network neutrality 
nor ensuring that our communications network is accessible to everyone 
are partisan issues. The Christian Coalition's Vice President of 
Communications, Michele Combs put it best in testimony before your 
Commission when she said that ``We believe that organizations such as 
Christian Coalition should be able to continue to use the Internet to 
communicate with our members and with a worldwide audience without a 
phone or cable company snooping in on our communications and deciding 
whether to allow a particular communication to proceed, slow it down, 
block it, or offer to speed it up if the author pays extra to be on the 
`fast lane.' '' She went on to say, ``Any threat to the ability of 
organizations and groups to reach the American public at very low cost 
without permission is simply unacceptable and strikes at the heart of 
an engaged citizenry and well functioning democracy in the 21st 
century.'' Mr. Chairman, in your review of the comments on an Open 
Internet and network neutrality, have you noticed a disconnect between 
what those who use the Internet like the Christian Coalition on one of 
the political spectrum and Daily Kos on the other or are users largely 
united on this question?
    Answer. Staff review of the comments in the Open Internet 
proceeding is ongoing; we received reply comments from tens of 
thousands of people and entities at the end of last month. Commenters 
from across the political spectrum have expressed support for the 
proposed open Internet principles, with a particular emphasis on the 
benefits of the principles for promoting free speech and innovation, 
and enabling new and/or traditionally marginalized voices to 
participate online.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Byron L. Dorgan to 
                        Hon. Julius Genachowski

    Question 1. Reforming intercarrier compensation and the Universal 
Service Fund is a difficult but critical undertaking. Transitioning 
from a regime that supports voice telephony to one that supports 
broadband is not an easy task. The National Broadband Plan suggests 
that the current size of the fund can be used to bring fast and 
affordable broadband to the Nation. How do you plan to make these 
changes without growing the current size of the fund?
    Answer. Universal service resources are finite and contributions 
have grown significantly over the last decade. The contribution factor 
is at its highest ever level at more than 15 percent. To keep the 
overall size of the Universal Service Fund within baseline projections, 
the Commission will need to eliminate inefficient funding of legacy 
voice service and refocus Universal Service Funding to directly support 
modern communications networks that will provide broadband as well as 
voice services.
    The National Broadband Plan recommends a 10-year transition to 
ensure that service providers that rely on universal service to provide 
voice service to their communities can make the migration to broadband 
successfully. During this transition, the Plan recommends that the 
Commission establish a Connect America Fund to support broadband and a 
Mobility Fund to provide one-time support to consumers in states that 
significantly lag the national average for 3G service. During this same 
period, the Plan also recommends that the Commission reduce spending 
under the legacy high-cost support mechanisms and target the savings to 
the Connect America Fund and other recommendations in the National 
Broadband Plan. On April 21, 2010, the Commission adopted a notice of 
inquiry and notice of proposed rulemaking, which sought comment on: (1) 
moving rate-of-return companies to incentive regulation, (2) 
retargeting interstate access support to a new Connect America Fund, 
and (3) eliminating funding for competitive eligible telecommunications 
carriers over a five-year period. The Plan recommends that by the end 
of the transition, the Commission eliminate the legacy high-cost 
support mechanisms and all support will be provided through the Connect 
America Fund.

    Question 2. Today, according to one survey, North Dakota ranks 42nd 
out of fifty states in broadband speed. Your goal for ``100 Squared''--
100 million households with 100 megabits-per-second download speeds--by 
2020 is laudable. Yet the plan also calls for a reformed Universal 
Service Fund that supports broadband offerings at 4 Mbps. How can your 
universal service plan get us to ``100 Squared''? How will you 
structure the policies to meet these goals in a way that doesn't 
exacerbate the existing digital divide?
    Answer. The National Broadband Plan sets forth a path for the 
United States to lead the world in the number of homes and people with 
access to affordable, world-class broadband connections. The Plan 
includes a goal of connecting 100 million U.S. homes with affordable 
access to actual download speeds of at least 100 Mbps and actual upload 
speeds of at least 50 Mbps by 2020. The Plan recommends encouragement 
of private sector investment to realize this goal by, among other 
things, fostering competition, driving demand for increased network 
performance and lowering the cost of deploying infrastructure. These 
will help inform consumers about broadband performance, expand services 
and infrastructure, and reform access to rights-of-way to lower 
barriers to entry for firms.
    At the same time, ensuring all people have access to broadband 
requires the Commission to set a national broadband availability target 
to guide public funding. An initial universalization target of 4 Mbps 
of actual download speed and 1 Mbps of actual upload speed, with an 
acceptable quality of service for interactive applications, would 
ensure universal access. The 4 Mbps is the median speed received by 
residential consumers today, and what many consumers are likely to use 
in the near term, given past growth rates. A universalization target of 
4 Mbps download and 1 Mbps upload is aggressive. It is one of the 
highest universalization targets of any country in the world. Many 
nations, such as South Korea and Finland, have already adopted short-
term download targets around 1 Mbps.
    To ensure that consumers in rural areas receive broadband speeds 
reasonably comparable to urban areas, the Plan also recommends 
reevaluating this 4 Mbps funding target every 4 years and adjusting it 
as appropriate to reflect changing consumer use and demand. Doing so 
will ensure that there is no digital divide in this country.

    Question 3. Many of the goals laid out in the plan focus on 
mobility and the need for fast, extensive wireless networks. But I do 
not believe the plan addresses the issue of handset device exclusivity 
and its effect on competition. Chairman Genachowski, at a hearing in 
the Commerce Committee last June, you committed to reviewing the 
exclusive arrangements between wireless carriers and cell phone 
manufacturers. What is the current status is of the petition for 
rulemaking on handset device exclusivity filed in May of 2008?
    Answer. On May 20, 2008, the Rural Cellular Association filed a 
petition requesting that the Commission initiate a rulemaking 
proceeding examining ``exclusivity arrangements between commercial 
wireless carriers and handset manufacturers.'' The Commission collected 
a record on the petition last year. In addition to assessing the record 
submitted, Commission staff are meeting with interested parties and are 
independently monitoring and evaluating the availability of handsets to 
consumers, and to smaller service providers, in the mobile wireless 
marketplace.

    Question 4. There are a number of departments and agencies that 
work on broadband issues. How will the FCC work with those partners to 
improve broadband access and availability in Indian country?
    Answer. The NBP includes a number of recommendations to improve 
coordination across Federal departments and agencies that work on 
broadband issues. In particular, Recommendation 9.14 urges the 
Executive Branch to establish a Federal-Tribal Broadband Initiative 
specifically for this purpose. Once this Initiative is established, the 
Commission will work closely with its Federal partners on the 
Initiative to improve broadband access and availability on Tribal 
lands.
    We are already in the process of implementing other recommendations 
that will enable the Commission to more effectively coordinate with 
Federal partners. For example, we are creating an Office of Native 
American Affairs, which will work with other Federal departments and 
agencies to coordinate cross-agency efforts for helping Tribes. We 
expect to appoint a Director to this Office shortly. We are also in the 
process of establishing an FCC-Native Nations Broadband Task Force, 
which will include senior staff from all FCC Bureaus and Offices. This 
Task Force will ensure that Tribal concerns are considered in all 
broadband-related discussions and initiatives involving the Commission 
and other Federal departments and agencies.

    Question 5. The National Broadband Plan proposes establishing a 
Federal-Tribal Broadband Initiative, a FCC-Tribal Broadband Task Force 
and an Office of Tribal Affairs. How will these entities coordinate 
with tribes and with each other to assist tribes in improving broadband 
access?
    Answer. We envision that all three entities will coordinate with 
each other in a close and integrated manner. The Office of Native 
American Affairs will be led by a new Director, who will lead a staff 
focused exclusively on Native American issues. In addition to having 
dedicated staff support, the Director will also be able to leverage the 
full expertise and resources of the Commission through the FCC-Native 
Nations Broadband Task Force, which will be led by the Director and 
will include senior staff from all the Bureaus and Offices. Once the 
Federal-Tribal Broadband Initiative has been established, the Director 
and the Task Force will represent the Commission on the Initiative.
    With respect to coordinating with Tribes, the Office of Native 
American Affairs will engage in regular and meaningful communication 
with Tribal governments, organize outreach activities and events, and 
serve as a resource and partner to Tribal governments. In addition, 
both the FCC-Native Nations Task Force and the Federal-Tribal Broadband 
Initiative will include elected or appointed leaders of Tribal 
governments, which will enable and facilitate direct coordination with 
Tribes. The Task Force will also develop a formal FCC consultation 
policy for consulting with Tribal governments.

    Question 6. The lack of data is a consistent problem for most 
Indian issues, and broadband is no exception. I applaud your 
recommendations aimed at better broadband data collection on tribal 
lands. How can this data assist the FCC and others in increasing access 
to broadband for tribes?
    Answer. The lack of data regarding broadband deployment and 
adoption on Tribal lands renders it difficult to understand the true 
scope of the challenge, formulate intelligent policy, and address 
specific needs across Tribal communities. For example, we do not have a 
clear understanding of the amount of additional funding that would be 
needed to deploy broadband infrastructure to all Tribal lands. The lack 
of data also complicates efforts to measure the efficacy of adoption 
efforts and initiatives. With better data, we could begin the process 
of identifying needs, developing tailored approaches, and working with 
Tribes to implement real solutions.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                        Hon. Julius Genachowski

    Question 1. Almost eight and one half years after 9/11, an 
interoperable communications system for our first responders remains a 
goal rather than a reality. There are some actions the FCC can take in 
the immediate term to improve public safety communications. Pending at 
the FCC are waiver requests from several cities that want to start 
immediate construction of an interoperable public safety network. 
Seattle is one of the cities. Seattle is proposing to use spectrum 
already in the hands of the Public Safety Spectrum Trust in a manner 
that will be consistent and compliant with the Commission's broader 
public safety policies and standards.
    Public safety organizations in neighboring communities in Pierce 
County want to expand Seattle's proposed interoperable network 
southward once it is up and running. Last year, there were five police 
officers murdered in Pierce County. In one incident, law enforcement 
officials told me that its lack of interoperable communications across 
jurisdictions slowed down their manhunt to track down the perpetrator. 
Do you believe the Seattle waiver request is consistent with the public 
safety objectives of the national broadband plan?
    Answer. We recently released an order granting conditional waivers 
to twenty-one petitioners, including Seattle. This order will enable 
Seattle and the other waiver recipients to move forward with their 
broadband deployment plans while preserving the Commission's long-term 
goals for nationwide interoperability.

    Question 1a. The Commission's proposed broadband plan agenda 
indicates it will act these on petitions no later than in the third 
quarter this year. Can you assure me that the Commission will keep to 
this schedule?
    Answer. We have already released an order acting on these 
petitions.

    Question 2. The D Block auction during Chairman Martin's watch was 
a complete failure. The National Broadband Plan recommends licensing 
the D Block for commercial use, with options for public safety 
partnerships. That is a change from the earlier plan for the D block 
auction winner to build out a joint network for public safety and 
commercial use.
    There are some who argue that the spectrum should be given directly 
to local public safety. Most emergencies tend to be either local or 
regional in nature. Under this scenario, the local government would 
negotiate with a local carrier to operate the network. Why do you 
believe the approach described in the National Broadband Plan will be 
more successful than providing the spectrum directly to public safety 
in cities and regions and allowing them to negotiate with local 
telecommunications providers?
    Answer. The public safety broadband spectrum is licensed to the 
Public Safety Spectrum Trust (PSST), which includes on its board 
representation from a number of national public safety organizations. 
With regard to the commercial D Block adjacent to the public safety 
broadband spectrum, the Commission must auction the D Block for 
commercial use in order to comply with current law. Notwithstanding the 
legal requirement to auction the D Block, our analysis indicates that 
mere reallocation of the D Block to public safety would not ensure 
deployment of a nationwide, interoperable public safety broadband 
wireless network that is reliable and resilient. The National Broadband 
Plan's approach, on the other hand, will achieve this goal by providing 
public safety users with 10 megahertz of dedicated spectrum, priority 
access to 700 MHz commercial spectrum when they need it (providing 
significantly more capacity), and the ability to leverage commercial 
deployments--including in the D Block--to reduce their overall costs 
significantly. Making the D Block available for commercial use will 
also ensure there is a market for consumer-priced ``off the shelf'' 
devices that will greatly reduce device costs for public safety, in 
contrast to the current situation where specialized public safety 
devices often cost thousands of dollars per unit. One essential 
ingredient to a nationwide, interoperable network, also recommended by 
the Plan, is public funding to bring public safety's chosen partners up 
to public safety standards and to extend the network into rural areas. 
Reallocation of the D Block alone will not ensure a nationwide network. 
Funding is necessary in this regard and the National Broadband Plan's 
recommendations were based on a detailed cost model. The ability for 
the National Broadband Plan's recommendations to create a nationwide, 
interoperable public safety broadband network is a key is reason that 
the former Chair, Vice Chair and two members of the 9/11 Commission 
called the FCC's plan ``a realistic framework to move forward.''

    Question 2a. Is getting the Emergency Response Interoperability 
Center up and running a gating function for building out the public 
safety network? How do you ensure that NIST and DHS will participate 
fully in ERIC? Will that require legislation?
    Answer. The Commission recently released an order establishing 
ERIC, which is now in the initial staffing phase. The Commission is in 
the process of negotiating Memoranda of Understanding (MOUs) with both 
NIST and DHS, which should obviate the need for legislation to ensure 
their participation. We have already been engaged in close coordination 
with these Federal partners, and my staff and I look forward to working 
with our Federal partners to make ERIC a success.

    Question 2b. What happens to implementation of the public safety 
recommendations of the National Broadband Plan if Congress cannot 
appropriate $6.5 billion over the next 10-years for a new grant program 
to help construct the network?
    Answer. The bottom line is that, without significant public 
funding, the public safety broadband network will be neither nationwide 
nor fully interoperable. Reliance on commercial partnerships alone, or 
on the reallocation of the D Block to public safety, cannot guarantee 
deployment in remote areas or ensure that public safety broadband 
facilities are built to required standards for hardening, reliability 
and redundancy. The public funding program is therefore a crucial 
component of the Plan's strategy for creating the network.

    Question 2c. Do you believe the Commission currently has authority 
under the universal service provisions of the Telecommunications Act of 
1934 (as amended) to have telecommunications providers add a small 
service charge to customers' bills to help toward the funding of the 
public safety network's operations?
    Answer. The Plan recommends that Congress consider enacting 
legislation to create a funding program to support capital and 
operational expenses for the public safety broadband network. I believe 
that Congressional action is the best means of assuring that the 
Commission has a clear source of authority to put this mechanism into 
place. The public safety broadband network will thrive only if a 
sustainable and adequate public funding mechanism is established to 
support the operation, maintenance and continual evolution of the 
network.

    Question 3. My understanding is that under the National Broadband 
Plan, the over-the-air television broadcasters in certain markets will 
be provided with incentives to return some spectrum and have their 
channels moved closer together. I imagine the Commission would want to 
pack the over the air broadcast channels in as close together as the 
interference protection rules allow. If this is the case, would the 
relocation of over-the-air broadcaster's channels into a narrow band 
lead to a dramatic reduction in the amount of spectrum available for 
white space in most communities?
    Answer. The Commission is currently developing plans for beginning 
to implement the National Broadband Plan's recommendation for recovery 
of a portion of the spectrum currently used by over-the-air television 
stations. In implementing that plan, there is potential for impact on 
the amount of white space, (locally vacant, TV spectrum) that is 
available for use by unlicensed white space devices. The extent of such 
impact and how it would affect the amount of white space spectrum 
available in different communities would depend on how the spectrum 
recovery is implemented. The National Broadband Plan also recommends 
that the Commission provide additional spectrum for unlicensed devices 
on a nationwide basis; such additional spectrum could offset any 
potential unlicensed spectrum that might be reduced through changes in 
allocation and use the extant broadcast television spectrum.

    Question 4. The broadband plan urges the FCC to complete the 
necessary actions to implement the use of fixed wireless and portable 
personal devices in the broadcast white space. If Congress were to make 
the statutory changes to implement the spectrum proposal in the plan, 
how might it impact the current rules regarding the use of the 
broadcast white spaces?
    Answer. The requested statutory changes would facilitate the 
transfer of spectrum from the overthe-air television service to 
wireless broadband uses. This change could reduce the amount of TV 
white space that is available at individual locations and such a 
reduction could affect certain aspects of the TV white space rules, 
including those governing the spectrum used by fixed versus personal/
portable devices and perhaps other portions of the rules depending on 
how the spectrum recovery is implemented. Accordingly, the Commission 
may need to review its TV white space rules in light of any changes it 
makes in the spectrum that is available for over-the-air television 
once those changes are complete.

    Question 5. The FCC issued its final order in the broadcast 
television white spaces proceeding in November of 2008. A number of 
parties have asked the FCC to reconsider its order. Additionally, there 
are other open issues at the Commission that impact the use of the 
white spaces such as the database proceeding and the 700 MHz proceeding 
including questions around wireless microphones operating illegally in 
the band. The FCC order has been appealed to the courts and the court 
case has been held in abeyance until the FCC completes its 
reconsideration proceeding. I am pleased to see that your Broadband 
Agenda has indicated that you plan to issue a white spaces Opinion and 
Order in the third quarter of this year. Will you decide all open white 
spaces issues: the reconsideration, the database order and the 700 MHz 
issues no later than the third quarter of this year?
    Answer. As you indicate, there are several matters outstanding that 
affect TV white spaces, including petitions for reconsideration, 
selection of one or more database administrators and a decision on 
final rules for wireless microphones. We intend to complete our action 
on the petitions for reconsideration and wireless microphones in the 
third quarter of this year. We also expect that we would complete our 
decision on the database manager(s) in the same time-frame or shortly 
thereafter.

    Question 6. I've been a strong advocate for technology neutrality--
be it in healthcare IT, smart grid, or cybersecurity. My belief is that 
if we establish a neutral playing field it will allow many options to 
emerge. Consumers and businesses will benefit from a diversity of 
choices. I believe it is important to clearly describe the desired 
objectives of the National Broadband Plan and ensure that all segments 
of industry can compete in a technology neutral manner to meet the 
prescribed goals. It is important that policymakers refrain from 
adopting policies that pick winners and losers. The discussion around 
education software was largely focused on touting the benefits of a 
particular software business model-open source (p. 231).
    I have nothing against this particular business model, but it is 
critical that the government not prescribe which technology or software 
development business model should be adopted---either when it is a 
market actor or when it is making policy. Do you believe that 
technology neutrality is important and will this principal guide your 
communications policy decisions in implementing the National Broadband 
Plan?
    Answer. I agree that the Commission should always strive where 
possible to avoid placing its thumb on the scales to favor one 
technology choice over another. The National Broadband Plan is based on 
this same philosophy and specifically supports ``regulatory frameworks 
that are pro-competitive, transparent and technology-neutral.''

    Question 7. The use of advanced metering will contribute to our 
Nation's energy efficiency and conservation efforts. There is some 
concern, though, that information obtained from advanced metering will 
allow utilities and third parties to infer patterns from the data they 
collect of what goes on in a household over the course of a day. This 
stream of information may become another source of revenue for 
utilities and allow them to evolve their business model. There is a 
question of consumer privacy. The Telecom Act of 1996 created Section 
222 of the Communications Act on how telecom companies need to treat 
the privacy of Consumer Proprietary Network Information. Do you believe 
there should be an analogous statute created for the smart grid?
    Answer. The National Broadband Plan (NBP) recommends that consumers 
be able to access and control their own digital energy information. 
Privacy and security are critical to the success of the Smart Grid; the 
NBP stresses that ``security and privacy should be fundamental to both 
network architectures and everyday business processes.''
    The NBP recommends that states update their energy data policies, 
to include privacy and data accessibility rules for the Smart Grid. 
However, the NBP also recommends that ``if states fail to develop 
reasonable policies over the next 18 months, Congress should consider 
national legislation to cover consumer privacy and the accessibility of 
energy data.''
    Consumer Proprietary Network Information (CPNI) rules are 
principally about privacy and the protection of customer information in 
telecom. There are separate rules, such as Truth-In-Billing, that 
address the customer's rights to access his or her own data. Other 
industries, like health care, have integrated protection and 
accessibility rules. HIPAA, as an example, sets forth national rules to 
protect personal information, to ensure patients can get timely access 
to their own information, and to allow authorized third parties access 
to patient data. If Congress is going to consider national smart grid 
legislation about energy data, it would be worth considering including 
provisions for both the protection and accessibility of the data.

    Question 7a. Do you believe utilities should allow consumers to 
provide an affirmative consent before it can disclose smart meter 
information to third parties?
    Answer. Generally yes, but with exceptions. With safeguards, 
electric utilities should be able to conduct certain regulated 
activities, such as energy efficiency programs, without requiring 
individual affirmative consent for data disclosure. Imagine, for 
example, a third-party vendor that helps a utility with its energy 
efficiency programs. Today, this vendor already has to comply with the 
utility's existing data protection rules--i.e., a consumer's monthly 
energy usage data can only be used to help the utility offer energy 
efficiency products/services back to the customer. Requiring utilities 
to now get individual affirmative consent would have the unintended 
consequence of lowering the response rate to the utility's energy 
efficiency programs.
    There are a few other limited scenarios where, with the proper 
safeguards (e.g., anonymization of personal information), utilities 
should be able to disclose a subset of information gathered from smart 
meters without affirmative consent. The NBP offers examples:

        ``With reasonable privacy protections, the Federal Government 
        should be granted limited access to utility bills from homes 
        receiving Federal energy efficiency funds to better evaluate 
        the government's energy efficiency programs, such as 
        weatherization. Energy consumption data, when aggregated, can 
        be very useful to a wide variety of public policy and economics 
        researchers. States should consider how third parties might get 
        access to anonymized datasets for research purposes, with 
        strict privacy protections.''

    For most other scenarios, however, utilities should require 
affirmative consent before disclosing smart meter information to third 
parties.

    Question 8. The broadband plan says the amount of data moving 
across the Smart Grid networks is modest today but is expected to grow 
significantly over time. No one seems to have a good handle at the 
moment on the Smart Grid's future bandwidth needs. The plan makes four 
recommendations related to addressing the future spectrum needs for the 
Smart Grid. How do you see the spectrum needs for the Smart Grid 
evolving? Will it be a combination of commercial wireless spectrum for 
less secure communications and dedicated spectrum for mission critical 
communications?
    Answer. There are over 3,000 utilities in the U.S. that serve 
customers across very different topologies and regulatory regimes. 
There is not a single solution or a ``representative'' network for the 
Smart Grid. Many utilities use a mix of commercial and private networks 
in the Smart Grid, and will continue to do so.
    Although, generally speaking, electric utilities traditionally 
prefer to build and maintain private networks for mission critical 
communications, some utilities do use commercial networks for mission 
critical communications today. Commercial networks can be made secure 
and resilient, as demonstrated by their use in the Federal Government 
(DOD, DHS, etc.). For some smaller utilities, the lack of internal 
networking expertise and personnel might have driven the decision to 
use commercial facilities.
    Utilities will need greater communications across the grid, and 
many are increasingly using wireless technologies, which are often more 
cost-effective that wired facilities in reaching wide areas or 
distributed assets. These wireless networks including licensed 
commercial networks, licensed private networks, and private networks 
operating at power levels where FCC licenses are not required.
    Dedicating spectrum for the Smart Grid would have benefits and 
disadvantages. Potential benefits include: (1) providing another 
mechanism for the Federal Government to drive national interoperability 
standards and best practices of cyber-security, privacy, and consumer 
data access, (2) vendor standardization and competition, which could 
lead to lower equipment prices or more functionality, and (3) a 
possible acceleration of smart grid deployments. Risks/disadvantages to 
dedicating spectrum include: (1) possible sub-optimal use of spectrum, 
(2) fewer applications and users on commercial networks to drive down 
the cost for all users, (3) the opportunity cost to the U.S. Treasury 
of not auctioning off the spectrum to commercial broadband users, and 
(4) a near-term effect of ``freezing the market'' while companies re-
evaluate their Smart Grid technology road maps.
    Developing a Smart Grid is national policy set forth by EISA 2007, 
and the NBP recommends that the Federal Government continue to explore 
the issue of providing spectrum, recommending that ``NTIA and the FCC 
should specifically explore possibilities for coordination of Smart 
Grid use in appropriate Federal bands. Any new broadband network built 
in the identified spectrum should be required to meet standards of 
interoperability, customer data accessibility, privacy and security. 
Use of this spectrum should not be mandated, so that legacy systems are 
not stranded and that commercial, other shared networks and unlicensed 
wireless networks can be used where appropriate.''
    It's important to note that there are a variety of possible models 
that could be employed to provide spectrum to the industry, including a 
sharing of spectrum with Federal users, sharing with public safety 
networks (also recommended in the NBP), dedicating spectrum with 
specific build-out requirements, and auctioning spectrum for critical 
infrastructure uses (which includes the Smart Grid, but could also 
include natural gas and water management, among other). Market-based 
auctions pose some challenges for utilities, since approximately 30 
percent of the power is delivered to customers through non-profit 
entities (co-operatives and municipals), and even among the investor-
owned utilities, some have business model or service territory 
incompatibilities to participating in spectrum auctions.

    Question 9. In January, NIST released its Framework and Roadmap for 
Smart Grid Interoperability. There was a short section that touched on 
models for smart grid information networks. It also discussed 
technologies for standards for smart grid communications 
infrastructure. There was nothing in the broadband plan on 
communications standards issues related to the Smart Grid. For example, 
one of the debates is whether the entire Smart Grid should be IP-based. 
Do you believe the Smart Grid should be IP-based end-to-end?
    Answer. The NBP is technology-neutral and does not recommend one 
networking protocol over another for the Smart Grid. However, the NBP 
does stress the importance of open standards and uses the success of 
Internet Protocol (IP) standard as an example. The NBP notes that: 
``the NIST standards development process should continue to draw on 
lessons from the Internet. Open standards are critically important--
Internet Protocol being a prime example.''
    NIST has a Priority Action Plan (PAP) focused on the role of 
Internet Protocol (IP) in the Smart Grid. This is the proper forum for 
the architectural debates about how fast and how much IP can be 
incorporated into the Smart Grid. It is important to remember that the 
Smart Grid includes a wide variety of legacy utility communications 
systems, some of which are incompatible with IP networks.

    Question 9a. Is there a reason where there was no recommendations 
relating to Smart Grid communications standards in the broadband plan?
    Answer. Establishing and maintaining national Smart Grid standards 
is critical to the success of the Smart Grid (and is national policy 
under EISA 2007). The NBP did not offer specific recommendations to 
improve or change the NIST Smart Grid standards coordination process, 
but did stress the importance of the process and of Smart Grid 
standards. The NBP states:

        ``Standards are critical to the Smart Grid. For example, the 
        faster NIST can accelerate market convergence toward a small 
        number of appliance communications standards, the sooner 
        manufacturers can offer smart appliances that communicate with 
        the rest of the smart home. Standards will help ensure that the 
        Smart Grid is ``plug-and-play,'' encouraging innovation by 
        giving companies a large potential market for devices and 
        applications and providing customers with the ability to use 
        any of them to take advantage of the grid.''
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                        Hon. Julius Genachowski

    Question. While we work to bring new communications services to 
more Americans, New Jerseyans still lack basic TV coverage of local 
news and events. WWOR, New Jersey's only high-power commercial TV 
station, has not adequately served the people of New Jersey and is 
operating under a license that expired almost 3 years ago. When will 
the FCC be in a position to act on WWOR's renewal application and 
concerns about its local news coverage?
    Answer. As you know, a petition to deny the license renewal 
application of WWOR has been filed with the Commission. The petition 
raises important issues about both the quantity and quality of New 
Jersey specific news provided by WWOR. The petitioner recently 
submitted additional information which currently is under review in the 
Media Bureau. I hope this matter can be concluded expeditiously.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                        Hon. Julius Genachowski

    Question 1. I support the goals of the FCC's recommendations 
regarding set-top boxes but I understand that the FCC's proposal would 
unintentionally change the competitive landscape by favoring cable over 
satellite due to differences in system architecture. I am worried that 
the FCC's television set-top box proposal will have a 
disproportionately negative impact on rural residents who rely on 
satellite delivered television. Do you plan on examining that situation 
further to ensure there are no unintended consequences of harming the 
consumer?
    Answer. Yes, I agree that the Commission should consider 
differences in system architecture to ensure that consumers are not 
disadvantaged To prevent any unintended consequences, the ``Allvid'' 
Notice of Inquiry recently adopted by the Commission includes 
particular questions to assure that the Commission's eventual course of 
action does not unfairly burden any subscription video provider. 
Specifically, the Notice of Inquiry seeks comment on network-specific 
functions that the Commission would need to consider as we develop our 
proposal. In addition, the Notice invites commenters to propose 
alternate methods that would help to achieve retail availability of 
smart video devices that can access subscription video services. The 
Commission will consider these comments carefully, and I am confident 
that this proceeding will conclude with a solution that benefits all 
subscription video providers, device manufacturers, and consumers.

    Question 2. One of the recommendations in the National Broadband 
Plan is that the Federal Government should launch a National Digital 
Literacy Program that creates a Digital Literacy Corps, increase the 
capacity of digital literacy partners and create an Online Digital 
Literacy Portal. The plan cites the statistic that 22 percent of non-
adopters claim a digital literacy-related factor as their main barrier. 
The rate of broadband adoption is low in my state. In addition to the 
recommendations in the National Broadband Plan, would incentivizing 
businesses to offer digital literacy programs in low-income areas be an 
effective mechanism to increase the adoption rate of broadband?
    Answer. Digital literacy training can promote broadband adoption 
and help individuals and businesses gain the skills they need to 
compete in the 21st century economy. Private sector businesses play an 
important role in digital literacy in several ways. Businesses provide 
training to their own employees and support local and community efforts 
by creating digital literacy content and training materials, supporting 
employee volunteers who provide digital skills training to local 
community members or small businesses and providing financial 
assistance to non-profit groups who provide digital literacy training. 
These efforts can be particular effective when they include trusted 
members of the community providing training to non-adopters in 
comfortable settings and should be encouraged.

    Question 3. The plan recommended that all community colleges should 
be connected with high-speed broadband. A recent report from the 
Brookings Institution report states that, ``Community Colleges present 
enormous opportunities for meeting national and economic goals.'' My 
state is home to 23 community colleges and I couldn't agree more that 
these institutions should have improved connectivity and access to 
greater technological resources as community anchor institutions. The 
Federal Communications Commission has indicated that it would require 
around $350 million to fund broadband connections for community 
colleges. In your view, would a grant program be an effective mechanism 
to reach the goal of community college connectivity?
    Answer. As you note, the National Broadband Plan recognized the 
important role that community colleges play in preparing students for 
their place in the 21st century workforce. As the Plan explained, 
Congress should evaluate the amount of funding necessary to connect all 
public community colleges with high-speed broadband after the awarding 
of funding through the Broadband Technology Opportunities Program. 
There may be many ways, including grant programs, to successfully 
allocate and distribute additional funding that can achieve the goal of 
improving availability of high-speed broadband at Community Colleges.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Claire McCaskill to 
                        Hon. Julius Genachowski

    Question 1. The National Broadband Plan proposes to use 2,345-2,360 
MHz spectrum for the expansion of broadband wireless communications. 
That spectrum is adjacent to a band that aerospace companies use radio 
spectrum in the 2.3 GHz band for flight test telemetry. Has the FCC 
reviewed how test flights will be affected by this change? Can you 
provide any assurance that broadband wireless in the adjacent band to 
will not cause interference to flight test telemetry?
    Answer. FCC staff issued a public notice on April 2, 2010, inviting 
comment on the specific draft rules, including both the technical 
standards and interference resolution mechanisms to protect adjacent 
band services. The FCC staff has thoroughly analyzed the record, met 
numerous times with commercial Aeronautical Mobile Telemetry (AMT) 
stakeholders, and with the National Telecommunication and Information 
Administration (NTIA) which represents Federal AMT stakeholders. I am 
committed to working with our counterparts at NTIA to find a solution 
that adequately protects AMT operations.

    Question 2. The biggest benefit that I see for broadband is the 
economic development and job growth that it can bring. Wiring towns and 
building infrastructure is paramount to encourage growth in communities 
and is an investment that will pay off in the future. It will also make 
up more competitive with the rest of the world.
    The Plan talks a lot about public-private partnerships to encourage 
economic development and job growth. That sounds great and I like the 
concept in theory--private companies have invested $60 billion in 
broadband and have created hundreds of thousands of jobs, including 
tens of thousands in Missouri. It is clear that we can't have real 
growth without private investment buying into the Plan. But how do you 
envision this working? What sort of incentive do private companies have 
to enter into arrangements like this? Have you gotten interest from 
private companies? And are you concerned about overlap with existing 
programs and companies?
    Answer. Private sector cooperation and investment are important for 
America to achieve continued growth and innovation. The importance of 
the private sector is one reason why the Plan emphasizes the benefits 
of creating public-private partnerships, particularly in the section 
dealing with economic opportunity. To date, the private sector has 
shown a willingness to collaborate with the Commission and other public 
institutions in these initiatives. Specifically, the Small Business 
Association (SBA) and its volunteer resource partner, SCORE, recently 
announced a partnership with 10 leading technology firms to provide 
digital literacy tools to small businesses across the country, as 
recommended in the Broadband Plan. The goal of this partnership is to 
leverage existing infrastructure and programs SBA and SCORE have in 
place, as well as leveraging existing expertise and resources that the 
private sector firms have in place. In this way, the Commission can 
seek to bring more resources to a broader array of companies and 
communities, while not duplicating past efforts or wasting resources. 
Moreover, the private sector firms stand to gain exposure for their 
products, a reputation for dedicated involvement in local communities, 
and a broad array of potential new customers as more businesses take 
advantage of broadband and its associated tools and applications.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Amy Klobuchar to 
                        Hon. Julius Genachowski

    Question 1. One of the most discussed aspects of the plan is the 
transition of spectrum from broadcast television to wireless broadband. 
Many of my constituents, especially those in rural areas, are worried 
that they may lose access to over-the-air television signals. If the 
broadband plan recommendations go through, what will this mean for 
consumers' ability to access broadcast television?
    Answer. If the broadband plan's recommendations for the broadcast 
TV spectrum are implemented, consumers will continue to access 
broadcast television using the same receivers and antennas that they 
are currently using. In some cases, depending on how a market is 
repacked, viewers might need to obtain new antennas in cases where 
local stations would: (1) re-locate to a new transmitter at a site 
farther away or (2) move to low VHF channels (channels 2-6) and a 
viewer's antenna does not already include a capability for effective 
reception of low VHF signals.
    Broadcasters will have the option of choosing how to best serve 
their viewers, including strengthening their financial basis by 
reducing the amount of spectrum they are using while continuing to 
provide their own unique programming content over the air by sharing a 
channel with another station. Channel sharing by two or more stations 
would not require consumers to use additional equipment; the multiple 
stations would be received as multicast streams with existing 
receivers. Viewers would, of course, need to re-scan their digital 
television receivers and converter boxes to be able to view stations on 
their new channels after the channel re-packing was completed. We 
anticipate that various analyses will need to be performed and 
considered through rule making. However, it is reasonable to anticipate 
that few, if any, changes in the TV allotments will be needed in most 
rural areas.

    Question 1a. While it is clear that wireless broadband needs 
additional capacity, how can we be sure that broadcast television 
remains viable?
    Answer. Participation in the channel sharing program would be 
voluntary, as would any decision by a station to vacate its channel 
pursuant to an incentive auction. In addition, we will make sure that 
there are sufficient spectrum resources for broadcast stations to 
continue to operate in a viable manner. We also intend to work with the 
broadcast television industry throughout the spectrum recovery process 
and to address their concerns in the various actions that we will take.

    Question 2. Several billion dollars was recently spent on the 
converter box program to ensure that no viewers were disenfranchised as 
a result of the digital transition. Will they still be able to access 
over-the-air television and get a strong signal?
    Answer. The digital television converter boxes would continue to 
function to provide service from over-the-air signals after the 
broadcast TV spectrum is re-packed. The available television stations 
may be on different channels in some cases, but this could be handled 
through rescanning of the existing converter boxes (or TV receivers) 
and consumer education. Signal strengths would only be affected in 
cases where a broadcast station relocated its transmitter and/or 
combined to share a channel with another station whose service area was 
different from its own; such cases could result in an increase or a 
decrease in service area, or a change in service area with little to no 
net change in coverage area. Any potential impact on consumer reception 
of TV signals will need to be considered carefully through rule making 
and minimized to the extent possible.

    Question 2a. Will they have to purchase new equipment or antennas?
    Answer. Consumers will generally not need to purchase any new 
equipment to continue to receive television signals off-the-air if 
stations are re-packed to new channels. As indicated above, a new 
antenna might be needed if a station in a viewer's market were to 
relocate to a channel in the low-VHF range (channels 2-6) and the 
viewer's antenna did not already include the capability for effective 
reception of those channels.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                        Hon. Julius Genachowski

    Question 1. Mr. Genachowski, I am pleased that the National 
Broadband Plan includes recommendations for tackling the digital divide 
facing our Nation's Tribal lands, where less than 10 percent of 
residents have access to broadband.
    I know you understand the severity of this problem, and I want to 
thank you for your leadership in addressing this challenge. I strongly 
support the Broadband Plan's recommendation to establish an Office of 
Tribal Government Affairs at the FCC to improve cooperation and 
coordination with Tribal leaders on a government to government basis. I 
also support efforts to transition the Universal Service Fund for 
telephone to a ``Connect America Fund'' for broadband. However, when 
transitioning to a Connect America Fund, how will the Commission ensure 
that this reform effort addresses the unique connectivity needs of 
Indian Country, where the current Universal Service Fund has not yet 
achieved universal telephone service?
    Answer. The National Broadband Plan contains several 
recommendations to address the disparity existing in Indian Country. It 
gives us a roadmap for increasing broadband deployment and adoption in 
unserved or underserved areas, including isolated Tribal lands. The 
availability of broadband service also means the availability of 
quality telephone service in these areas.
    The Commission has taken the first critical step by beginning the 
process of converting the Universal Service Fund over time to support 
broadband, which will free up more resources to build modern 
communications networks including on tribal lands. On April 21, 2010, 
the Commission adopted a notice of inquiry and notice of proposed 
rulemaking to examine near and longer-term processes to target funding 
toward new deployment of broadband networks in unserved areas while 
considering final rules to implement a new Connect America Fund that 
will efficiently provide universal service support for broadband and 
voice services. The Commission looks forward to receiving substantial 
input for this record from tribal governments, so Commission staff can 
understand and account for unique circumstances present on tribal 
lands.
    Also within the second quarter of this year, the Commission intends 
to launch the new Office of Native American Affairs and the Native 
Nations Broadband Task Force. These initiatives should allow more 
efficient government-to-government relations with tribal governments, 
and the means to address more effectively the full range of Native 
American issues. The National Broadband Plan also recommends creating a 
tribal seat on both the Federal-State Joint Board on Universal Service 
and on the Universal Service Administrative Company board of directors, 
and the creation of a Federal-Tribal Broadband Initiative consisting of 
tribal leaders and officials from across all Federal agencies. I 
strongly support all of these initiatives, and will work hard to put 
them in place to enhance government-to-government interaction with 
tribal bodies.
    The remote nature of some tribal lands has prevented the residents 
of those areas from gaining even basic telecommunications services. The 
Commission needs better data on these regions, so it plans to issue a 
broadband data rulemaking proceeding toward the end of this year, and 
coordinate with Native American governments to enhance data collection 
on tribal lands. The Commission also intends to issue a spectrum on 
tribal lands rulemaking proceeding during the fourth quarter of this 
year to examine increasing mobile opportunities in Native American 
communities, and follow with a rural health care reform rulemaking 
proceeding with an eye toward bringing access to world-class healthcare 
for tribal and remote regions.
    Throughout the Commission's activities implementing the National 
Broadband Plan, I intend to keep a watchful eye on how our actions 
benefit the most remote and unserved regions. I look forward to 
expanded and enhanced coordination with tribal governments, and full 
participation from tribal representatives and stakeholders in this 
major effort, so we can be assured of addressing the disparity in 
communications services that has existed on many tribal lands.

    Question 1a. What resources or funding would the proposed ``Tribal 
Broadband Fund'' need to meet the goal of universal broadband service 
on our Nation's Tribal lands?
    Answer. Given the paucity of data regarding broadband deployment 
and adoption on Tribal lands, we do not yet have a clear sense of the 
required funding levels for the Tribal Broadband Fund. Submissions from 
NCAI and other Tribal entities recommend establishing the Tribal 
Broadband Fund on the level of $310 million. However, the full cost of 
deploying broadband service to all Tribal lands has been estimated to 
range anywhere between $1.2 billion to $4.6 billion. The Commission 
will work with other Federal departments and agencies to improve data-
collection on Tribal lands so that we can develop an accurate 
assessment regarding the funding needs of Indian Country.

    Question 2. The National Broadband Plan recommends that the Rural 
Utility Service (RUS) make a priority of issuing Smart Grid loans to 
rural electric cooperatives. These rural cooperatives operate 42 
percent of our Nation's distribution infrastructure. The RUS has its 
roots in President Franklin Roosevelt's rural electrification program 
of the 1940s. Given that the agency today already supports electric and 
broadband service in rural America, having RUS support Smart Grid 
deployment makes sense to me. Could you expand on the National 
Broadband Plan's brief recommendation number 12.10 regarding RUS loans 
for Smart Grid?
    Answer. As a major lender to rural electric cooperatives, the Rural 
Utility Service (RUS) has an opportunity to bring the benefits of the 
Smart Grid to rural America. By some statistics, rural electric 
cooperatives are ahead in selected Smart Grid applications. Smart 
Meters are an example; it became cost effective to automate meter 
reading sooner in rural communities, where long distances made it more 
difficult or costly to read meters. Advanced metering penetration 
within rural electric cooperatives has grown quickly, having increased 
from 3.8 percent in 2006 to 16.4 percent in 2008. In other areas, 
however, rural electric cooperatives reportedly lag in their adoption 
of Smart Grid applications compared to larger investor-owned utilities. 
In this respect, RUS has an opportunity to help rural America catch up.
    In FY 2009, RUS disbursed 209 electric loans and loan guarantees 
totaling $6.6 billion; the total RUS electric loan portfolio was over 
$40 billion. Although the RUS has not provided the NBP exact numbers, 
the majority of these loans were for traditional grid improvements, not 
Smart Grid. RUS has the opportunity to fund more deployments of Smart 
Grid, and to encourage adoption of best practices in cyber-security, 
privacy, and data accessibility.
    In a few cases, electric cooperatives are building broadband 
networks to offer retail broadband services in addition to serving as a 
smart grid network. The NBP encourages RUS to continue to fund these 
innovative projects.

    Question 3. The National Broadband Plan makes clear the importance 
of competition in broadband markets. The Plan highlights how wireless 
broadband providers may emerge as important competitors to wireline and 
cable broadband providers. However, some of the largest providers of 
DSL and fiber to the home broadband also have a major presence in the 
mobile broadband market. How will the FCC help ensure that consumers 
benefit from robust competition in broadband markets that lowers prices 
and encourages investment in new technologies?
    Answer. The National Broadband Plan recognizes that the Commission 
will have to pay particular attention to its competition policies. For 
instance, the Plan recommended and the Commission recently embarked on 
policy changes regarding mobile roaming, to allow smaller competitors 
the ability to compete by roaming on larger carriers' networks in some 
instances. Similarly, the Commission plans to review its wholesale 
competition policies to ensure that investment incentives are balanced 
against the need to ensure competition for broadband services.

    Question 3a. How will rural Americans benefit from lower broadband 
prices and better service if where they live is served by just one 
provider?
    Answer. While some areas may not see as much competition as others, 
many of the proposals we have advanced would lower the costs for new 
entrants to deploy networks further into rural America. Additionally, 
the Commission has proposed changes to the way in which the universal 
service program will disburse support for broadband networks in rural 
and high-cost areas of the country. Such changes would include speed 
and service quality standards.

    Question 3b. How will the FCC increase transparency in broadband 
markets for consumers with respect to data on availability and price of 
broadband service, as briefly discussed in the Plan's recommendation 
4.2?
    Answer. The Plan sets forth recommendations to increase 
transparency in the retail broadband market. Doing so should encourage 
broadband service providers to deliver better value to consumers 
through better services.
    In particular, the Plan includes four recommendations to increase 
transparency:

   The Commission should, in coordination with the National 
        Institute of Standards and Technology (NIST), establish 
        technical broadband measurement standards and methodology and a 
        process for updating them. The FCC should also encourage the 
        formation of a partnership of industry and consumer groups to 
        provide input on these standards and this methodology.

   The Commission should continue its efforts to measure and 
        publish data on actual performance of fixed broadband services, 
        and should publish a formal report and make the data available 
        online.

   The Commission should issue a Notice of Proposed Rulemaking 
        to determine appropriate disclosure obligations for broadband 
        service providers, including disclosure obligations related to 
        service performance. These obligations should include simple 
        and clear data that a ``reasonable consumer'' can understand, 
        while providing more detailed disclosure for more interested 
        parties such as tech-savvy consumers, software developers and 
        entrepreneurs designing products for the network.

   The Commission should develop broadband performance 
        standards for mobile services, multiunit buildings and small 
        business users.

    The Commission has already begun implementing these recommendations 
and has launched ``The Consumer Broadband Test'' (currently in beta) to 
enable consumers receives real-time information about the quality of 
their broadband connections. Additional information on the Consumer 
Broadband Test, including the ability for consumers to test their 
broadband speed, is available at http://www.broad
band.gov/qualitytest/about/.
    Moreover, the Commission's Broadband Action Agenda indicates that 
the Commission will consider a Notice of Proposed Rulemaking to 
implement the Plan's transparency and disclosure recommendations in the 
third or fourth quarter of 2010.

    Question 4. Rural wireless providers in my state tell me that 
customers cannot always use their smart phone's mobile broadband 
features when roaming outside their home provider's coverage area. This 
is due to the difficulty of companies always coming to an agreement on 
reciprocal data roaming arrangements. How will the FCC address data 
roaming issues--discussed in the Plan's recommendation number 4.11--so 
that these rural wireless companies can fully serve their customers, 
who often live in remote areas?
    Answer. In April, the FCC sought additional comment on whether to 
extend automatic roaming obligations to mobile data services. Comments 
are due June 14, 2010, and reply comments are due July 12, 2010. I look 
forward to reviewing the record and working with my fellow 
Commissioners to determine, in an expeditious manner, the path forward 
that best serves American consumers with a focus on the importance of 
data roaming for rural Americans.

    Question 5. The National Broadband Plan highlights how set top 
boxes can become more effective gateways to the Internet, especially 
for those who may have cable or satellite television but no computer at 
home.
    However, I have heard some concerns from satellite television 
providers that the set top box technology they use is not as suitable 
as similar cable devices for becoming a new, standardized gateway to 
the Internet. This is potentially more important for rural Americans 
who live in areas served only by satellite TV. How will the FCC address 
this concern when moving forward with efforts to ``open up'' TV set top 
boxes as a way to promote Internet access for more Americans?
    Answer. I understand your concerns and the Notice of Inquiry 
recently adopted by the Commission regarding devices used by consumers 
to select and enjoy video programming is designed to ensure that our 
actions serve all Americans who subscribe to television services. The 
Commission's goal is to enable a cable subscriber in Albuquerque to 
move to Pie Town (or any other area of New Mexico) and subscribe to 
satellite service using the same smart video device. Specific questions 
are included in the Notice of Inquiry to assure that the Commission's 
course of action does not unfairly burden any subscription video 
provider based on its delivery method and system architecture. In 
particular, the Notice of Inquiry seeks comment on network-specific 
functions that the Commission would need to consider as we develop our 
proposal. The Notice also invites commenters to propose alternate 
methods that would help us achieve retail availability of smart video 
devices that can access subscription video services. The Commission 
will consider these comments carefully, and I am confident that this 
proceeding will conclude with a solution that benefits all subscription 
video providers, device manufacturers, and consumers.

    Question 6. Chairman Genachowski, everyone seems to agree that 
spectrum is a scarce and valuable resource that we must use wisely to 
allow consumers to benefit from current and new technologies, meet the 
needs of public safety agencies, and preserve our national defense 
capabilities. In the FCC's efforts to promote more efficient use of 
limited spectrum resources, how will the agency protect the quality and 
utility of those spectrum bands that may become more crowded in the 
future?
    Answer. The manner in which spectrum is allocated, licensed (or 
unlicensed) and made available for use, and how interference is 
defined, disputes are adjudicated, and band-sharing is administered, 
will have a profound impact on how the wireless marketplace develops. 
The Commission is careful to evaluate technical considerations, 
including reducing the potential for interference, prior to allocating 
or licensing spectrum. Commission staff works closely with Federal 
partners, commercial licensees and industry to identify and address 
concerns--and corresponding solutions--in advance. We support measures 
that promote the efficient use of spectrum and seek to take advantage 
of technical advancements, such as dynamic spectrum access. We will 
continue to work closely with Federal partners, licensees, and 
unlicensed users and consumers to determine what will work best.

    Question 6a. For example, how will the FCC ensure that new mobile 
technologies do not interfere with satellite radio service, which 
relies on sensitive antennae for picking up distant signals?
    Answer. As you may be aware, Sirius-XM asserts that mobile devices 
transmitting continuous video from a vehicle in the wireless 
communication service (WCS) spectrum will cause harmful interference to 
satellite radio reception in nearby vehicles. Conversely, the WCS 
industry is concerned that unnecessarily conservative technical 
constraints will impede its ability to effectively provide mobile 
video, data, and voice service to the public.
    The FCC is sensitive to the importance of maintaining the quality 
and service levels of satellite radio. Accordingly, the stringent rules 
the FCC engineering staff is recommending are designed to prevent 
harmful interference to the satellite radio service and quickly remedy 
interference if it should occur. Recently, a public field test was 
performed by the trade association representing the majority of WCS 
licensees (WCS Coalition). In that test, a device representative of 
that which would be sold to consumers was used to transmit data at 
rates that would support file transfers or video uploads from the user 
device. Other vehicles equipped with Sirius-XM radios drove or parked 
next to the WCS-equipped vehicle. Sirius-XM participated in this 
demonstration and it was open to the public and was witnessed by about 
a dozen FCC engineering staff. Interference received by SDARS receivers 
under this demonstration was insufficient to cause the loss of 
satellite radio signal for more than an inconsequential interval.
    To ensure the most complete and specific participation and analysis 
possible, Commission staff put on public notice for comment by the 
parties and the public detailed proposed rules that were informed by 
the observations at the demonstration. The proposed rules include 
technical and operational restrictions for WCS and a requirement that 
WCS licensees cooperate in good faith in the selection and use of new 
stationsites and new frequencies to reduce interference and make the 
most effective use of the authorized facilities. Under the proposed 
rules, licensees of stations suffering or causing harmful interference 
must cooperate in good faith and resolve such problems by mutually 
satisfactory arrangements. We will be further guided by the specific 
information and arguments submitted in response to those proposed rules 
to ensure the continued reception of satellite radio service by the 
public.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Mark Warner to 
                        Hon. Julius Genachowski

    Question 1. There has been a great deal of discussion about the 
possible reclassification of broadband services under Title II of the 
Communications Act. I recognize the FCC is considering multiple options 
in response to the ruling and I think it is important for consumers to 
be able to continue enjoying all the Internet has to offer. Do you 
think it is possible to institute a technology-neutral regulatory 
framework that includes nondiscrimination protections and provides for 
reasonable network management?
    Answer. Yes, but the Commission must carefully consider the legal 
framework on which it implements those protections. The decision of the 
United States Court of Appeals for the District of Columbia Circuit in 
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), casts serious 
doubt on whether the legal framework the Commission chose for broadband 
Internet services nearly a decade ago is adequate to achieve core 
broadband policies, which prior Commissions thought they had legal 
authority to implement. To confront this challenge, I have shared with 
my fellow Commissioners a draft Notice of Inquiry for their 
consideration at the Commission's June 17 Open Meeting. This Notice 
would initiate an agency proceeding to seek public comment on how the 
Commission should best address the challenge that Comcast has handed 
us. It would seek comment on all options, and invite any ideas for how 
the Commission should proceed, including: maintaining the current 
``information service'' classification of services such as cable modem 
and DSL Internet access; classifying broadband Internet connectivity 
service as a ``telecommunications service'' to which all the 
requirements of Title II of the Communications Act would apply; and a 
``third way''--similar to the highly successful approach that has been 
used for cell phone services since 1993--under which the Commission 
would identify the Internet connectivity service that is offered as 
part of wired broadband Internet service as a telecommunications 
service and forbear from applying all provisions of Title II other than 
the small number that are needed to implement fundamental universal 
service, competition, and consumer protection policies. As you know, 
Chairmen Rockefeller, Waxman, Kerry, and Boucher have announced they 
will start a process to develop proposals to update the Communications 
Act. I welcome that process, and the Commission stands ready to serve 
as a resource to Congress as it considers legislative changes in this 
area
    Specifically on open Internet issues, we will continue to work with 
stakeholders to find the best approach to preserving the open Internet, 
and Commission staff is currently reviewing the tens of thousands of 
comments in the Open Internet proceeding. We look forward to reviewing 
the responses generated by the Notice of Inquiry on our legal framework 
for broadband as well.

    Question 2. Is it possible to accomplish this under the provisions 
of the 1996 Act or have we come to a point where Congress should start 
considering updating telecommunications law to create a better system 
that incents business development, provides for reasonable network 
management--where like forms of traffic are treated similarly--and also 
maintains open access to the Internet for consumers?
    Answer. As you know, Chairmen Rockefeller, Waxman, Kerry, and 
Boucher have announced they will start a process to develop proposals 
to update the Communications Act. I welcome that process, and any new 
ideas that others may propose to address this issue, and the Commission 
stands ready to serve as a resource to Congress as it considers 
legislative changes in this area.

    Question 3. Although I have always believed all Americans should 
have access to broadband, I'm also concerned about broadband 
affordability. Commerce Department data shows that while the broadband 
adoption rate is just 64 percent, availability is much higher--95 
percent of U.S. households have access to broadband. Do you think the 
plan does enough to provide affordable service to Americans? Is it 
enough to just expand the existing Lifeline program and to build out 
more services?
    Answer. The National Broadband Plan recommends significant changes 
be made to the Lifeline and Link Up universal service low-income 
programs that would greatly enhance broadband affordability. Currently, 
Lifeline discounts offset eligible low-income consumers' recurring 
monthly telephone charges, while Link Up discounts reduce eligible low-
income consumers' one-time telephone connection/installation charges. 
If both Lifeline and Link Up discounts are expanded to apply to service 
packages that include broadband, as the National Broadband Plan 
recommends, eligible low-income consumers would be eligible for 
discounts for both recurring monthly charges and installation charges 
for broadband service. Specifically, the National Broadband Plan 
recommends that: (1) the Commission and states should require eligible 
telecommunications carriers to permit Lifeline customers to apply 
Lifeline discounts to any service or package that includes basic voice 
telephone service; (2) the Commission should integrate the expanded 
Lifeline and Link Up programs with other state and local e-government 
efforts; and (3) the Commission should facilitate pilot programs that 
will produce actionable information to implement the most efficient and 
effective long-term broadband support mechanism.

    Question 3a. Completing the infrastructure build out is very 
important to me, but should we be thinking more innovatively in terms 
of long-term service affordability?
    Answer. The National Broadband Plan recommends expanding Lifeline 
discounts--which currently offset eligible low-income consumers' 
recurring, monthly telephone charges--to include discounts for service 
packages that include broadband. This expansion of Lifeline discounts 
to broadband offerings, if adopted by the Commission, would help ensure 
that broadband service is affordable on an ongoing basis to eligible 
low-income consumers. Additionally, the National Broadband Plan 
recommends that the Commission integrate the expanded Lifeline program 
with other state and local e-government efforts which may provide low-
income consumers with additional ongoing broadband discounts.

    Question 4. As a former Governor who helped bring more broadband to 
Virginia, the issue of improving rural coverage is a priority for me. 
Coverage has improved in rural Virginia over the last 10 years but the 
broadband plan does not appear to address the dead spot issue, which is 
a huge investment barrier for wireless carriers. What should we be 
doing in rural areas with spotty coverage, particularly given the 
problem in using and sharing data service? These spotty areas normally 
have lower tier data speeds, not up to par with those available in 
urban areas.
    Answer. I think that there area number of steps that we can take to 
address these issues in rural areas. Rural areas often present special 
and unique challenges due to environmental or other factors, such as 
access issues, or topography. Often the biggest challenge in deploying 
networks in rural areas is cost, due to greater distance between 
facilities and very low population density over which to spread the 
cost of buildout.
    The Commission has already put in place two initiatives that should 
provide more information regarding the scope of ``spotty service'' and 
``dead spots'' or ``dead zones'' with respect to broadband services. 
The Consumer Broadband Test (Beta) and the Broadband Dead Zone 
Reporting Form are now available via the Commission's broadband 
website. The purpose of the Consumer Broadband Test (Beta) is to give 
consumers and the Commission additional information about the quality 
of their broadband connections and to create awareness about the 
importance of broadband quality in accessing content and services over 
the Internet. The Commission will be able to use the data collected 
from the Consumer Broadband Test (Beta), along with submitted street 
addresses, to analyze broadband quality and availability on a 
geographic basis across the United States.
    Additionally, consumers have the ability to report dead zones 
through the Broadband Dead Zone Reporting Form, which provides 
interested parties with the opportunity to voluntarily participate in 
the FCC's effort to pinpoint areas in the United States where Americans 
are unserved or underserved by broadband access.
    The National Broadband Plan also recommends spectrum access models 
that could be beneficial to rural deployment, including a new 
contiguous band for unlicensed services. Just as rural WISPs have been 
able to successfully deploy affordable Wi-Fi networks in their 
communities, more unlicensed spectrum may allow for greater bandwidth 
and coverage using similar models. Also, the Plan recommends the 
creation of a Mobility Fund to provide one-time support for deployment 
of 3G networks, to bring all states to a minimum level of 3G (or 
better) mobile service availability.
    In addition, the Plan recommends a number of steps to make sure 
sufficient microwave spectrum is available to help meet current and 
future needs for backhaul. One of the factors affecting the cost of 
rural buildout is the cost of backhaul to carry traffic between 
facilities. Rural carriers in particular are making increasing use of 
microwave links for backhaul. The Plan recommends revising the 
Commission's rules to allow for spectrum sharing among various point-
to-point services where technologically feasible in order to increase 
the amount of spectrum available for backhaul by facilitating the 
efficient use of spectrum by multiple, compatible users. Further, the 
plan recommends revision of the technical rules for microwave services 
to allow increased flexibility, for example by modifying minimum 
throughput rules to allow for modulation techniques that would increase 
range. While I am heartened by an increasing number of technological 
solutions to increase the deployment of broadband and the quality of 
that deployment in rural areas, it is critically important that we 
pursue all possible avenues to facilitate quality broadband service in 
rural areas.

    Question 4a. The plan gives the government 10 more years in which 
to devise a plan to build a public safety network. Can we be more 
aggressive in deploying this much-needed network?
    Answer. The Commission has begun implementing the Plan's 
comprehensive strategy for building out a nationwide interoperable 
public safety wireless broadband network. We recently established the 
Emergency Response Interoperability Center (ERIC) and the Commission 
currently has under consideration a waiver order that would enable 
early deployments in the public safety broadband spectrum. In upcoming 
months, the Commission will undertake a series of rulemakings that will 
address roaming and priority access, auction of the D Block, and other 
elements of the Plan's comprehensive strategy. The Commission is 
committed to following the aggressive schedule we have set to ensure 
that our Nation's first responders soon have the nationwide network 
they deserve.

    Question 4b. Are you optimistic that we will have a nationwide 
interoperability standard in place before we try to build out a 
nationwide system? It seems like this is a prerequisite if we want to 
make sure first responders are able to communicate with one another, 
but it's also disappointing that 9 years after 9/11 we still have not 
worked out a standard or built the network.
    Answer. The Commission has already taken important steps to promote 
interoperability on the public safety broadband network. Under my 
proposed Order addressing the public safety broadband waivers, the 
Commission will require states and localities engaged in early 
deployments to use a common air interface and to adhere to an initial 
set of interoperability requirements developed by the recently 
established ERIC. These requirements will be further refined as ERIC 
develops a more detailed interoperability framework, which will ensure 
seamless communication on the nationwide network from the start of its 
development.

    Question 5. Another issue that has been raised by public safety 
groups relates to priority access to the network in times of crisis. 
Some in the public safety community seem to be very concerned that 
under the FCC's plan, priority access may not be provided when it is 
needed most. How would you respond to these concerns?
    Answer. Under the Plan, public safety agencies will have full use 
of the 10 MHz of dedicated 700 MHz spectrum that has already been 
allocated for public safety broadband services. This spectrum will form 
the foundation of the nationwide public safety broadband network, and 
will always be available to public safety for its highest-priority 
communications. In addition, the Commission will soon commence a 
rulemaking to ensure that public safety users can obtain quick and 
reliable roaming and priority access to commercial broadband networks 
in major emergencies where additional capacity may be required. 
Commercial 4G technologies can support a variety of newer forms of 
priority access that can fully meet public safety needs in such 
emergencies, far beyond anything possible on traditional circuit-
switched networks that offer Wireless Priority Service. These 4G 
technologies also can enable public safety users to prioritize their 
own traffic more effectively, to ensure that the most vital 
communications are given the highest priority.

    Question 6. The FCC also included some significant language in the 
broadband plan regarding the need to fulfill one element of the 1996 
Act by providing greater competition in the set-top box market. Why do 
you think it is important to the deployment and use of broadband?
    Answer. Innovation in the communications device and application 
market has driven Internet connectivity and use since the days of dial-
up access. Since the early 1990s, computer hardware and software have 
become more sophisticated and capable of handling higher data rates and 
web browsers have provided more intuitive user interfaces, both of 
which have led consumers to subscribe to Internet services and use 
increasing amounts of data. More recently, innovative mobile devices 
have increased the adoption and use of wireless broadband. Increased 
competition in the set-top box market will lead to innovative internet-
connected devices that consumers can connect to their televisions, thus 
encouraging further adoption and use of broadband. Indeed, consumer 
demand for online video already is beginning to increase, and consumers 
are showing interest in devices that can access that video over a 
broadband connection. For example, Netflix recently reported that 55 
percent of its 14 million subscribers streamed more than 15 minutes of 
a movie or television show in the first quarter of 2010, up from 36 
percent last year--each of those subscribers accesses that video over a 
broadband connection. While these numbers are encouraging, they pale in 
comparison to the more than 95 million households that subscribe to 
multichannel video services. Unfortunately, a combination of technical 
and economic factors has discouraged competition in the subscription 
video device market, which makes it difficult for companies to 
introduce competitive innovative video devices that appeal to those 95 
million households. If the Commission can encourage retail competition 
for devices that can access subscription multichannel video services, 
device manufacturers will begin to offer retail products that integrate 
traditional and online video content. Consumers who purchase those 
devices specifically for the subscription video also will want to 
access the full array of services that their devices can provide, which 
will encourage broadband adoption and use.

    Question 7. Intellectual property protections do not appear to be 
clearly discussed in the broadband plan. Does the FCC intend to look at 
these issues and how might these issues intersect with privacy concerns 
and ISP content management or network management issues?
    Answer. Under the Communications Act, the FCC has a limited role 
with respect to intellectual property policy, but we recognize that our 
actions can affect the transmission of intellectual property over 
communications networks. Our rules must respect the careful balance 
Congress has created between creating strong incentives for creators to 
create and disseminate their works online, and promoting the lawful use 
of copyrighted works and protecting consumers' privacy rights. For 
example, Open Internet principles only apply to lawful content, 
applications, and services--not to activities like unlawful 
distribution of copyrighted works, which has serious economic 
consequences. The enforcement of copyright and other laws and the 
obligations of network openness subject to reasonable network 
management can and must co-exist.

    Question 8. The plan lays out an aggressive timeline for the 
spectrum components. How do you intend to adhere to the timelines you 
laid out and when do you expect to complete the final rules for TV 
white space devices?
    Answer. We are currently taking the steps necessary to prepare a 
decision on the white space petitions for reconsiderations this summer. 
That action, which will complete our rules for TV white space devices, 
is part of our Broadband Action Agenda plan.

    Question 8a. Are you open to making changes to those rules which 
would provide more flexibility for rural broadband applications, such 
as higher power limits?
    Answer. We are looking at all possibilities for providing more 
flexibility for rural broadband applications, including the option of 
allowing increased power limits that may facilitate service in rural 
areas.

    Question 8b. Can this happen within the existing timeline?
    Answer. We recognize that the timelines laid out in the NBP are 
aggressive, and we will need the support of the full Commission, as 
well as Congress and other Federal, state and local agencies, and 
industry, in order to meet those deadlines.

    Question 9. Regulatory certainty and regulatory flexibility are 
paradoxical concepts for entrepreneurs, but they are both critically 
important to the development of new technologies. What kind of 
assurance can you provide to entrepreneurs and investors who are 
looking to the FCC to carry out a pro-innovation agenda? For example, 
will there be increased opportunities for new dynamic spectrum access 
technologies and ``smart'' radios or other new technologies?
    Answer. It is clearly apparent to all of us that the increasing 
demands for a finite amount of spectrum will necessitate ever more 
efficient ways to utilize spectrum, which will have to include new 
techniques, some already developing, some in development, and some yet 
to be thought of. Obvious among these is spectrum sharing by compatible 
devices or services, and fundamental to many such arrangements would be 
the utilization of ``smart'' radios, ``smart'' antennas and other 
``opportunistic'' devices and technologies that can provide for 
instantaneous spectrum access where and when it is determined to be 
unused and available at any moment in time at a particular location and 
over a given transmission path. Nearly 10 years ago, the Commission 
recognized this direction in modifying its equipment rules to 
accommodate the earliest versions of software radios. More recently, 
developments of these technologies was fundamental to our adoption of 
new rules to open the Television White Spaces to new devices. We remain 
committed to continuing in this direction as these technologies evolve 
and made this is an important element of the National Broadband Plan.
    We have already publicly committed to initiating a proceeding later 
this year to look further into ways of increasing opportunities for 
opportunistic use of spectrum. Initial ideas in this area include 
identifying frequency bands that could be used for innovation in 
cognitive technologies such as spectrum sensing and ``smart'' radios 
and examining ways to expand the use of geo-location databases to 
identify available spectrum indifferent frequency bands. In conducting 
this future proceeding, we are committed to working with the industry, 
including entrepreneurs, to strike the right balance between providing 
a level of certainty and allowing for innovation and flexibility to 
allow nascent technologies to flourish, while at the same time 
recognizing and protecting the services provided to consumers by 
incumbent operators and devices.

    Question 10. In my experience, spectrum allocation debates can take 
a very long time to resolve. If broadcasters choose not to voluntarily 
relinquish spectrum, have you looked into alternative regulatory 
options such as spectrum sharing?
    Which kinds of alternatives are you considering and how will the 
Commission balance the interests and expectations of current spectrum 
users with the demands of consumers and the emergence of new 
technologies?
    How are you planning to facilitate or rely on negotiated solutions 
among the interested parties?
    Answer. For the Plan to work, we don't need all, or even most 
licensees to voluntarily reducing use of UHF spectrum by going off the 
air, channel sharing or moving to the VHF band. If a limited number of 
broadcasters in a limited number of markets relinquish UHF spectrum, 
our staff believes we can free up a very significant amount of 
bandwidth. I believe, and the staff at the FCC believes, that a 
voluntary approach will work. We do not believe that it will come to 
the point where we have to examine other mechanisms.
    To the second part of the question, one attractive feature of the 
voluntary approach is that it gives broadcasters additional financing 
options, which could help fund production of local news and other 
community-based programming, and/or investment in advanced broadcast 
technologies that would allow broadcasters to take advantage of 
emerging mobile and compression technologies.
    To the third part of the question, transparent bidding open to all 
potentially interested parties is likely to find a better solution than 
deal-making that is limited to self-selected parties, which often are 
forced to act with less information than they would have in an auction. 
Direct negotiations among parties may have a role with respect to 
technical issues such as interference or coordination.

    Question 11. Do you believe that the Commission should expand on 
Recommendation 5.5 in the plan? Does the FCC support the spectrum 
relocation process improvements outlined in legislation before 
Congress, namely H.R. 3019?
    Answer. Recommendation 5.5 of the National Broadband Plan 
(``Plan'') outlines some revisions for Congress to consider in the 
Commercial Spectrum Enhancement Act (CSEA) to facilitate relocation of 
incumbents from Federal spectrum that could be licensed for broadband 
deployment. These recommendations focus on expanding the definition of 
reimbursable costs to provide Federal agencies adequate incentives to 
vacate Federal spectrum.
    I agree that the Federal spectrum relocation process can be 
improved, leading to more efficient use of available spectrum resources 
while enhancing wireless broadband availability. The CSEA funding 
mechanism was essential to the relocation of Federal incumbents from 
spectrum the Commission auctioned and licensed for Advanced Wireless 
Services (``AWS-1'').
    Any effort to build upon the success of the CSEA and implement 
possible improvements in the Federal spectrum relocation process, 
should consider the elements of a successful relocation framework. The 
objective of a successful framework should be not only to facilitate 
incumbent relocation from Federal spectrum and minimize for prospective 
bidders the uncertainty associated with the Federal relocation process, 
but also to treat incumbent spectrum users fairly and ensure that vital 
governmental functions are not adversely affected.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Mark Begich to 
                        Hon. Julius Genachowski

    Question 1. In your view, what changes to the Communications Act 
are needed for the FCC to effectively achieve the goals articulated in 
the plan?
    Answer. The majority of the plan's recommendations to the 
Commission are plainly within the Commission's commonly understood 
authority. Our authority to implement some, however, is called into 
question by the recent decision of the United States Court of Appeals 
for the District of Columbia Circuit in Comcast Corp. v. FCC, 600 F.3d 
642 (D.C. Cir. 2010). The Comcast decision casts serious doubt on 
whether the legal framework the Commission chose for broadband Internet 
services nearly a decade ago is adequate to achieve core broadband 
policies, which prior Commissions thought they had legal authority to 
implement. To confront this challenge, I have shared with my fellow 
Commissioners a draft Notice of Inquiry for their consideration at the 
Commission's June 17 Open Meeting. This Notice would initiate an agency 
proceeding to seek public comment on how the Commission should best 
address the challenge that Comcast has handed us. It would seek comment 
on all options, and invite any ideas for how the Commission should 
proceed, including: maintaining the current ``information service'' 
classification of services such as cable modem and DSL Internet access; 
classifying broadband Internet connectivity service as a 
``telecommunications service'' to which all the requirements of Title 
II of the Communications Act would apply; and a ``third way''--similar 
to the highly successful approach that has been used for cell phone 
services since 1993--under which the Commission would identify the 
Internet connectivity service that is offered as part of wired 
broadband Internet service as a telecommunications service and forbear 
from applying all provisions of Title II other than the small number 
that are needed to implement fundamental universal service, 
competition, and consumer protection policies. As you know, Chairmen 
Rockefeller, Waxman, Kerry, and Boucher have announced they will start 
a process to develop proposals to update the Communications Act. I 
welcome that process, and any new ideas that others may propose to 
address this issue, and the Commission stands ready to serve as a 
resource to Congress as it considers legislative changes in this area.

    Question 2. Thank you very much for your strong support for 
deployment of broadband on tribal lands and the amount of unserved 
areas in the U.S. that are tribal lands. While we all support more 
broadband in these areas, many still lack basic phone service. How do 
you propose to balance the needs of expanding all telecommunications 
services to Alaska and other states that lack basic phone service?
    Answer. The National Broadband Plan contains several 
recommendations to address disparities throughout the nation, including 
on tribal lands and Alaska Native regions. It gives us a roadmap for 
increasing the Nation's standing in broadband deployment and adoption, 
and for unserved or underserved areas, access to broadband also means 
quality telephone service for the first time in too many areas.
    The Commission took the first critical step by beginning the 
process of converting the Universal Service Fund over time to fund 
modern communications networks that support broadband as well as voice 
service. On April 21, 2010, the Commission adopted a notice of inquiry 
and notice of proposed rulemaking to examine near- and longer-term 
processes to target funding toward new deployment of broadband networks 
in unserved areas while considering final rules to implement a new 
Connect America Fund mechanism that will efficiently support broadband 
and voice services. The Commission looks forward to receiving 
substantial input for this record from tribal governments, so 
Commission staff can understand and account for unique circumstances 
present on tribal lands, including Alaska Native regions.
    The remote nature of some parts of Alaska has prevented the 
residents of those areas from gaining even basic telecommunications 
services. The Commission needs better data on these regions, so it 
plans to issue a broadband data rulemaking proceeding toward the end of 
this year, and coordinate with Native American governments to enhance 
data collection on tribal lands, including Alaska Native regions. The 
Commission also intends to issue a spectrum on tribal lands rulemaking 
proceeding during the fourth quarter of this year to examine increasing 
mobile opportunities in Native American communities, and follow with a 
rural health care reform rulemaking proceeding with an eye toward 
bringing access to world-class healthcare for tribal and remote 
regions.

    Question 3. I commend your sensitivity to the difficulties of 
serving residents of Tribal Lands, including Alaska, following the 
FCC's long precedent of policies designed to address the unique and 
complex deployment challenges of serving these areas. Will you continue 
to work with me to ensure that FCC broadband policies recognizing the 
unique challenges of Tribal Lands are responsive to my constituents' 
needs?
    Specifically I would like to you to carefully consider keeping the 
exemption from interim cap for tribal lands that was put in place for 
the high cost fund as the FCC moves toward a new model of support. I am 
very concerned about the impact the changes will have on the investment 
in Alaska infrastructure and the companies who work hard to deploy 
service to some of the most unserved areas of the Nation.
    Answer. As we move forward with universal service reform, including 
possible changes to the interim cap on competitive eligible 
telecommunications carrier support, the Commission intends to consider 
unique circumstances present on tribal lands, including Alaska Native 
regions. Indeed, on April 21, 2010, the Commission adopted a notice of 
inquiry and notice of proposed rulemaking, the Commission specifically 
sought comment on whether there are any unique circumstances on tribal 
lands, including Alaska Native regions, that would necessitate a 
different approach.

    Question 4. Under Recommendation 9.7, the Plan calls on the FCC to 
create an FCC Office of Tribal Affairs and a Tribal seat on the USAC 
Board. Are you able to give us a timeline of implementation of these 
specific actions?
    Answer. Launch of the FCC's Office of Native American Affairs is 
targeted for June 2010. Adding Tribal representation to the USAC Board 
requires amendment of the Commission's rules.

    Question 5. Many rural Incumbent Local Exchange Companies (ILECs) 
are concerned with the reform suggestions outlined in the National 
Broadband Plan. Can you direct me to where the plan discusses the level 
of high-speed broadband now available to customers served by rural 
Incumbent Local Exchange Companies (ILECs) vs. those served by Bell 
Operating Companies (BOCs) and other non-rural telecoms?
    Follow-up: Can you ask the broadband staff to prepare this 
comparison? I anticipate that there is far greater deployment available 
in areas served by rural telephone companies because of the universal 
service system and regulatory framework applicable to the rural 
incumbents. I would like to make certain the Commission has those facts 
before them as we go forward.
    Answer. The Plan, as well as a recent technical paper ``The 
Broadband Availability Gap,'' provide data on the fraction of unserved 
housing units that are in areas served by a Bell Operating Company, a 
mid-size price cap carrier, and a rate of return carrier. The Plan 
estimated that:

   52 percent of unserved housing units are in census blocks in 
        which one of the three Regional Bell Operating Companies (AT&T, 
        Verizon or Qwest) is the incumbent local exchange carrier;

   15 percent of the unserved housing units are in census 
        blocks where a mid-sized price-cap carrier is the incumbent 
        provider; and

   One-third (33 percent) of unserved housing units are in 
        census blocks where a rate-of-return carrier is the incumbent 
        provider.

    To measure broadband deployment progress, the Commission needs 
accurate, up-to-date data. Moreover, the Commission's Broadband Action 
Agenda includes opening a proceeding later this year to improve the 
data it collects on broadband deployment. At present, the data on 
availability provide very limited insight as to whether any one 
particular regulatory regime, which provides support for voice 
services, has had an impact on broadband deployment.

    Question 5a. Do you believe that it is generally understood that 
investment in broadband compliant infrastructure in rural areas is 
driven by the contrasting regulatory regimes in place for rural ILECs 
and non-rural ILECS?
    Follow-up: I think we all should have quantifiable information as 
we go forward with implementing this plan. With all the time and effort 
that your broadband staff has already undertaken, I hope it won't be 
difficult to provide us with a summary that demonstrates how extensive 
broadband high speed deployment has been in areas served by rural 
incumbent carriers subject to common carriage rate of return regulation 
compared to the broadband deployment in rural areas served by price cap 
companies providing high speed Internet as a non common carrier 
service.
    Answer. As noted in the preceding answer, there are unserved 
communities in areas served by both price cap and rate of return 
carriers. Absent comprehensive reform, many communities in America will 
never have access to broadband because there is no private sector 
business case to serve these areas. Leaving some communities behind is 
not consistent with the country's long-standing goal of universal 
service. This digital divide exists today and will only get worse if 
the universal service system is not fundamentally reformed. Thus, 
comprehensive reform to the universal service system is necessary to 
ensure that all communities have access to broadband. The Commission 
looks forward to gathering more information through our rulemaking 
process to assist us in crafting the appropriate policies in this area.

    Question 5b. If rate of return regulation for rural companies has 
resulted in rural areas obtaining significant high speed broadband 
availability but price cap regulation for BOCs has resulted in little 
deployment in the rural areas they serve, why does the report propose 
to end rate of return regulation when it is rate of return regulation 
that has had success in meeting the goals of high speed broadband 
deployment?
    Answer. The National Broadband Plan sets forth a vision to provide 
broadband access to all Americans, regardless of where they live and 
regardless of the regulatory classification of their carrier. Both 
price cap and rate-of-return carriers, have made significant 
investments in broadband. As noted above, the Plan, as well as a recent 
technical paper ``The Broadband Availability Gap,'' provide data on the 
fraction of unserved housing units that are in areas served by a Bell 
Operating Company, a mid-size price cap carrier, and a rate of return 
carrier. The Plan estimated that:

   52 percent of unserved housing units are in census blocks in 
        which one of the three Regional Bell Operating Companies (AT&T, 
        Verizon or Qwest) is the incumbent local exchange carrier;

   15 percent of the unserved housing units are in census 
        blocks where a mid-sized price-cap carrier is the incumbent 
        provider; and

   One-third (33 percent) of unserved housing units are in 
        census blocks where a rate-of-return carrier is the incumbent 
        provider.

    As one critical step to achieve the goal of universal broadband, 
the Commission must reconfigure the current High-Cost Universal Service 
Fund, which is designed to support voice service, to a new universal 
service program, described in the Plan as the ``Connect America Fund,'' 
that will provide support for broadband networks capable of providing 
voice services. As part of this conversion, the Plan recommends moving 
rate-of-return carriers to incentive regulation. The Plan does not, 
however, specify the type of incentive regulation, such as price cap.
    A shift from rate-of-return to incentive regulation advances both 
to the general goal of ensuring widespread deployment of broadband 
networks and the specific tool of universal service reform. Rate-of-
return regulation was implemented at a time when monopoly providers 
offered regulated voice telephone service over copper wires in a 
particular geographic area. Such an era no longer reflects the reality 
of converging technologies and competition in the 21st century 
broadband world. Indeed, a growing number of rural carriers have 
voluntarily elected to convert to price cap regulation to become more 
efficient and competitive. Moreover, the conversion to incentive 
regulation could help limit growth in the legacy High-Cost Universal 
Service Fund while the Commission moves to adopt a more efficient and 
targeted funding mechanism for government support for broadband 
investment.
    Incentive regulation could take many forms. Indeed, the majority of 
states have already recognized the benefits of moving to some form of 
incentive regulation--with over 30 states having already eliminated 
rate of return regulation for local rates. States have found it 
possible to craft regimes that provide the necessary stability for 
ongoing investment. The Commission is seeking comment on the 
recommendation in the Plan, including the proposal to move to incentive 
regulation. The Commission also asks parties to suggest other 
alternatives that would allow the Commission to achieve the National 
Broadband Plan goals of world-leading, affordable broadband service for 
all Americans. The Commission welcomes and encourages all interested 
parties to provide suggestions, data and recommendations in response to 
the Notice.

    Question 5c. Why did the plan settle on the download speed of 4 MB 
(megabits-per-second) by 2020? It seems a bit modest for a goal.
    Answer. The Commission analyzed consumer usage of broadband speeds 
to set an initial target of 4 Mbps of actual download speed and 1 Mbps 
of actual upload speed, which is quite aggressive. It is one of the 
highest universalization targets in the world. Many nations, such as 
South Korea and Finland, have already adopted short-term download 
targets around 1 Mbps. In addition, the 4 Mbps is comparable to the 
median speed received by residential consumers today, and what many 
consumers are likely to use in the near term, given past growth rates.
    To ensure that consumers in rural areas receive broadband speeds 
comparable to urban areas, the Plan also recommends reevaluating this 4 
Mbps funding target every 4 years and adjusting it as appropriate to 
reflect changing consumer use and demand to ensure that rural areas 
continue to receive service that is reasonably comparable to service in 
urban areas. Doing so will ensure that there is no digital divide in 
this country.

    Question 5d. Does this goal provide a competitive benefit to 
wireless technology?
    Answer. The Plan is technology and provider neutral. The Plan 
recommends that any provider that is able to meet the qualifications 
set forth by the Commission will be eligible to receive support to 
deploy broadband. The public and interested parties will have ample 
opportunity to comment and provide suggestions on what the criteria 
should be adopted to be eligible for distribution of support.

    Question 6. The CLECs who serve rural Alaska communities have been 
investing in mobile services and bringing cell phones to regions of the 
state that previously were unserved. They are very concerned the 
transition away from the High Cost Fund. Under a current order from the 
FCC, the CLECs are exempted from a cap on the High Cost Fund. Will you 
look into the possibility of extending this exemption on tribal lands 
as you move forward on USF reforms?
    Answer. In considering any universal service reforms, we will 
consider whether an exemption should be made for tribal lands, 
including Alaska Native regions, or any other region where unique 
circumstances necessitate a different approach. Indeed, in the 
universal service reform notice of inquiry and notice of proposed 
rulemaking adopted on April 21, 2010, the Commission specifically 
sought comment on whether there are any unique circumstances on tribal 
lands, including Alaska Native Regions, that would necessitate a 
different approach.

    Question 7. Many critics of the plan believe investment in networks 
will be chilled by the work of the National Broadband plan. Some people 
have expressed concerns that the Plan may produce the unintended 
consequence of chilling investment in these networks. Can you please 
address these concerns?
    Answer. The National Broadband Plan sets forth recommendations that 
are designed to encourage, not discourage, investment in broadband 
networks. While I don't know the specific proposals that these concerns 
reference, the Commission intends to move forward in an open and data-
driven manner with the goal of expanding and improving broadband 
networks, and removing barriers to innovation and investment throughout 
the Nation.

    Question 8. I appreciate the push to bring the country to a 4G 
world--but the plan highlights that Chairman Rockefeller and my states 
lag behind in populations with access to a 3G network, with West 
Virginia 71 percent and Alaska with 77 percent covered. As you know, 
the remaining percentage will be the most difficult and costly to 
cover. Can you discuss some of the funding changes proposed for network 
build out? (Chapter 8.3)
    Answer. As you have noted, building out networks on sparsely 
populated and/or remote areas can be very costly. Nonetheless, as a 
nation we need to ensure that no population is left out of the benefits 
that come with access to mobile broadband. The Plan proposes the 
creation of a Mobility Fund, as part of broader reforms of the 
Universal Service Fund. Without increasing the overall size of 
Universal Service Funding, the Plan recommends providing one-time 
support for deployment of infrastructure enabling robust mobile 
broadband networks, to bring all states to a minimum level of mobile 
availability. Bringing all states up to a national standard will help 
enable Americans in unserved areas participate in the mobile 
revolution. I have directed staff to prepare a specific proposal for a 
Mobility Fund for Commission vote this fall.

    Question 9. I also appreciate the recognition that the FCC gives to 
the most under and unserved populations, tribal communities. I received 
many complains in my office regarding the broadband ARRA programs and 
their perceived failure to accommodate the needs of tribal communities. 
For future grant programs under NTIA (BTOP) and Rural Utilities 
Service, do you have recommendations on how to improve the process for 
tribal communities?
    Answer. The Commission is not involved with the evaluation or 
review of the Broadband Technology Opportunities Program (BTOP). 
Concerns regarding the BTOP process should be directed to NTIA.

    Question 10. The Broadband plan notes that rural Americans are 
significantly less likely to subscribe to broadband Internet access 
than their counterparts in urban areas. As you may know, Alaska has 
many rural communities. What strategies will you use to close the gap?
    Answer. Many of the adoption recommendations included in the 
National Broadband Plan are similar to those proposed in the first 
round BTOP application submitted by the University of Alaska for their 
Bridging the e-Skills Gap in Alaska program. For example, the Digital 
Literacy Corps, if funded, could provide digital skills training to a 
group of local rural residents, who, as trusted members of their 
communities, could help other residents understand the value of 
broadband and acquire the skills needed to navigate online 
environments. The Plan also recommends targeted awareness programs and 
a best practices clearinghouse, which would help rural communities 
share best practices and eliminate redundant efforts, both of which 
were included in the Alaska proposal. Additionally, the Plan suggests 
continuing support for state level initiatives, which could allow 
Alaska more ability to plan and implement programs specifically 
tailored to meet the state's needs and the unique adoption barriers 
faced by its citizens.
    Low-income residents may also benefit from the plan's 
recommendation to expand low income Universal Service support to 
broadband, and Native Alaskans will benefit from recommendations 
designed to increase adoption and deployment of broadband on Tribal 
lands such as the Tribal Broadband Fund.

    Question 11. In the Plan, the FCC shows that adoption on Tribal 
lands is extremely low because broadband has not been built out to 
these areas. In Alaska, we have many regions that are either 
underserved or not served at all. How do you plan to address this from 
both the wireline and the wireless perspective? Additionally, will you 
discuss how you believe the Commission should move forward in modifying 
the Tribal Land Bidding Credit (pg. 97 of NBP)?
    Answer. As noted above, the National Broadband Plan aims to provide 
several tools to address disparities throughout the nation, including 
on tribal lands and Alaska Native regions. The Commission took the 
first critical step by beginning the process of converting the 
Universal Service Fund over time to fund modern communications networks 
that support broadband as well as voice service. On April 21, 2010, the 
Commission adopted a notice of inquiry and notice of proposed 
rulemaking to examine near- and longer-term processes to target funding 
toward new deployment of broadband networks in unserved areas while 
considering final rules to implement a new Connect America Fund 
mechanism that will efficiently support universal access to broadband 
and voice services. The Commission looks forward to receiving 
substantial input for this record from tribal governments, so 
Commission staff can understand and account for unique circumstances 
present on tribal lands, including Alaska Native regions.
    Recommendation 5.17 of the Plan outlines five specific actions to 
be undertaken as the Commission considers the unique spectrum needs of 
Tribal lands, which are intended to assist the development of wireless 
services. First, in connection with the recently launched Spectrum 
Dashboard, Commission staff is continuing to explore and implement 
improvements to the database that will assist in spectrum policy 
planning and decisionmaking, promote a robust secondary market in 
spectrum and improve communications services in all areas of the U.S., 
including rural, underserved and Tribal lands. As a first step, we are 
seeking to develop a search feature that would identify spectrum 
licensed on federally recognized Tribal lands.
    Second, as you note, I have directed staff to explore changes to 
the Tribal Land Bidding Credit program. I have asked staff to prepare 
an NPRM for the 4th quarter of this year proposing rules to promote 
greater use of spectrum on Tribal lands in coordination with Tribal 
governments, including possible revisions to the Tribal Land Bidding 
Credit. In that regard, we would seek comment on possible improvements 
to our program for providing Tribal Land Bidding Credits, including 
modifications to facilitate Tribal access to spectrum on Tribal lands.
    Third, we will explore establishing a Tribal Priority for wireless 
licenses covering Tribal lands. While the statutory and regulatory 
procedures for licensing wireless services are different in some 
respects from those applicable to broadcast stations, the Tribal 
Priority recently adopted for the threshold stage of FM radio allotment 
and AM radio licensing could be a model for establishing a similar 
priority in the wireless context.
    Fourth, we will explore creating additional flexibility and 
incentives for build out of facilities serving Tribal lands.
    Fifth, the Plan recommends expeditious resolution of pending 
petitions for reconsideration in the White Space proceeding and proceed 
with a Notice of Inquiry to consider higher power fixed operations in 
rural areas, which often include Tribal lands. I have directed staff to 
complete the final rules for TV white space devices by resolving 
outstanding challenges to those rules in the 3rd quarter of this year.
    Several other aspects of the Plan propose action to address the 
need to ensure that services reach all parts of the country. 
Recommendation 8.3 proposes the creation of the Mobility Fund to 
provide onetime support for deployment of 3G networks, to bring all 
states to a minimum level of 3G (or better) mobile service 
availability. This proposal, along with proposals with respect to other 
mechanisms mentioned above, such as the Connect America Fund, will 
assist the build out of wireless services.

    Question 12. Many Alaskans are concerned about rising monthly bills 
due to surcharges and line items that were not made clear to them when 
they signed up for service. What steps can the FCC take to improve 
transparency in billing?
    Answer. In August 2009, the FCC released a broad Notice of Inquiry 
(NOI) as part of its Truth-inBilling proceeding seeking information on 
opportunities to protect and empower American consumers by ensuring 
that consumers have sufficient access to relevant information about 
communications services. The Consumer Information and Disclosure NOI 
asked questions about the adequacy of information available to 
consumers at all stages of the purchasing process, including: (1) 
choosing a provider, (2) choosing a service plan, (3) managing use of 
the service plan, and (4) deciding whether and when to switch to a 
different provider or plan. The Consumer Information and Disclosure NOI 
asks these questions about all communications services used by 
consumers, including wireline and wireless, broadband, and video 
subscription services. The NOI also recognized that ``access to 
accurate information plays a central role in maintaining a well-
functioning marketplace that encourages competition, innovation, low 
prices and high-quality services.'' (NOI at para. 5.) FCC staff are 
reviewing the record compiled in response to the NOI and considering 
appropriate next steps for protecting consumers.

    Question 13. It's alarming to me that the FCC has found that 
broadband providers often times don't actually deliver the speeds they 
advertise. How can consumers make these important decisions when they 
don't know what speeds they are signing up for?
    Answer. The FCC also recognized the importance of consumer 
information to meaningful competition in its National Broadband Plan 
(NBP), stating: ``Consumers need more information about the speed and 
overall performance of the [broadband] services they receive and of 
competitive offers in their area, and about the gap between actual and 
advertised speeds and the implications of that difference.'' (NPB at 
p.44.) To provide consumers this necessary information, the NBP 
recommends that the FCC, in coordination with the National Institute of 
Standards and Technology, establish technical broadband measurement 
standards and a methodology and process for updating them. It also 
recommends that the FCC encourage the formation of a partnership of 
industry and consumer groups to provide input on these standards and 
this methodology. Further, the Plan recommends that the FCC continue 
measuring and publishing data on actual performance of broadband 
services and initiate a rulemaking proceeding to determine performance 
disclosure requirements for broadband. The FCC has posted on its 
website links to broadband speed measurement tools available free to 
all consumers from any location where they use broadband service, and 
FCC staff have begun work to implement the Plan's additional 
recommendations. Further to the NBP recommendation, the FCC recently 
contracted with a third-party, SamKnows Limited, to begin measuring 
broadband speeds.

    Question 14. The NBP (National Broadband Plan) notes that Americans 
in low-income households subscribe to broadband Internet at much lower 
rates than their more affluent counterparts, even though they adopt 
mobile and pay-TV services at nearly the same rates. Can you try to 
explain this difference? How is the Commission going to tackle this 
problem it?
    Answer. An FCC survey conducted in developing the NBP identified 
three major barriers that keep non-adopters from getting broadband: (1) 
cost, (2) digital literacy, and (3) relevance. (NPB at 170.) In 
addition to outlining guiding principles for improving broadband 
adoption and utilization, the Plan made specific recommendations for 
addressing each barrier. The Plan's recommendations for addressing the 
cost barrier include expanding the current Universal Service Lifeline 
Assistance and Link-Up America programs to make broadband more 
affordable for low-income households and considering free or very low-
cost wireless broadband as a means to address affordability. In 
addition, ensuring competition and a well-functioning marketplace by 
providing all consumers with the information needed to make purchasing 
decisions may also help make broadband more affordable.
    The FCC has developed an outreach and educational structure to 
reach targeted constituencies. These constituencies align with those 
highlighted in the NBP. We will be working with national, state and 
local governments and community organizations. Specifically, our 
targeted constituencies are African American, Hispanic, Senior, Rural 
and Tribal. While we are targeting these groups, we also are working 
with organizations that will aid us in lifting some of the adoption 
barriers, such as libraries, senior and community centers, schools and 
local organizations.

    Question 14a. How does the FCC plan to promote innovation in 
content and online applications?
    Answer. Promoting innovation in content and online applications is 
a key goal of the Commission's ongoing Open Internet proceeding. I 
believe that high-level rules of the road to preserve the free and open 
Internet can help ensure that content and application innovation 
continues to flourish online. The Commission moved forward last month 
with a proceeding to promote innovation and consumer choice in the 
video-device marketplace, which will help foster more innovative 
content and applications, implementing a key recommendation of the 
National Broadband Plan. The National Broadband Plan contains a number 
of other recommendations to promote innovation in online content and 
applications, e.g., regarding privacy, the smart grid, health IT, and 
online learning. The FCC is working to help implement those 
recommendations, either directly or by assisting other government 
agencies and stakeholders.

    Question 15. Mr. Chairman, I wanted to bring your attention to the 
letter Senator Wicker and I sent to you last month regarding data 
roaming issues and the current open proceeding. Can you give us a more 
specific timeline on this moving forward proceeding?
    Answer. In April, the FCC sought additional comment on whether to 
extend automatic roaming obligations to mobile data services. Comments 
are due June 14, 2010, and reply comments are due July 12, 2010. I look 
forward to reviewing the record and working with my fellow 
Commissioners to determine, in an expeditious manner, the path forward 
that best serves American consumers with a focus on the importance of 
data roaming for rural Americans.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                        Hon. Julius Genachowski

    Question 1. The Broadband Plan makes several references to the 
private sector investment that has been made to broadband networks and 
services. The document even goes as far to state that ``due in large 
part to private investment and market-driven innovation, broadband in 
America has improved considerably in the last decade.''
    Back in the Fall, the Commission concluded that a total investment 
for universal broadband availability for the Nation would range from 
$20 billion to $350 billion depending on the speed of broadband 
service.
    In the Plan, the Commission concludes that in order to achieve the 
National Broadband Availability Target of broadband speeds of 4 Mbps 
download and 1 megabit-per-sec upload, the total cost would be 
approximately $33 billion.
    The Plan sets a goal of 100 million U.S. homes should have 
affordable access to actual download speeds of at least 100 Mbps and 
actual upload speeds of at least 50 Mbps by 2020. Can you pinpoint or 
elaborate on what the Commission has estimated as the required 
investment to achieve that goal?
    Answer. The Plan's goal for achieving affordable, actual download 
speeds of 100 megabits-per-second downstream and 50 megabits-per-second 
upstream to 100 million American homes by 2020 is ambitious but 
achievable. The 100-squared initiative will help ensure America's 
global competitiveness in the 21st century. A widespread level of 
affordable high-speed connectivity will encourage innovators to develop 
the next generation of cutting-edge applications in the American 
market, for the American people.
    The network deployment model developed and referenced in the Plan 
was aimed at estimating what areas of the country are currently 
``unserved'' by broadband and calculating the level of investment that 
would be needed to serve those areas. The model was not developed with 
the purpose of estimating the investment that would be required to 
build 100 Mbps networks to 100 million households.

    Question 2. One of the main goals of the Plan to is to ``maximize 
investment'' but the document seems to be light on recommendations 
related to financial incentives such as tax credits to bolster capital 
investment in infrastructure.
    Given the significant capital expenditures required to meet the 
Commission's National Broadband Availability Target and 100-100 goal, 
why weren't there more recommendations related to tax credit-based 
incentives? The plan made these types of tax-based proposals to 
Congress for Research and Experimentation (R&E) and telework practices.
    Answer. The Plan includes a variety of recommendations to reduce 
costs and encourage private sector deployment in broadband networks and 
applications. The Plan has recommendations to encourage private sector 
investment to realize the 100 squared goal by, among other things, 
fostering competition, driving demand for increased network performance 
and lowering the cost of deploying infrastructure. These 
recommendations should help inform consumers about broadband 
performance, expand services and infrastructure, and reform access to 
rights-of-way to lower barriers to entry for firms. The Plan also 
encourages Congress to make the Research and Experimentation (R&E) tax 
credit a long-term tax credit to stimulate broadband research and 
development, which is a cost effective way to spur private sector 
research and investment in broadband networks and applications.

    Question 3. The Plan also establishes six long-term goals to serve 
as a compass over the next 10 years. The first goal is to provide at 
least 100 million U.S. homes with affordable Internet broadband access 
with actual download speeds of at least 100 megabits-per-second and 
actual upload speeds of at least 50 megabits-per-second. Providing 
consumers, developers, and small businesses such high-speed broadband 
speeds will truly revolutionize the Internet as well as exponentially 
increase the benefits it provides--users will be able to leverage new 
and emerging high-bandwidth applications and services that aren't 
available today or accessible with lower speeds.
    But at the same time, the Plan acknowledges that broadband carriers 
are aggressively upgrading their networks to offer higher speeds and 
greater capacities. The Plan cites several network upgrades and 
expansions that are already planned or in the process of being 
implemented over next 2 to 3 years that will provide approximately 100 
million homes with broadband speeds of 20 to 50 megabits-per-second and 
provide the building blocks to even faster broadband speeds in long-
term. How will the Commission measure the effectiveness of this Plan as 
a catalyst for accelerating the investment that is currently underway 
or broadband deployment and adoption in general?
    Answer. The Plan includes a variety of recommendations and 
benchmarks to track progress of broadband deployment and adoption. 
Implementing the Plan requires a long-term commitment to measuring 
progress and adjusting programs and policies to improve performance. 
The Plan's recommendations to monitor implementation include:

        a. Ensuring that the FCC quickly publishes a timetable of 
        proceedings to implement plan recommendations within its 
        authority;

        b. Publishing an evaluation of plan progress and effectiveness 
        as part of the annual Section 706 Advanced Services Inquiry;

        c. Creating a Broadband Data Depository;

        d. Continue to utilize Broadband.gov as a public resource for 
        broadband information; and,

        e. Publishing a Broadband Performance Dashboard with metrics 
        designed to track broadband plan goals.

    Also, as required by the Broadband Data Improvement Act, the 
Commission intends to conduct periodic surveys of consumers in urban, 
suburban, and rural areas in the large business, small business, and 
residential consumer markets to evaluate the characteristics of 
broadband service capability and adoption. These periodic national 
surveys will help track adoption rates over time, which can help 
measure the effectiveness of the Plan's proposals.
    The Plan recommends that the Commission and the U.S. Bureau of 
Labor Statistics collect more detailed and accurate data on actual 
availability, penetration, prices, churn and bundles offered by 
broadband service providers to consumers and businesses, and should 
publish analyses of these data. The Commission's Broadband Action 
Agenda includes a proceeding later this year to improve the data the 
Commission collects on broadband deployment and adoption. By collecting 
more granular data over an extended time period, the Commission and 
other agencies can analyze the impact of programs and investment on 
broadband deployment and adoption.
    In addition, the National Broadband Plan recommends Congress and 
Federal agencies promote third-party evaluation of future broadband 
adoption by including specific requirements and funding for program 
evaluation and funding to conduct in-depth assessments and longitudinal 
program assessment.

    Question 4. One of the E-rate recommendations in the Plan is that 
the FCC should reexamine specific E-rate rules that appear to limit the 
flexibility of applicants to craft the most cost-effective broadband 
solutions based on the types of broadband infrastructure, services and 
providers available in their geographic areas. While more flexibility 
could possibly reduce the overall cost of broadband and increase 
bandwidth, there are concerns about maintaining the integrity of the 
program. The E-rate program has been very successful, well run, and 
established procedures for minimizing waste, fraud, and abuse. Can you 
elaborate on the FCC's plan with respect to reforming and enhancing the 
E-rate program but maintaining the integrity and ensuring that 
increasing flexibility doesn't open it up to more waste, fraud, and 
abuse?
    Answer. In keeping with the National Broadband Plan's vision of 
improving and modernizing the universal service programs, the 
Commission is currently examining what is working well and what can be 
improved in the current E-rate program. Specifically, the Commission is 
considering several potential reforms that would cut red tape by 
eliminating rules that have not effectively served their intended 
purpose, while continuing to protect against waste, fraud, and abuse. 
For example, the Commission is considering streamlining the E-rate 
application process, providing greater flexibility for applicants to 
choose the most cost-effective and educationally useful broadband 
services. The Commission is also exploring ways to expand the reach of 
broadband to the classroom, including schools that serve populations 
facing unique challenges, such as tribal schools or schools for 
children with physical, cognitive, or behavioral disabilities. 
Additionally, the Commission is taking steps to make the E-rate program 
more user-friendly and is working closely with the Universal Service 
Administrative Company, which administers the E-rate program under the 
Commission's direction.
    The E-rate program provides two ``priorities'' for discounting 
telecommunications services--Priority 1 for external telecommunications 
and Internet connections and Priority 2 for internal connections/
wiring. The Plan recommends that the Commission develop ways that 
Priority 2 funding can be made available to more E-rate applicants. 
Given the advancements in information technology and more dynamic 
content and applications that teachers and students are utilizing, 
numerous schools are finding that traditional Priority 1 connections 
(typically T1/T3s) are not enough for the growing demand and usage--
that higher bandwidth connections are needed. Libraries have also 
conveyed the need for greater capacity due to increased patronage.

    Question 5. The Broadband Plan makes numerous proposals related to 
the Universal Service Fund, in general. As you know, the Universal 
Service Administrative Company (USAC) is the independent, not-for-
profit corporation designated as the administrator of the Federal 
Universal Service Fund by the FCC. Can you elaborate on how involved 
the Universal Service Administrative Company (USAC) was in assisting 
the FCC's development of these recommendations? Were USAC official 
active participants in discussions?
    Answer. As the National Broadband Plan Team developed its 
recommendations, it obtained information and data from USAC, as 
necessary, regarding the operation of the existing universal service 
programs.

    Question 6. The E-rate program provides two ``priorities'' for 
discounting telecommunications services--Priority 1 for external 
telecommunications and Internet connections and Priority 2 for internal 
connections/wiring. The Plan recommends the Commission develop ways 
that Priority 2 funding can be made available to more E-rate 
applicants. Given the advancements in information technology and more 
dynamic content and applications that teachers and students are 
utilizing, numerous schools are expressing that traditional Priority 1 
connections (typically T1/T3s) are not enough for the growing demand 
and usage--that higher bandwidth connections are needed. Libraries have 
also conveyed the need for greater capacity due to increase patronage. 
How will the Commission balance the recommendation for increasing 
Priority 2 funding with accommodating for greater Priority 1 funding to 
meet the growing bandwidth needs of schools and libraries?
    Answer. Funding under the E-rate program is essential to enable 
schools and libraries to maintain current levels of Internet 
connectivity and to provide access to improved telecommunications and 
information services as technology advances. High-speed services are 
needed to handle the applications available today, including online 
distance learning and videoconferencing. Schools will need E-rate 
funding for both the initial implementation of high-speed broadband 
access and for ongoing costs to maintain and continuously improve their 
networks. Although the E-rate program has always been able to fund all 
Priority 1 requests in the past, the demand for internal connections 
has exceeded the E-rate program's $2.25 billion cap in every year but 
one since the program's existence. The Commission is currently 
considering ways to ensure that schools and libraries receive funding 
for Priority 2 services, with two goals in mind: (1) providing funding 
for internal connections to more schools and libraries than in the 
past; and (2) ensuring that a predictable amount of funding is 
available to schools and libraries for internal connections each year.

    Question 7. One of the main focal points of the Plan is radio 
spectrum and finding more of it for wireless. While I strongly agree 
that comprehensive spectrum policy reform is long overdue and paramount 
to achieving the long-term telecommunications needs of this nation, I 
am concerned about what seems to be a heavy emphasis on reallocation 
instead of a more multi-faceted solution that includes fostering 
technological advancement and more robust spectrum management.
    Case in point, there are extensive and detailed recommendations in 
the Plan to reallocate 120 megahertz of spectrum currently being used 
by broadcasters as well as the voluntary mobile auction fund, but only 
general recommendations to encourage technical innovation and spectrum 
sharing/reuse opportunities that would improve spectrum efficiency. For 
example, a technology known as femtocell, that can increase capacity by 
offloading wireless traffic onto broadband wireline networks, wasn't 
mentioned once in the Plan.
    This plan is suppose to be forward thinking but seems to be 
somewhat stuck in the past by presenting a roadmap that excessively 
relies on reallocation, which is a zero sum game, instead of a greater 
emphasis on technological innovation and robust management to increase 
spectrum efficiency and wireless capacity. Do you agree that more 
robust spectrum management policy and technical innovation advancement 
are just as important, if not more so than reallocation? Can you 
explain in more detail how the Plan will implement a comprehensive 
solution to ensure that spectrum is available to meet the future needs 
of all users--not just wireless broadband?
    Answer. I certainly agree that an effective spectrum policy 
involves much more than allocation decisions. The Plan includes a 
number of recommendations for spectrum policy initiatives.
    For instance, the Plan calls for ensuring greater transparency 
concerning existing spectrum allocation and utilization. The FCC has 
already launched, concurrent with release of the Plan, the ``spectrum 
dashboard,'' which enables user-friendly access to information 
regarding spectrum bands and licenses. The dashboard will also assist 
in spectrum policy planning and decision-making, and help promote a 
robust secondary market in spectrum so that companies can access 
spectrum to serve a variety of different needs. The Plan also 
recommends that the Commission move forward with creating methods for 
ongoing measurement of spectrum utilization. This too, will help 
provide a fact base that can inform policymaking so that we can take 
needed actions to make better use of spectrum. In addition, the Plan 
calls for a triennial assessment of spectrum allocations to ensure that 
existing allocations serve the public interest.
    I also believe that the FCC should expand incentives and mechanisms 
for incumbent licensees to yield their spectrum to more productive 
uses. The Plan sets forth several different mechanisms, including the 
use of incentive auctions and expansion of tools to facilitate 
relocation of government users.

    Question 8. One of the recommendations within the National 
Broadband Plan is that the FCC should make 500 megahertz newly 
available for broadband use within the next 10 years, of which 300 
megahertz between 225 MHz and 3.7 GHz should be made newly available 
for mobile use within 5 years.
    While the Plan briefly notes general estimates between 40 to 150 
megahertz of spectrum are required for each operator, it wasn't clear 
as to how the 500 MHz would ultimately be parceled out--spectrum 
license sizes for new competitors and additional spectrum bandwidth to 
increase capacity for incumbent spectrum licensees. Can you elaborate 
on how that 500 MHz will be distributed?
    Answer. As the Plan notes, the forecast of the need to make 300 
megahertz of spectrum between 225 MHz and 3.7 GHz available by 2015 
reflects a set of reasonable assumptions about the evolution of supply 
and demand for mobile bandwidth. Determinations about whether spectrum 
is licensed or unlicensed, as well as service rules, will need to be 
developed. By adopting flexible use policies for this spectrum, and 
facilitating secondary markets, the Commission will help ensure that 
spectrum can be put to its highest and best use.

    Question 9. How will the Commission balance providing more spectrum 
to incumbents in order to increase capacity and bandwidth with 
providing spectrum to new entrants to foster more competition so 
consumers can have more choices available to them?
    Answer. The first priority is to make available additional 
spectrum. Both incumbents and new entrants will need access to 
spectrum.

    Question 10. The FCC recently launched a free broadband speed test 
for consumers to check the download and upload speeds of their Internet 
broadband connection. The premise is that the test will allow consumers 
to compare the FCC test results with the speeds promised by the 
broadband provider and allow the FCC to use data collected from the 
test to analyze broadband quality and availability across the United 
States.
    However, some users have expressed concern about widely varying 
results. There is actually a disclaimer on the FCC test site stating 
that the test may not be an accurate representation of connection 
quality provided by one's broadband provider. An FCC official recently 
stated that ``software-based tools can provide individuals with 
inconsistent performance results, some of which are out of the control 
of the ISP.'' Given the test transfers a small amount of generic data 
back and forth between a user's computer and a testing server, the path 
that the data takes could contain numerous hops or links owned and 
operated by multiple carriers that the consumer is not aware of--even 
for local end points. In addition, the old adage ``you're only as fast 
as your slowest link'' seems to apply. So one could easily see a 
possible misrepresentation the test would have and the consumer 
confusion that could result.
    Is the FCC concerned about consumer confusion that the Commission's 
Consumer Broadband Test could create? With varying test results and 
lack of detailed information presented, it could lead to consumers 
wrongly accusing their broadband provider of not providing what they 
are advertising even though, as the FCC official noted, some 
performance characteristics are out of the ISP's control, correct?
    Answer. The Commission recognizes that there are limitations to the 
online, software-based, speed tests, as you rightly point out. However, 
these speed tests are not designed primarily to test the performance 
that a consumer's broadband provider is delivering (and solely 
responsible for), but rather to provide insight into the actual 
performance that the consumer experiences on his or her device. In that 
respect, the software-based tests are extremely valuable.
    Beyond performance experienced by the consumer though, we are also 
interested in performance delivered by an individual ISP, as part of 
the broader transparency initiative. For that reason, we are also 
launching a hardware-based speed testing project in partnership with a 
third-party contractor, SamKnows.

   The goal of the project is to provide consumers with 
        accurate and complete information about what speeds are 
        delivered to their homes by ISPs.

   While measuring performance experienced on an end-user 
        device is valuable as well, ISPs cannot be reasonably held 
        accountable for factors inside of the home that may degrade 
        service. Therefore, this project will rely on scientific, 
        hardware-based testing that will test performance at the point 
        of the user's router.

   The initial test will rely on a panel of 10,000 volunteers 
        across ISPs, service tiers and geographies, all of which will 
        be given a customized router that can be easily integrated into 
        their existing home network.

   The FCC will make results of this study available later this 
        year on both a publicly accessible website and in the form of a 
        report.

   This is the first step in an iterative process to design a 
        specific testing methodology for broadband services and create 
        more transparency and accountability in the broadband 
        marketplace.

    Question 11. Transparency with broadband performance is a key issue 
within the Plan but there isn't any real mention of the multitude of 
factors that affect broadband speeds--the multiple links that exist 
between consumer and the Internet content they're accessing, equipment 
performance, the type of data being transmitted, existence of viruses/
malware, etc. What are the FCC's plans to properly address this?
    Answer. Many factors affect broadband performance, so, as described 
above, the Commission intends to employ a two-part strategy to provide 
improved measurement and reporting of broadband speeds and performance. 
The first part, tackled by online speed tests at the end-user's device, 
will provide information on performance experienced by consumers. The 
second part, tackled by hardware-based testing that sits behind a 
customer's modem, will provide information on performance delivered by 
ISPs. As the diagram below illustrates, there are a number of points 
where performance can be affected:



    Software-based testing covers performance for the entire range from 
point 1 to point 6. However, to isolate just the performance delivered 
by ISPs, it is important to focus just on point 2 to point 5. The 
Commission staff is working with a third-party contractor, SamKnows, as 
well as the ISP community to accomplish this. By placing test devices 
at the Customer Premise Equipment (CPE) point, we can remove 
performance degradation that occurs between points 5 and 6 from factors 
such as in-home wiring, multiple computers in use, viruses or malware 
on a device, and other issues. By working with ISPs and independent 
testing locations to place testing servers on ISP networks and at 
commonly used peering exchanges, we can remove performance degradation 
that occurs between points 1 and 2 from factors such as off-network or 
public Internet traffic that an ISP cannot control.
    Although there are a multitude of factors affecting broadband 
speeds, by performing both of these tests, the Commission hopes to 
isolate just those factors that ISPs are responsible for. That way, 
consumers are informed as to whether, when they experience sub-standard 
performance, the issue is what is delivered by the ISP, or whether the 
issue is on their device or in their home network. This will lessen the 
burden on ISPs to deal with customer complaints about performance that 
they cannot correct, and lessen the burden on consumers that may 
erroneously purchase higher speed service packages when that may not be 
the true problem.

    Question 12. The Broadband Plan indicates that approximately 4 
percent of housing units are in areas with three wireline providers 
(either DSL or fiber, the cable incumbent and a cable over-builder), 
and 78 percent are in areas with two wireline providers. Thirteen 
percent are in areas with a single wireline provider and 5 percent have 
no wireline provider.
    However, this data seems to conflict with the FCC's most recent 
semi-annual broadband report, which was released earlier this year in 
February. Table 13, which details the percentage of Census Tracts with 
Residential Fixed High-Speed Connections related to the number of 
providers, indicates that 26 percent of census tracts have three 
broadband providers and only 1.1 percent of census tracts have no 
broadband provider.

    Table 13.--Percentage of Census Tracts with Residential Fixed High-Speed Connections by Technology as of
                                                December 31, 2008
                              (Connections over 200 kbps in at least one direction)
----------------------------------------------------------------------------------------------------------------
                                                                      Number of Providers
                                              ------------------------------------------------------------------
                  Technology                                                                            Seven or
                                                Zero     One     Two    Three   Four    Five     Six      More
----------------------------------------------------------------------------------------------------------------
aDSL                                              4.3    40.7    38.4    13.4     2.7     0.4     0.1        0.0
sDSL                                             96.0     3.8     0.2     0.0     0.0     0.0     0.0        0.0
Other Wireline                                   99.2     0.8     0.0     0.0     0.0     0.0     0.0        0.0
Cable Modem                                       8.6    79.3    11.6     0.6     0.0     0.0     0.0        0.0
FTTP                                             86.7    13.0     0.2     0.0     0.0     0.0     0.0        0.0
Satellite                                        45.2    24.6    24.5     5.6     0.0     0.0     0.0        0.0
Fixed Wireless                                   87.3    10.2     2.0     0.4     0.1     0.0     0.0        0.0
Power Line                                       99.8     0.2     0.0     0.0     0.0     0.0     0.0        0.0
aDSL and/or Cable Modem and/or FTTP               1.5     6.6    34.7    35.7    16.2     4.3     0.8        0.2
Any Technology                                    1.1     2.6    15.1    25.7    26.1    16.7     7.9        4.8
----------------------------------------------------------------------------------------------------------------
Note: Figures may not sum to totals due to rounding.
Sources: FCC Form 477, Part VI and Census 2000.

    Can you clarify the differences in the data sets? Which is more 
accurate in detailing the number of broadband providers consumers have 
available to them?
    Answer. Table 13 displays data that broadband providers submit to 
the FCC on Form 477. This data collection requires providers to show 
the number of customers by technology and speed tier for each census 
tract in which they offer service. The table then shows the percent of 
tracts with a given number of providers for each of these technologies.
    The NBP highlights a shortcoming of this approach (Ch 4, endnote 
6). It states that ``. . . the new 477 data are not ideal for analyzing 
competition because the data identify providers that operate anywhere 
in a Census tract and not whether their service areas overlap 
geographically.'' So while over half of the census tracts have four or 
more providers their service territories have an unknown but likely 
limited overlap.
    The NBP (Exhibit 4-A) depicts share of housing units in tracts with 
0-3 providers. In partial explanation of how the NBP derived these 
numbers the endnote states ``First, we do not count providers with less 
than 1 percent of broadband subscriptions in a given Census tract under 
the assumption that a provider, with such a small number of subscribers 
is probably not available to a large part of the tract. Second, we 
identify cable overbuilders (such as RCN) in the data, which allows us 
to make reasonable assumptions about where cable companies actually 
provide service to the same geographic areas. Specifically, we assume 
that any given area is served by a maximum of one facilities-based DSL 
provider and one cable provider unless a cable overbuilder is present, 
in which case we count both cable providers. We also count fiber-
specific competitors, but do not double-count telco providers that 
offer both DSL and fiber in the same tract (such as Verizon DSL and 
FiOS).''

    Question 13. Another table (Table 10) in the report shows that the 
number of broadband providers has increased from 1,270 in June 2005 to 
1,554 in December 2008--a 22 percent increase over 3 and a half years.

           Table 10.--Nationwide Number of Providers of High-Speed Connections by Technology 2005-2008
                       (Connections over 200 kbps in at least one direction, in thousands)
----------------------------------------------------------------------------------------------------------------
                                                       2005            2006            2007            2008
                   Technology                    ---------------------------------------------------------------
                                                    Jun     Dec     Jun     Dec     Jun     Dec     Jun     Dec
----------------------------------------------------------------------------------------------------------------
aDSL                                                 758     818     833     858     864     856     863     879
sDSL                                                 270     269     256     257     242     233     238     262
Other Wireline                                       206     241     246     256     246     250     259     290
Cable Modem                                          227     242     254     279     282     292     296     341
FTTP                                                 138     170     187     222     251     276     308     430
Satellite                                             10       4       5       5       5       5       4       5
Fixed Wireless                                       423     463     452     505     484     514     505     617
Mobile Wireless                                       13      15      19      24      19      22      24      46
Power Line and Other                                  18       7       6       6       6       7       6       5
    Total                                          1,270   1,345   1,327   1,396   1,374   1,399   1,395   1,554
----------------------------------------------------------------------------------------------------------------
Note: Multiple Form 477 filers within a holding company structure count as one provider.
Source: FCC Form 477, Part I.

    From the FCC's point of view is the broadband industry becoming 
more competitive and do consumers have more options for broadband 
providers available to them?
    Answer. The Plan recognizes that competition is crucial for 
promoting consumer welfare and spurring innovation and investment in 
broadband access networks. Competition provides consumers the benefits 
of choice, better service and lower prices. The Plan analyzed available 
data to assess the current state of competition among wireline 
broadband services and mobile wireless broadband services, and the 
competitive dynamics across different broadband technologies. However, 
the Plan does not analyze the market power of specific companies or 
reach definitive conclusions about the current state of competition for 
residential broadband services. Rather, the Plan includes a variety of 
recommendations designed to spur competition and innovation across the 
three elements of the broadband ecosystem--networks, devices and 
applications.
    With regard to broadband networks, the Plan makes recommendations 
intended to ensure that consumers have the information they need to 
make decisions that maximize benefits from these services. Increased 
transparency will likely drive service providers to deliver better 
value to consumers through better services. The Plan also focuses on 
ways to increase competition in the wholesale broadband market--
including issues associated with high-capacity circuits, copper 
retirement, interconnection and data roaming.
    As the Commission considers rulemakings to implement these 
recommendations, the Commission looks forward to participation from the 
public and interested parties to ensure that the goals of increased 
competition are realized.

    Question 14. Broadband Internet access services are currently 
classified as information service, which is defined as ``the offering 
of a capability for generating, acquiring, storing, transforming, 
processing, retrieving, utilizing, or making available information via 
telecommunications, and includes electronic publishing.''
    Some have suggested reclassifying broadband as a telecommunications 
service, which is defined as ``the transmission, between or among 
points specified by the user, of information of the user's choosing, 
without change in the form or content of the information as sent and 
received.''
    Without question, there has been a significant evolution in the 
telecommunications industry and the networks--from the legacy tip & 
ring circuit-switched PSTN voice network to the high-bandwidth, dynamic 
routing, IP packet-based networks of today, where there is a 
convergence of various data types. Today's broadband networks employ 
numerous protocols, various caching and queuing technologies, DNS/IP 
addressing, as well as encoding and decoding (codecs) technologies that 
allow consumers to utilize countless services and applications online. 
Very simply, there is an extensive amount of processing, storing, and 
converting activities on a broadband network than the legacy phone 
network with regards to the User Network Interface (UNI) connection. In 
your opinion and from a pure definitional standpoint, which definition 
is more appropriate for broadband access services? Do you believe a new 
definition or classification (such as ``Internet Service'' or 
``Broadband Service'') may be required to better reflect broadband 
Internet access services?
    Answer. In the Brand X decision, 454 U.S. 967 (2005), the Supreme 
Court held that it is ambiguous whether cable modem service, one form 
of broadband Internet access service, is an integrated information 
service or includes a telecommunications service component.
    A majority of six Justices are on record as saying that 
classification of cable modem service is a call for the FCC to make and 
that ``the Commission is free within the limits of reasoned 
interpretation to change course if it adequately justifies the change'' 
(id. at 1001); one of the six ``just barely'' accepted the FCC's 
information service approach; and the three remaining Justices 
expressed the view that the agency must classify a separable 
telecommunications service within cable modem offerings. In light of 
that decision, I believe the FCC has discretion in deciding whether 
broadband Internet access service includes a telecommunications service 
component.
    As you know, Chairmen Rockefeller, Waxman, Kerry, and Boucher have 
announced they will start a process to develop proposals to update the 
Communications Act. A limited update of the Communications Act could 
lock in an effective broadband framework to promote investment and 
innovation, foster competition, and empower consumers. I have committed 
all available Commission resources to assisting Congress in its 
consideration of how to improve and clarify our communications laws.

    Question 15. Would reclassification of broadband Internet access 
service as a telecommunications service change the ability of service 
providers to deal with online copyright theft? What should be done to 
maximize security for copyright holders from a technology standpoint?
    Answer. I do not believe that classification of the transmission 
component of broadband Internet access service as a telecommunications 
service would have any effect on the ability of service providers to 
deal with online copyright theft. The National Broadband Plan 
recognizes (at page 58) that ``[t]he Internet must be a safe, trusted 
platform for the lawful distribution of content.'' The Plan 
acknowledges (at page 17) that digital piracy is an ongoing problem. 
The Plan notes promising developments in technology to prevent piracy, 
such as content finger-printing, and lauds industry-led initiatives to 
develop guidelines for dealing with piracy. I am hopeful that 
continuing advances in technology, development of industry guidelines, 
and enforcement of copyright laws will curb piracy without stifling 
innovation or overburdening lawful uses of copyrighted works.

    Question 16. Additionally, would reclassification have any 
implications for the ability of service providers to deal with computer 
viruses or spam, or even to implement cybersecurity measures? As a 
member of the Intelligence Committee, I am very interested in 
enhancing--and not impeding--cybersecurity protections, so I look 
forward to your comments on this.
    Answer. As you know, section 1 of the Communications Act explains 
that the Commission exists ``for the purpose of the national defense 
[and] for the purpose of promoting safety of life and property through 
the use of wire and radio communication.'' Cybersecurity is a growing 
concern, and the Commission has recently begun two proceedings to 
assess our needs in this area: we have launched an inquiry on the 
ability of existing broadband networks to withstand significant damage 
or severe overloads as a result of natural disasters, terrorist 
attacks, pandemics or other major public emergencies; and we have begun 
a proceeding to seek public comment on the proposed creation of a new 
voluntary cybersecurity certification program that would encourage 
communications service providers to implement a full range of 
cybersecurity best practices. We will examine the records of these 
proceedings closely, along with the record generated in response to the 
Notice of Inquiry on our legal framework. To the extent that the 
Commission possessed the necessary authority to address cybersecurity, 
as well as online copyright theft, computer viruses or spam before 
Comcast, the ``third way'' classification framework discussed in the 
Notice of Inquiry on our legal framework would protect that authority. 
If, on the other hand, the Commission decides to maintain the 
information service classification, jurisdictional issues would be 
addressed on a case-by-case basis, in light of the particular details 
of the proposal at issue.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Ensign to 
                        Hon. Julius Genachowski

    Question 1. Chairman Genachowski, last month the Washington Post 
wrote that ``it is curious that the [FCC] faults the market for 
failing'' when ``the number of Americans who have broadband at home has 
grown from 8 million in 2000 to nearly 200 million last year.'' The 
National Broadband Plan itself notes that broadband providers invested 
$130 billion into their networks over the last 2 years, during a major 
recession. I have to agree with the Washington Post editorial board--I 
don't see signs of gross market failure that might justify the sort of 
government spending and increased government intervention recommended 
by the Plan. How is it that you and your team came to such a different 
conclusion?
    Answer. In the Recovery Act, Congress directed the FCC to develop a 
National Broadband Plan that would ``seek to ensure that all people of 
the United States have access to broadband capability and [to] 
establish benchmarks for meeting that goal,'' as well as promote the 
use of broadband infrastructure in advancing a number of national 
purposes like health care delivery, education, and energy independence 
and efficiency.
    In 2009, I said that our steps to fulfill this Congressional 
directive would be data-driven--not starting with conclusions, but 
using data to develop analysis--not just accepting data, but digging 
into data to find concrete solutions that supersede ideology--and that 
can make a difference in the lives of real Americans.
    To complete the Plan, the FCC launched 36 staff-level public 
workshops attracting over 2,500 participants; issued 31 Public Notices, 
generating over 23,000 comments totaling more than 74,000 pages; and 
used new media tools including our broadband blog, which received over 
1,200 comments, all of which were entered into the official record.
    The data we gathered from this process showed that on many 
quantifiable metrics, the United States faced significant gaps. The FCC 
team found that roughly 14 to 24 million Americans lack access to 
broadband infrastructure that can support today's applications, and 
that roughly 80 million American adults still do not use broadband at 
home. Only 16 percent of public community colleges have high-speed 
connections comparable to research universities. And nearly a decade 
after 9/11, the Nation's first responders still lack access to a 
nationwide, interoperable wireless public safety network.
    To be sure, today's broadband ecosystem is vibrant and healthy in 
many ways--in large part, due to the large investments that private 
sector providers have made. In order to meet the high goals for 
American technological leadership that we set in the Plan, private 
sector investment will be essential. That's why the plan takes steps to 
drive innovation and investment in the broadband ecosystem long into 
the future--yielding innovations, devices and services we cannot dream 
of today. These solutions--making 500 MHz of spectrum available for 
mobile broadband use and reforming the Universal Service Fund in a 
revenue-neutral manner to make broadband available to every American--
are not intended to displace the role of private investment. Rather, 
they are targeted to maximize the fruits of that investment in a way 
that speeds the deployment, adoption and use of broadband in the ways 
Congress intended and for the benefit of all Americans.

    Question 2. Chairman Genachowski, one of the National Broadband 
Plan's goals is to have 100 million households served by 100 megabit 
broadband within 10 years. Achieving this goal will obviously require 
tens of billions of dollars to be invested into broadband networks. The 
Plan, however, recommends net neutrality restrictions; suggests broader 
unbundling mandates; and leaves the door open to using outdated 
monopoly telephone regulations for broadband. Most people I talk to say 
that heavy-handed regulations like these will deter the private-sector 
investment you need to reach your 100 to 100 target. If such policies 
would result in less investment, isn't the FCC be undermining its own 
goals by pursuing these regulatory policies?
    Answer. I start with the belief that the private sector must play 
the leading role in extending broadband networks across our nation, to 
ensure we realize our ambitious 100 X 100 goal. Promoting private 
sector investment is a key focus of the National Broadband Plan and a 
key priority for the FCC, including through initiatives to reduce 
barriers to broadband deployment; reform the Universal Service Fund to 
support broadband; and provide high-level rules of the road to preserve 
the free and open Internet as an engine for economic growth and private 
investment, both in and on top of broadband Internet platforms.

    Question 3. Chairman Genachowski, in your testimony before the 
House Commerce Committee, you left the door open to pursuing 
involuntary proposals to reallocate broadcaster spectrum. While you and 
I agree on the importance of finding more spectrum for wireless 
broadband, I believe we must exhaust every possible voluntary proposal 
before even talking about involuntary mechanisms. Do you agree? And if 
so, will you commit to us today that you will not consider m 
involuntary proposals until the FCC has completed its consideration and 
implementation of all possible voluntary mechanisms?
    Answer. I believe, and the staff at the FCC believes, that a 
voluntary approach can work, and our goal is to first employ all 
possible voluntary mechanisms. We believe a voluntary approach with 
proceeds sharing will allow the market to determine the best use of 
spectrum, allowing the right amount of spectrum demanded by the market 
to flow to its highest valued use, while creating value for everyone in 
that chain of stakeholders (broadcasters, consumers, and broadband 
providers).
                                 ______
                                 
 Response to Written Questions Submitted by Hon. George S. LeMieux to 
                        Hon. Julius Genachowski

    Question 1. Last year, Congress approved a stimulus bill directing 
more than $7 billion in funding for broadband deployment. While some of 
the funds have now gone out, the funding did not go out quickly, and 
many of the largest broadband providers would not participate. Since 
this money was allocated before this plan was created, are you 
concerned that billions of dollars in funding are being misspent in a 
fashion that is devoid of a strategic plan? Has your staff been 
coordinating with the Department of Commerce and the Department of 
Agriculture to ensure that their funding plans complement the broadband 
plan we are considering today?
    Answer. The Commission coordinated extensively with the Executive 
Branch and provided its technical and other expertise to the 
Departments of Commerce and Agriculture during the development of their 
Recovery Act grant and loan programs, and our agencies remain in 
contact on matters of broadband policy. While the grant and loan 
programs were implemented prior to the completion of the National 
Broadband Plan, as required by law, I believe that those programs are 
complementary to the proposals in the Plan. The plan explicitly 
mentions the BTOP program in several places, highlighting how this 
first investment in broadband will impact the broadband ecosystem, and 
how best to measure and learn from those early investments to improve 
decisions in the future. In addition, the Plan emphasizes the 
importance of deploying facilities to consumers who do not have access 
to broadband or who face other obstacles to adoption, such as 
affordability, and recommends a variety of different tools to advance 
these goals.

    Question 2. As you know, spectrum availability has been of concern 
as our Nation's technologies develop. We must be working to find ways 
to free up spectrum for new technologies. In the National Broadband 
Plan, it is stated that to free up spectrum broadcasters will be asked 
to volunteer to give up some of their spectrum (of which they already 
gave some up for the digital transition). What is the plan should these 
broadcasters not volunteer more of their spectrum?
    Answer. I believe, and the staff at the FCC believes, that a 
voluntary approach can work, and our goal is to first employ all 
possible voluntary mechanisms. We believe a voluntary approach with 
proceeds sharing will allow the market to determine the best use of 
spectrum, allowing the right amount of spectrum demanded by the market 
to flow to its highest valued use, while creating value for everyone in 
that chain of stakeholders (broadcasters, consumers, and broadband 
providers). We intend to focus our efforts on voluntary mechanisms so 
as to best ensure their success.

    Question 3. As you know, in recent years, Internet piracy and 
intellectual property protection has been a mounting problem. The 
National Broadband Plan would be a perfect opportunity o address this 
issue. The current plan does not mention piracy and has little mention 
of intellectual property protections. Why was there no acknowledgement 
in your plan of the piracy problems that plague our entertainment and 
software companies online? With the rollout of this plan, almost every 
American will have access to broadband. With greater broadband speeds 
and availability, what is being done to protect the content from being 
stolen?
    Answer. The National Broadband Plan recognizes (at page 58) that 
``[t]he Internet must be a safe, trusted platform for the lawful 
distribution of content.'' The Plan acknowledges (at page 17) that 
digital piracy is an ongoing problem. The Plan notes promising 
developments in technology to prevent piracy, such as content finger-
printing, and lauds industry-led initiatives to develop guidelines for 
dealing with piracy. The Plan does not include any specific 
recommendations for ensuring that expanding broadband deployment will 
not increase the amount of piracy of copyrighted works. I am hopeful 
that continuing advances in technology, development of industry 
guidelines, and enforcement of copyright laws will curb piracy without 
stifling innovation or overburdening lawful uses of copyrighted works.

    Question 4. Do you believe public safety needs or will need more 
than 10 MHz of spectrum for voice, video, and data? If yes, by when? If 
they do, then why not just allocate the spectrum now? Why should we try 
to solve this problem later if we already have the solution in front of 
us now? Will it not cost more to solve the problem later and create 
problems with interoperability because systems will be on different 
spectrum bands?
    Answer. Currently there is 10 MHz of dedicated capacity in the 700 
MHz band available for use for public safety broadband communications. 
This spectrum is available today and, because of its propagation and 
other technical attributes, provides a solid platform for deployment of 
a nationwide, interoperable public safety broadband network. This 10 
MHz of dedicated capacity is the necessary core on which to build the 
public safety network and will provide public safety with more than 
adequate capacity and performance required to support day-to-day and 
emergency communications.
    Technology advances in the LTE air-interface standard will likely 
make it possible for non-contiguous spectrum to be part of the network. 
Accordingly, should additional capacity be required in the future, this 
technology, in conjunction with the interoperability requirements 
imposed by the FCC's Emergency Response Interoperability Center will 
ensure that interoperability is not compromised.
    The 700 MHz band, where this spectrum is located, is particularly 
exciting as new 4G technologies, such as LTE, are just beginning to be 
deployed to support advanced data communications. Public safety, by 
being able to deploy their networks now and in the near future, can 
capitalize on these technologies and this commercial deployment, 
ensuring a technological evolution path and reducing costs by 
leveraging these commercial technologies.
    More specifically, in deploying its network in this core spectrum, 
public safety can enter into incentive-based partnerships with 
commercial entities to deploy their network in a cost-effective manner 
that utilizes these state-of-the-art commercial 4G technologies and 
leverages commercial infrastructure. In this way, public safety will 
recognize approximately $9 billion in cost savings for the construction 
of the network and potentially tens of billions in savings in operating 
costs. Unfortunately, as I will discuss a little later, if the D block 
is reallocated to the public safety community, it is likely that these 
cost savings will not be recognized because significant cost-
efficiencies will squandered. If this occurs, the mere expense of the 
network will make it extremely unlikely that the network will be 
nationwide, leaving portions of the country without access to these 
critical public safety communications services.
    FCC technical staff has spent considerable time and effort ensuring 
that the 10 MHz of dedicated spectrum available to public safety will 
provide more then adequate capacity and performance for day-to-day and 
emergency communications. Our analysis, which we released publicly this 
week, demonstrates through the examination of several real-life large-
scale emergencies, that allowing public safety to build out their 
broadband network on the core 10 MHz of dedicated spectrum supports 
these critical communications requirements. When analyzing capacity, an 
important point to keep in mind is that spectrum does not equal 
capacity. By deploying advanced, 4G wireless technologies and cellular 
network architecture, public safety can achieve much greater capacity 
than they have achieved in the past. Further, based on the past 
evolutionary trends of commercial technologies, if the public safety 
network is deployed utilizing non-proprietary commercial technologies, 
capacity and performance of the network is likely to improve in the 
same amount of spectrum.
    However, we also recognize that it is impossible to plan for the 
worst emergency. Accordingly, it is critical to provide public safety 
with a backstop of additional capacity for use when they need it such 
as when their network is at capacity or otherwise unavailable. 
Accordingly, the FCC is planning to shortly initiate a rulemaking 
proceeding that will require commercial operators across the 700 MHz 
band to provide public safety with roaming and priority access on their 
networks at reasonable rates. This means that public safety will have 
access to as much as 60 MHz of additional spectrum--far more then the 
10 MHz of spectrum available in the D block. Further, unlike the case 
of just reallocating the D block, roaming and priority access will 
provide public safety with access to resilient networks in case their 
network is rendered unavailable.
    Still, there are additional pieces to ensure adequate capacity and 
performance. First, our cost model recognizes and captures the need for 
deployable caches of communications equipments, such as cell towers on 
wheels, to ensure that the public safety community is able to 
supplement its network during the worst emergencies.
    Second, we have also recommended that states and localities should 
include in their building codes requirements for the installation of 
in-building transmitters.

    Question 5. The National Broadband Plan seems to place a heavy 
emphasis on public safety having priority access to commercial networks 
to augment the 10 MHz of dedicated public safety broadband spectrum. 
How can you be sure that commercial carriers will be willing to provide 
that access?
    Answer. The Commission will soon commence a proceeding to require 
commercial networks to offer public safety users priority access and 
roaming capabilities at reasonable rates. This will ensure that 
critical communications needs can be met even when public safety 
broadband networks are at capacity or unavailable.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. David Vitter to 
                        Hon. Julius Genachowski

    Question 1. The FCC's recently released National Broadband Plan 
makes numerous references to several internal reports prepared by the 
Omnibus Broadband Team as support for its recommendations.

   The Broadband Availability Gap Report, cited 22 times

   Broadband Performance Report

   Spectrum Reclamation: Options for Broadcast Spectrum Report

   The Public Safety Broadband Wireless Network Report

    I understand that these reports still have not been made available. 
Is this true, when do you expect to release these reports so Congress 
and the public can begin the process of reviewing the analysis 
underlying the recommendations contained in the Plan?
    Answer. The Broadband Availability Gap Report was released April 
21, 2010. The Public Safety Broadband Wireless Network Report was 
released April 23, 2010. They are available for download at http://
www.broadband.gov/plan/broadband-working-reports-technical-papers.html.
    The FCC has already held an open workshop on the Broadband 
Availability Gap Report to present the broadband team's analysis and 
take questions from the public.
    The release dates for the Spectrum Reclamation: Options for 
Broadcast Spectrum Report and the Broadband Performance Report are 
forthcoming.

    Question 2. I know the plan's goal is to reach 100 million 
households with 100 Mbps service. Some analysts believe that we may be 
on path to reach this goal with current market conditions. Wouldn't it 
be preferable to let the market investment work instead changing the 
broadband regulatory structure in a way that many think could provide 
disincentives to investment?
    Answer. I agree that we should let the market work where it can 
effectively promote innovation, investment, deployment, and provide 
consumers with reasonable, affordable choices. As the Commission works 
through the implementation of the National Broadband Plan 
recommendations, we will take care to ensure that our policies 
encourage investment and deployment, promote innovation, and allow 
consumers to enjoy the benefits of next generation broadband services.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Sam Brownback to 
                        Hon. Julius Genachowski

    Question 1. In response to a question I asked you during this 
committee's consideration of your nomination, you stated that you 
``agree that unthinking or heavy-handed regulation always carries the 
risk of burdening innovation, investment, and dynamism--and that the 
FCC must be vigilant in guarding against such an approach.''
    I have therefore been surprised about several initiatives you have 
taken, or are considering since becoming Chairman. You launched into a 
rulemaking proceeding on network neutrality before having gathered any 
facts regarding whether there is a problem that needs a regulatory 
solution. Now that the D.C. Circuit has rejected the FCC's assertion of 
authority to impose network management regulations on broadband 
providers, you are allegedly considering reclassifying broadband 
services as telecommunications services, saddling such services with 
common carrier regulations. And some of your recommendations in the 
National Broadband Plan, such as fiber unbundling, contemplate 
eradicating the extremely successful broadband policies that began 
under Chairman Kennard in the Clinton Administration.
    I was glad during your confirmation process that you recognized 
that heavy-handed regulation runs ``the risk of burdening innovation, 
investment, and dynamism.'' But you seem to be heading in that very 
direction, despite the impact that such regulation would have on your, 
and the Obama Administration's, broadband goals. How are you going to 
achieve ubiquitous broadband deployment when, by your own admission, 
you are risking investment by imposing burdensome regulations?
    Answer. Promoting continued investment and job creation, both in 
the core broadband networks and through Internet-based services and 
applications that ride on such networks, is a key priority for the FCC 
and a key focus of the National Broadband Plan. On June 17, the 
Commission adopted a Notice of Inquiry on a Legal Framework for 
Broadband. This Notice initiates an agency proceeding to seek public 
comment on how the Commission should best address the challenge that 
the D.C. Circuit's Comcast decision has handed us, including how the 
agency can foster predictability and promote innovation and investment. 
It seeks comment on all options, and invites any ideas for how the 
Commission should proceed, including: maintaining the current 
``information service'' classification of services such as cable modem 
and DSL Internet access; classifying broadband Internet connectivity 
service as a ``telecommunications service'' to which all the 
requirements of Title II of the Communications Act would apply; and a 
``third way''--similar to the highly successful approach that has been 
used for cell phone services since 1993--under which the Commission 
would identify the Internet connectivity service that is offered as 
part of wired broadband Internet service as a telecommunications 
service and forbear from applying all provisions of Title H other than 
the small number that are needed to implement fundamental universal 
service, competition, and consumer protection policies.

    Question 2. If broadband were to be reclassified as 
telecommunications service, do you think broadband service providers 
would increase investment in their networks? Please explain your 
answer.
    Answer. These issues are addressed in my answer to Question 1 above 
and in the statements released by myself (Genachowski Statement) and 
the FCC's General Counsel, Austin Schlick (Schlick Statement), on May 
6, 2010, concerning the ``Third Way.'' Copies are attached for your 
convenience. I believe the ``Third Way'' I have proposed, would 
encourage investment in broadband networks by providing regulatory 
certainty, avoiding needless regulation, and enabling the provision of 
universal service support for broadband deployment. I would also note 
that the Third Way is modeled on the light touch regulatory treatment 
for the wireless industry that many have cited as pro-investment and 
pro-innovation. I remain open to other ideas that will achieve the same 
objective and provide a sound legal framework, and the Notice of 
Inquiry adopted at our June 17 Open Meeting seeks comment on all 
possible approaches, including maintaining the current information 
services classification for broadband Internet services.

    Question 3. Do you believe that a reclassification of broadband 
services would survive a court challenge? Are you willing to endure 
years of uncertainty waiting for an answer?
    Answer. I am confident that any decision the FCC issues that 
addresses or relies on Commission authority to implement broadband 
policies will be challenged in court. For the reasons given in the May 
6, 2010 statement by the FCC's General Counsel, I believe that 
classification of the transmission component of wireline broadband 
Internet access service as a telecommunications service would survive 
judicial review. See Schlick Statement at 6-7.

    Question 4. In the Comcast case, the D.C. Circuit held that the FCC 
had not demonstrated that its regulation of the network management 
activities of ISPs was reasonably ancillary to express authority 
provided to the FCC by Congress. But the D.C. Circuit reiterated its 
two-part test that the Commission is permitted to exercise ancillary 
authority when: (1) Title I covers a particular entity or activity and 
(2) Commission action is ``reasonably ancillary to the Commission's 
effective performance of its statutorily mandated responsibilities.'' 
Do you agree that the D.C. Circuit's decision does not preclude the 
Commission from exercising ancillary jurisdiction in the future as long 
as the agency ties such authority to its ``statutorily mandated 
responsibilities''?
    Answer. I agree that the Comcast decision does not preclude the 
Commission from exercising ancillary authority to effectuate 
statutorily mandated responsibilities. The Notice of Inquiry adopted on 
June 17, seeks comment on the strongest arguments for use of ancillary 
authority to realize the FCC's mission for broadband communications.

    Question 5. In Comcast, the D.C. Court concluded that ``[b]y 
leaping from Brand X's observation that the Commission's ancillary 
authority may allow it to impose some kinds of obligations on cable 
Internet providers to a claim of plenary authority over such providers, 
the Commission runs afoul of Southwestern Cable and Midwest Video I.'' 
Doesn't this mean that the D.C. Circuit acknowledges that the FCC can 
exercise ancillary authority to impose certain rules, but that the FCC 
must demonstrate that the imposition of such rules is reasonably 
ancillary to the agency's statutorily mandated responsibilities?
    Answer. See Response to Question 3 above.

    Question 6. According to Commissioner McDowell's March testimony at 
the House Energy and Commerce Committee, ``[m]ore than half of all 
Americans have a choice of five wireless providers. Ninety-four percent 
have a choice of four. Similarly, we lead the world in 3G build-out and 
adoption.'' In addition, Commissioner McDowell asserts that ``[n]ot 
only does the United States have one-third of the world's market share 
of ``mobile apps,'' but the American mobile app market has grown over 
500 percent since 2007.'' Given these facts, how did the report 
conclude that the United States lags in mobile innovation?
    Answer. The National Broadband Plan stated that ``[t]he United 
States maintains the greatest tradition of innovation and 
entrepreneurship in the world--one that combines creativity with 
engineering to produce world-leading applications, devices and content, 
as well as the businesses that bring them to market.''
    However, innovation will be constrained if the FCC does not make 
additional spectrum available. As the Plan states, ``Mobile broadband 
is growing at unprecedented rates. . . playing an increasingly 
important role in our lives and our economy. Mobile broadband is the 
next great challenge and opportunity for the United States. It is a 
nascent market in which the United States should lead.'' Today, the FCC 
has only 50 megahertz of spectrum in the pipeline that it can assign 
for broadband use, just a fraction of the amount that will be necessary 
to match growing demand. As a result, companies representing 5 percent 
of the U.S. economy asked the FCC to make more spectrum available for 
mobile broadband, saying that ``without more spectrum, America's global 
leadership in innovation and technology is threatened.''
    If we do not make more spectrum available, scarcity of mobile 
broadband could mean higher prices, poor service quality, an inability 
for the United States to compete internationally, depressed demand, and 
ultimately, a drag on innovation.
    The Plan concludes that ``[b]y any measure, innovation is thriving 
in mobile and computing devices.'' I look forward to working with 
Congress, the industry and stakeholders to ensure that the United 
States has the spectrum it needs to lead the world in mobile 
innovation, with the fastest and most extensive wireless networks of 
any nation.
                                 ______
                                 

         The Third Way: A Narrowly Tailored Broadband Framework

Chairman Julius Genachowski--Federal Communications Commission--May 6, 
                                  2010

    Many have asked about the FCC's next steps in view of the recent 
decision in the Comcast case. I'll describe here a path forward, which 
will begin with seeking public comment on a post-Comcast legal 
foundation for the FCC's approach to broadband communications services. 
The goal is to restore the broadly supported status quo consensus that 
existed prior to the court decision on the FCC's role with respect to 
broadband Internet service.
    This statement describes a framework to support policies that 
advance our global competitiveness and preserve the Internet as a 
powerful platform for innovation, free speech, and job creation. I 
remain open to all ideas on the best approach to achieve our country's 
vital goals with respect to high-speed broadband for all Americans, and 
the Commission proceeding to follow will seek comment on multiple legal 
theories and invite new ideas.

The FCC's Mission
    More than 75 years ago, Congress created the Federal Communications 
Commission with an explicit mission: ``to make available, so far as 
possible, to all people of the United States . . . A rapid, efficient, 
Nation-wide, and world-wide wire and radio communications service with 
adequate facilities at reasonable charges, for the purpose of the 
national defense, [and] for the purpose of promoting the safety of life 
and property through the use of wire and radio communication.''
    In the decades since, the technologies of communications have 
changed and evolved--from telephone, radio, and broadcast TV to cable, 
satellite, mobile phones, and now broadband Internet. With the guidance 
of Congress, the Commission has tailored its approach to each of these 
technologies. But the basic goals have been constant: to encourage 
private investment and the building of a communications infrastructure 
that reaches all Americans wherever they live; to pursue meaningful 
access to that infrastructure for economic and educational opportunity 
and for full participation in our democracy; to protect and empower 
consumers; to promote competition; to foster innovation, economic 
growth, and job creation; and to protect Americans' safety.

The Consensus Understanding of the FCC's Role with Respect to Broadband
    A challenge for the FCC in recent years has been how to apply the 
time-honored purposes of the Communications Act to our 21st Century 
communications platform--broadband Internet--access to which is 
generally provided by the same companies that provide telephone and 
cable television services.
    Broadband is increasingly essential to the daily life of every 
American. It is fast becoming the primary way we as Americans connect 
with one another, do business, educate ourselves and our children, 
receive health care information and services, and express our opinions. 
As a unanimous FCC said a few weeks ago in our Joint Statement on 
Broadband, ``Working to make sure that America has world-leading high-
speed broadband networks--both wired and wireless--lies at the very 
core of the FCC's mission in the 21st Century.''
    Over the past decade and a half, a broad consensus in the public 
and private sectors has developed about the proper role and authority 
for the FCC regarding broadband communications. This bipartisan 
consensus, which I support, holds that the FCC should adopt a 
restrained approach to broadband communications, one carefully balanced 
to unleash investment and innovation while also protecting and 
empowering consumers.
    It is widely understood--and I am of the view--that the extreme 
alternatives to this light-touch approach are unacceptable. Heavy-
handed prescriptive regulation can chill investment and innovation, and 
a do-nothing approach can leave consumers unprotected and competition 
unpromoted, which itself would ultimately lead to reduced investment 
and innovation.
    The consensus view reflects the nature of the Internet itself as 
well as the market for access to our broadband networks. One of the 
Internet's greatest strengths--its unprecedented power to foster 
technological, economic, and social innovation--stems in significant 
part from the absence of any central controlling authority, either 
public or private. The FCC's role, therefore should not involve 
regulating the Internet itself.
    Consumers do need basic protection against anticompetitive or 
otherwise unreasonable conduct by companies providing the broadband 
access service (e.g., DSL, cable modem, or fiber) to which consumers 
subscribe for access to the Internet. It is widely accepted that the 
FCC needs backstop authority to prevent these companies from 
restricting lawful innovation or speech, or engaging in unfair 
practices, as well as the ability to develop policies aimed at 
connecting all Americans to broadband, including in rural areas.

The Broadband Policy Agenda
    Consistent with this consensus view of the FCC's role, Congress 
last year directed the FCC to develop America's first National 
Broadband Plan, which we delivered in March. And I have described over 
the past months the policy initiatives I believe are of crucial 
importance to our global competitiveness, job creation, and broad 
opportunity. These include:

   Extending broadband communications to all Americans, in 
        rural and urban America and in between, by transforming the $9 
        billion Universal Service Fund from supporting legacy telephone 
        service to supporting broadband communications service;

   Protecting consumers and promoting healthy competition by, 
        for example, providing greater transparency regarding the 
        speeds, services, and prices consumers receive, and ensuring 
        that consumers--individuals as well as small businesses--are 
        treated honestly and fairly;

   Empowering consumers to take control of their personal 
        information so that they can use broadband communications 
        without unknowingly sacrificing their privacy;

   Lowering the costs of investment--for example, through smart 
        policies relating to rights-of-way--in order to accelerate and 
        extend broadband deployment;

   Advancing the critical goals of protecting Americans against 
        cyber-attacks, extending 911 coverage to broadband 
        communications, and otherwise protecting the public's safety; 
        and

   Working to preserve the freedom and openness of the Internet 
        through high-level rules of the road to safeguard consumers' 
        right to connect with whomever they want; speak freely online; 
        access the lawful products and services of their choice; and 
        safeguard the Internet's boundless promise as a platform for 
        innovation and communication to improve our education and 
        health care, and help deliver a clean energy future.

    At the same time, I have been clear about what the FCC should not 
do in the area of broadband communications: For example, FCC policies 
should not include regulating Internet content, constraining reasonable 
network management practices of broadband providers, or stifling new 
business models or managed services that are pro-consumer and foster 
innovation and competition. FCC policies should also recognize and 
accommodate differences between management of wired networks and 
wireless networks, including the unique congestion issues posed by 
spectrum-based communications. The Internet has flourished and must 
continue to flourish because of innovation and investment throughout 
the broadband ecosystem: at the core of the network, at its edge, and 
in the cloud.
    These policies reflect an essential underlying regulatory 
philosophy:

   A strong belief in the free market and in private investment 
        as essential and powerful engines of economic growth;

   An embrace of the view that a healthy return-on-investment 
        is a necessary and desirable incentive to risk-taking and 
        deployment of capital;

   A recognition of the powerful role entrepreneurs, 
        innovators, startups and small businesses must play in fueling 
        American economic success; and

   An understanding that government has a vital but limited 
        role in advancing common goals, for example by helping tackle 
        core infrastructure and public safety challenges; providing 
        basic rules of the road to enable markets to work fairly; 
        acting in a properly calibrated way when necessary to protect 
        consumers and promote competition, investment, and innovation--
        and otherwise getting out of the way of the entrepreneurial 
        genius and free market that is America's greatest competitive 
        advantage.
Implications of Comcast v. FCC
    The recent court opinion in Comcast v. FCC does not challenge the 
longstanding consensus about the FCC's important but restrained role in 
protecting consumers, promoting competition, and ensuring that all 
Americans can benefit from broadband communications. Nor does it 
challenge the commonsense policies we have been pursuing.
    But the opinion does cast serious doubt on the particular legal 
theory the Commission used for the past few years to justify its 
backstop role with respect to broadband Internet communications. The 
opinion therefore creates a serious problem that must be solved so that 
the Commission can implement important, commonsense broadband policies, 
including reforming the Universal Service Fund to provide broadband to 
all Americans, protecting consumers and promoting competition by 
ensuring transparency regarding broadband access services, safeguarding 
the privacy of consumer information, facilitating access to broadband 
services by persons with disabilities, protecting against cyber-
attacks, ensuring next-generation 911 services for broadband 
communications, and preserving the free and open Internet.
    The legal theory that the Comcast opinion found inadequate has its 
roots in a series of controversial decisions beginning in 2002 in which 
the Commission decided to classify broadband Internet access service 
not as a ``telecommunications service'' for purposes of the 
Communications Act, but as something different--an ``information 
service.''
    As a result of these decisions, broadband became a type of service 
over which the Commission could exercise only indirect ``ancillary'' 
authority, as opposed to the clearer direct authority exercised over 
telecommunications services. Importantly, at the time, supporters of 
this ``information services'' approach clearly stated that the FCC's 
so-called ``ancillary'' authority would be more than sufficient for the 
Commission to play its backstop role with respect to broadband access 
services and pursue all sensible broadband policies.
    The Commission's General Counsel and many other lawyers believe 
that the Comcast decision reduces sharply the Commission's ability to 
protect consumers and promote competition using its ``ancillary'' 
authority, and creates serious uncertainty about the Commission's 
ability, under this approach, to perform the basic oversight functions, 
and pursue the basic broadband-related policies, that have been long 
and widely thought essential and appropriate.
    This undermining of settled understandings about the government's 
role in safeguarding our communications networks is untenable. Since 
the decision, lawyers from every quarter of the communications 
landscape have been debating a difficult and technical legal question: 
What is the soundest and most appropriate legal grounding to let the 
FCC carry out what almost everyone agrees to be necessary functions 
regarding broadband communications?

The Conventional Options
    Two primary options have been debated since the Comcast decision:
    One, the Commission could continue relying on Title I ``ancillary'' 
authority, and try to anchor actions like reforming universal service 
and preserving an open Internet by indirectly drawing on provisions in 
Title II of the Communications Act (e.g., sections 201, 202, and 254) 
that give the Commission direct authority over entities providing 
``telecommunications services.''
    Two, the Commission could fully ``reclassify'' Internet 
communications as a ``telecommunications service,'' restoring the FCC's 
direct authority over broadband communications networks but also 
imposing on providers of broadband access services dozens of new 
regulatory requirements.
    I have serious reservations about both of these approaches.
    The FCC General Counsel advises that under the first option, 
continuing to pursue policies with respect to broadband Internet access 
under the ancillary authority approach has a serious risk of failure in 
court. It would involve a protracted, piecemeal approach to defending 
essential policy initiatives designed to protect consumers, promote 
competition, extend broadband to all Americans, pursue necessary public 
safety measures, and preserve the free and open Internet.
    The concern is that this path would lead the Commission straight 
back to its current uncertain situation--and years will have passed 
without actually implementing the key policies needed to improve 
broadband in America and enhance economic growth and broad opportunity 
for all Americans.
    Meanwhile, the second option, fully reclassifying broadband 
services as ``telecommunications services'' and applying the full suite 
of Title II obligations, has serious drawbacks. While it would clarify 
the legal foundation for broadband policy, it would also subject the 
providers of broadband communications services to extensive regulations 
ill-suited to broadband. Title II, for example, includes measures that, 
if implemented for broadband, would fail to reflect the long-standing 
bipartisan consensus that the Internet should remain unregulated and 
that broadband networks should have only those rules necessary to 
promote essential goals, such as protecting consumers and fair 
competition.
    Accordingly, I directed the FCC General Counsel and staff to 
identify an approach that would restore the status quo--that would 
allow the agency to move forward with broadband initiatives that 
empower consumers and enhance economic growth, while also avoiding 
regulatory overreach. In short, I sought an approach consistent with 
the longstanding consensus regarding the limited but essential role 
that government should play with respect to broadband communications.
    I am pleased the General Counsel and staff have identified a third-
way approach--a legal anchor that gives the Commission only the modest 
authority it needs to foster a world-leading broadband infrastructure 
for all Americans while definitively avoiding the negative consequences 
of a full reclassification and broad application of Title II.
A Third Way
    As General Counsel Austin Schlick has explained more fully in his 
statement today, under this narrow and tailored approach, the 
Commission would:

   Recognize the transmission component of broadband access 
        service--and only this component--as a telecommunications 
        service;

   Apply only a handful of provisions of Title II (Sections 
        201, 202, 208, 222, 254, and 255) that, prior to the Comcast 
        decision, were widely believed to be within the Commission's 
        purview for broadband;

   Simultaneously renounce--that is, forbear from--application 
        of the many sections of the Communications Act that are 
        unnecessary and inappropriate for broadband access service; and

   Put in place up-front forbearance and meaningful boundaries 
        to guard against regulatory overreach.

    This approach has important virtues.
    First, it will place Federal policy regarding broadband 
communications services, including the policies recommended in the 
National Broadband Plan, on the soundest legal foundation, thereby 
eliminating as much of the current uncertainty as possible. From 
reorienting the Universal Service Fund to support broadband in rural 
America, to adopting focused consumer protection and competition 
policies, to promoting public safety in a broadband world, this 
approach would provide a solid legal basis. In particular, it would 
allow broadband policies to rest on the Commission's direct authority 
over telecommunications services while also using ancillary authority 
as a fallback.
    Second, the approach is narrow. It will treat only the transmission 
component of broadband access service as a telecommunications service 
while preserving the longstanding consensus that the FCC should not 
regulate the Internet, including web-based services and applications, 
e-commerce sites, and online content.
    Third, this approach would restore the status quo. It would not 
change the range of obligations that broadband access service providers 
faced pre-Comcast. It would not give the FCC greater authority than the 
Commission was understood to have pre-Comcast. And it would not change 
established policy understandings at the FCC, such as the existing 
approach to unbundling or the practice of not regulating broadband 
prices or pricing structures. It would merely restore the longstanding 
deregulatory--as opposed to ``no-regulatory'' or ``over-regulatory''--
compact.
    Fourth, the approach would establish meaningful boundaries and 
constraints to prevent regulatory overreach. The FCC would invoke only 
the few provisions necessary to achieve its limited but essential 
goals. Notably, these are the very same provisions (sections 201, 202, 
and 254, for example) that telephone and cable companies agree the FCC 
should invoke, albeit indirectly under an ``ancillary authority'' 
approach. The Commission would take steps to give providers and their 
investors confidence and certainty that this renunciation of regulatory 
overreach will not unravel while also giving consumers, small 
businesses, entrepreneurs and innovators the confidence and certainty 
they need and deserve. Since Congress gave the Commission forbearance 
authority 17 years ago, the Commission has never reversed or undone a 
forbearance decision.
    Fifth, the approach is familiar and has worked well in an analogous 
context--wireless communications. In its approach to wireless 
communications, Congress mandated that the FCC subject wireless 
communications to the same Title II provisions generally applicable to 
telecommunications services while also directing that the FCC consider 
forbearing from the application of many of these provisions to the 
wireless marketplace. The Commission did significantly forbear, and the 
telecommunications industry has repeatedly and resoundingly lauded this 
approach as well-suited to an emerging technology and welcoming to 
investment and innovation. In short, the proposed approach is already 
tried and true.
    Sixth, this approach would allow the Commission to move forward on 
broadband initiatives that are vital for global competitiveness and job 
creation, even as it explores with Congress and stakeholders the 
possibility of legislative clarification of the Communications Act. The 
Communications Act as amended in 1996 anticipated that the FCC would 
have an ongoing duty to protect consumers and promote competition and 
public safety in connection with broadband communications. Should 
Congressional leaders decide to take up legislation in the future to 
clarify the statute and the agency's authority regarding broadband, the 
agency stands ready to be a resource to Congress as it considers any 
such legislative measures. In the interim, however, this approach would 
ensure that key initiatives to address pressing national challenges can 
move forward.
    I will ask my Commission colleagues to join me soon in launching a 
public process, seeking comment on this narrow and tailored approach. 
The proceeding will seek comment regarding the Title I and Title II 
options discussed above, will seek input on important questions such as 
whether wired and wireless broadband access should be treated 
differently in this context, and will invite new ideas. As we move 
forward, my focus will be on the best method for restoring the shared 
understanding of FCC authority that existed before the Comcast decision 
and for putting in place a solid legal foundation for achieving the 
policy goals that benefit consumers and our economy in the most 
effective and least intrusive way.
    The state of our economy and recent events are reminders both of 
the need to be cautious and the necessity of a regulatory backstop to 
protect the American people. I stand ready to explore all constructive 
ideas and expect those who engage with us to do so constructively as 
well. The issues presented by the Comcast decision are a test of 
whether Washington can work--whether we can avoid strawman arguments 
and the descent into hyperbole that too often substitute for genuine 
engagement.
    The Comcast decision has created a serious problem. I call on all 
stakeholders to work with us productively to solve the problem the 
Comcast decision has created in order to ensure a solid legal 
foundation for protecting consumers, promoting innovation and job 
creation, and fostering a world-leading broadband infrastructure for 
all Americans.
                                 ______
                                 

     A Third Way Legal Framework for Addressing the Comcast Dilemma

Austin Schlick, General Counsel--Federal Communications Commission--May 
                                6, 2010

    Chairman Genachowski has asked me to describe the legal thinking 
behind the narrow and tailored approach to broadband communications 
services that he introduced for public discussion today. It springs 
from a longstanding consensus about how the FCC should approach 
Internet access services; from a recent court decision that casts 
serious doubt on the FCC's current strategy for implementing that 
consensus; and from a belief that Congress's laws and the Supreme 
Court's decisions provide a way to overcome this new challenge.
    The Policy Consensus. As the Chairman explains in his statement, 
general agreement has developed about the agency's light-touch role 
with respect to broadband communications. This bipartisan agreement 
spans the FCC Chairmen and Commissioners, Congress, and industry, and 
has three elements:

        1. The Commission does not regulate the Internet. The policy of 
        preserving the Internet as a generally unregulated, free-market 
        forum for innovation, speech, education, and job creation finds 
        expression in (among other provisions) section 230 of the 
        Communications Act, which states Congress's conclusion that 
        ``[t]he Internet and other interactive computer services have 
        flourished, to the benefit of all Americans, with a minimum of 
        government regulation.'' (47 U.S.C.  230(a)(4))

        2. Dial-up Internet access service (used by about 5 million 
        American households essentially to ``call'' the Internet) is 
        subject to the regulatory rules for telephone service. This 
        policy protects the 5.6 million American households that depend 
        on ordinary telephone service to reach the Internet.

        3. For the broadband access services that a majority of on-line 
        consumers use to reach the Internet, the Commission refrains 
        from regulation when possible, but will step in when necessary 
        to protect consumers and fair competition. This balanced 
        approach to broadband access services was expressed most 
        clearly on September 23, 2005, when a unanimous Commission 
        released two companion decisions addressing broadband Internet 
        access service. The first decision that day, generally known as 
        the Wireline Broadband Order, ``established a minimal 
        regulatory environment for wireline broadband Internet access 
        services to benefit American consumers and promote innovative 
        and efficient communications.'' (Para. 1) It reclassified 
        telephone companies' Internet access offerings as indivisible 
        ``information services'' subject only to potential regulation 
        under the doctrine of ancillary authority. (``Ancillary 
        authority'' refers to the Commission's discretion under the 
        statutory provisions that establish the agency (Title I of the 
        Communications Act) to adopt measures that are ``reasonably 
        ancillary to the effective performance of the Commission's 
        various responsibilities.'' United States v. Southwestern Cable 
        Co., 392 U.S. 157 (1962).) The companion decision, known as the 
        Internet Policy Statement, adopted principles for an open 
        Internet and expressed confidence that the Commission had the 
        ``jurisdiction necessary to ensure that providers of 
        telecommunications for Internet access . . . are operated in a 
        neutral manner.'' (Para. 4) As recently as March 16 of this 
        year, the current Commission--again unanimously--adopted a 
        Joint Statement on Broadband reaffirming that ``[e]very 
        American should have a meaningful opportunity to benefit from 
        the broadband communications era.'' (Para. 3)

    These three basic principles reflect the Commission's commitment to 
a policy that promotes investment in the Internet and broadband 
technologies, and ensures basic protections for businesses and 
consumers when they use the on-ramps to the Internet.
    The Comcast Case. A month ago, the United States Court of Appeals 
for the D.C. Circuit issued an opinion that raises serious questions 
about the Commission's ability to implement the consensus policy 
effectively, absent some responsive administrative action. That case is 
Comcast v. FCC, the so-called Comcast/BitTorrent case. The case began 
in 2007, when Internet users discovered that Comcast was secretly 
degrading its customers' lawful use of BitTorrent and other peer-to-
peer applications. In 2008, the FCC issued an order finding Comcast in 
violation of Federal Internet policy as stated in various provisions of 
the Communications Act and prior Commission decisions.
    The D.C. Circuit held that the Commission's 2008 order lacked a 
sufficient statutory basis, because it did not identify ``any express 
statutory delegation of authority'' for putting an end to Comcast's 
undisclosed interference with its own customers' communications. The 
narrow holding is that because the Commission, in 2002, classified 
cable modem offerings entirely as ``information services'' (a category 
not subject to any specific statutory rules, but only the agency's 
ancillary authority under Title I of the Act), it could not, in 2008, 
enforce Title II's nondiscrimination and consumer protection principles 
in the cable modem context. The underlying legal principle is that, 
when the Commission classified residential broadband services as solely 
and entirely information services despite their substantial 
transmission component, the Commission unintentionally went too far in 
limiting its ability to protect consumers and small businesses.
    The opinion recognizes the Commission's continued ability to adopt 
rules concerning services Congress specifically addressed in the 
Communications Act--wireline and wireless telephony, broadcasting, and 
cable and satellite TV--and those rules may incidentally benefit the 
Internet. But, under Comcast, the FCC's 2002 classification decision 
greatly hampers its ability to accomplish a task the Commission 
unanimously endorsed in 2005: ``ensur[ing] that broadband networks are 
widely deployed, open, affordable, and accessible to all consumers.'' 
(Internet Policy Statement)
    The Commission's Options. Comcast undermined only the particular 
legal foundation used in recent years to support the longstanding 
consensus regarding broadband policy, not the consensus itself. In 
particular, the case casts no doubt on the wisdom of the three-part 
framework that has encouraged the development of diverse and innovative 
Internet applications, content, and services, as well as faster and 
more widely available access connections. The Commission's focus is on 
putting the consensus approach back on a sound legal footing. The 
public debate surrounding the Comcast decision has focused on two 
principal options, but there is a third approach that may provide a 
more tailored and sustainable alternative.

1. Title I: Stay the Course
    Some big cable and telephone companies suggest the agency should 
stick with the information service classification, try to adapt its 
policies to the new restrictions announced by the Comcast court, and 
see how it goes. This is a recipe for prolonged uncertainty. Any action 
the Commission might take in the broadband area--be it promoting 
universal service, requiring accurate and informative consumer 
disclosures, preserving free and open communications, ensuring 
usability by persons with disabilities, preventing misuse of customers' 
private information, or strengthening network defenses against 
cyberattacks--would be subject to challenge on jurisdictional grounds 
because the relevant provisions of the Communications Act would not 
specifically address broadband access services. Paradoxically, the FCC 
would be on safe legal ground only to the extent its actions regarding 
emerging broadband services were intended to affect traditional 
services like telephone and television.
    Even if the Commission won every case, there would be 
implementation delays of months or years while legal challenges worked 
their way through the courts--eons in what the Ninth Circuit has called 
the ``quicksilver technological environment'' of broadband. (AT&T Corp. 
v. City of Portland, 216 F.3d 871, 876 (9th Cir. 2000)). The extended 
uncertainty would deprive investors, innovators, and consumers of 
needed clarity about the rules of the road. Because the stay-the-course 
proposal does not allow the Commission directly to promote broadband 
deployment and adoption or protect broadband competition and consumers, 
it would not support the consensus status quo that existed before 
Comcast.

2. Title II: Telephone-Style Regulation of Broadband Internet Services
    A second option is to reclassify broadband Internet access services 
as telecommunications services and apply the full suite of provisions 
established in Title II of the Communications Act, many of which were 
developed decades ago for telephone networks. That approach would put 
the Commission on a strong jurisdictional footing in future broadband 
rulemakings and adjudications, because broadband Internet services 
would be governed directly by Title II. But this full Title II approach 
would trigger a detailed regulatory regime (comprising 48 sections of 
the United States Code) that the Commission has successfully refrained 
from applying to broadband Internet services. Although there would be 
clear rules of the road for broadband, those rules would be 
inconsistent with the current consensus approach of regulatory 
restraint.

3. A Third Way: Placing the Consensus Policy Framework on a Sound Legal 
        Footing
    There is a third legal path that fits better with the Commission's 
settled, deregulatory policy framework for broadband communications 
services. It begins at the Supreme Court. In National Cable and 
Telecommunications Association v. Brand X Internet Services, Inc., a 
majority of the Justices deferred to the Commission, and permitted its 
information service classification of cable modem offerings, because 
the Communications Act ``leaves Federal telecommunications policy in 
this technical and complex area to be set by the Commission.'' Justice 
Scalia, joined by Justices Souter and Ginsburg, concluded in a strong 
dissent that the ``computing functionality'' and broadband transmission 
component of retail Internet access service must be acknowledged as 
``two separate things.'' The former involves unregulated information 
services while the latter is a telecommunications service. The dissent 
therefore would have held that the Commission's information service 
classification of cable broadband Internet access service was an 
unreasonable and unlawful interpretation of the Communications Act.
    As discussed in detail below, adopting Justice Scalia's bifurcated 
view of broadband Internet access service is entirely consistent with 
(although not compelled by) the Brand X majority opinion. This course 
would also sync up the Commission's legal approach with its policy of 
(i) keeping the Internet unregulated while (ii) exercising some 
supervision of access connections. The provisions of Title II would 
apply solely to the transmission component of broadband access service, 
while the information component would be subject to, at most, whatever 
ancillary jurisdiction may exist under Title I.
    In addition to narrowing the applicability of Title II, the Scalia 
approach enables the Commission to use the powerful deregulatory tool 
Congress provided specifically for tailoring Title II's requirements to 
the Internet Age, and thereby establishing appropriately confined 
boundaries for regulation. When Congress amended the Communications Act 
in 1996, most consumers reached the Internet using dial-up service, 
subject then (as it is now) to Title II. Cable modem service was 
emerging, though, and telephone companies were beginning to offer DSL 
broadband connections for Internet access under Title II. Aware of the 
changing landscape, Congress gave the FCC authority and responsibility 
via section 10 of the Communications Act to ``forbear'' from applying 
telecommunications regulation, so that the new services are not subject 
to needlessly burdensome regulations. And in section 706 of the 
Telecommunications Act of 1996 (47 U.S.C. 1302), Congress directed the 
FCC to use its new forbearance power to ``encourage the deployment on a 
reasonable and timely basis of advanced telecommunications capability 
to all Americans.''
    The upshot is that the Commission is able to tailor the 
requirements of Title II so that they conform precisely to the policy 
consensus for broadband transmission services. Specifically, the 
Commission could implement the consensus policy approach--and maintain 
substantively the same legal framework as under Title I--by forbearing 
from applying the vast majority of Title II's 48 provisions to 
broadband access services, making the classification change effective 
upon the completion of forbearance, and enforcing a small handful of 
remaining statutory requirements. As few as six provisions could do the 
job:
    Sections 201, 202, and 208. These fundamental provisions 
collectively forbid unreasonable denials of service and other unjust or 
unreasonable practices, and allow the Commission to enforce the 
prohibition. Long before the Comcast decision, access providers 
supporting an information service classification made clear that they 
did not seek to avoid enforcement of these fair-dealing principles:

   In December 2000, Cox commented in the Cable Modem docket 
        that ``a Title I classification ensures that the Commission has 
        ample ability and authority to implement rules to correct any 
        market failures or other policy concerns about cable data 
        services that might develop in the future.''

   In May 2002, Verizon agreed in the Wireline Broadband 
        proceeding that ``classification of broadband under Title I 
        [would not] lead to any erosion of the consumer protections 
        provisions of the Communications Act.''

   In July 2003, SBC (now AT&T) noted in the same docket that 
        Title I classification of broadband Internet access services 
        would allow the Commission ``to intercede at some later point 
        if necessary to protect consumers.''

    After Comcast, the commonsense consensus that there should not be 
unreasonable conduct by broadband access service providers remains. In 
the Commission's pending Open Internet Proceeding, for example, Comcast 
has urged ``a standard based on `unreasonable and anticompetitive 
discrimination.' '' Sprint Nextel has commented that ``[t]he 
unreasonable discrimination standard contained in Section 202(a) of the 
Act contains the very flexibility the Commission needs to distinguish 
desirable from improper discrimination.'' And AT&T has concurred that 
the ``unreasonable discrimination'' prohibition in section 202(a) ``is 
both administrable and indispensable to the sound administration of the 
Nation's telecommunications laws.''
    Applying sections 201, 202, and 208 to broadband access service 
would hold broadband access providers to standards they agree should be 
met and would address the specific problem that sparked the case--
secret interference with subscribers' lawful Internet transmissions. 
Applying a few other Comcast sections of Title II would allow the 
Commission to address other recognized issues as well.
    Section 254. Section 254 requires the Commission to pursue policies 
that promote universal service goals including ``[a]ccess to advanced 
telecommunications and information services . . . in all regions of the 
Nation.'' In the Joint Statement on Broadband issued earlier this year, 
the Commission called for reform of the universal service program to 
``emphasize the importance of broadband.'' The Title I/information 
services model used by the Commission actually undermines 
accomplishment of this goal, because universal service support is 
generally available only for telecommunications services: The law 
defines ``universal service'' as ``an evolving level of 
telecommunications services the Commission shall establish 
periodically'' (emphasis added). Industry agrees this is a problem. 
AT&T (in a January 2010 white paper) and the cable industry (in a March 
2010 letter) have both proposed untested theories they think might 
permit universal support for broadband under Title I. Recognizing 
broadband transmission as a separable telecommunications service would 
definitively solve the problem.
    Section 222. Title II requires providers of telecommunications 
services to protect the confidential information they receive in the 
course of providing service. These protections are another part of the 
consensus policy framework for broadband access. A unanimous Commission 
addressed privacy in the 2005 Wireline Broadband Order, stating that 
``[c]onsumers' privacy needs are no less important when consumers 
communicate over and use broadband Internet access than when they rely 
on [telephone] services'' (para. 148), and that it had jurisdiction to 
enforce this norm (para. 146). As early as 1987, ``long before Congress 
enacted section 222 of the Act, the Commission had recognized the need 
for privacy requirements associated with the provision of enhanced 
[i.e., information] services'' and established rules for telephone 
companies to protect ``legitimate customer expectations of 
confidentiality'' as well as other companies' confidential business 
information. (Id. Para. 149 and n.447).
    Section 255. Telecommunications service providers and providers of 
telecommunications equipment or customer premises equipment must make 
their services and equipment accessible to individuals with 
disabilities, unless not reasonably achievable. The Wireline Broadband 
Order addressed this requirement as well. Again, although the 
Commission was there adopting the Title I legal framework, it held fast 
to the Title II rule, promising to ``exercise our Title I ancillary 
jurisdiction to ensure achievement of important policy goals of section 
255.'' (Para. 123) The Joint Statement on Broadband similarly provides 
that disabilities should not stand in the way of Americans' access to 
broadband. (Para. 3)
    The Wireless Experience. Although it would be new for broadband, 
this third way is a proven success for wireless communications. In 
1993, Congress addressed the minimum safeguards necessary for then-
emerging commercial mobile radio services (CMRS), such as cell phone 
service. Congress specified in a new section 332(c) of the 
Communications Act that Title II applies to CMRS, but the Commission 
may forbear from enforcing any provision other than the core 
requirements of sections 201, 202, and 208. This forbearance framework 
for wireless has been so successful that in 2001, Tom Tauke, Verizon's 
Senior Vice President for Public Policy and External Affairs, told the 
House Judiciary Committee that ``this approach produced what is 
arguably one of the greatest successes in this industry in the last 
twenty years--the growth of wireless services''--and it ``will work'' 
for wireline broadband as well.
    (Aside from this statutory history, wireless broadband may be 
distinguishable from cable and telephone company broadband access 
services on account of differences in the technical and consumer 
aspects of wireless broadband service, as well as the Commission's 
direct jurisdiction over licensing of wireless services under Title III 
of the Communications Act. On the other hand, telecommunications 
classification of a distinct transmission component within wireless 
broadband service might be essential to supporting deployment and wider 
adoption of wireless broadband under section 254.)
    A Stronger Legal Foundation. Applying a few foundational sections 
of Title II to the transmission component of broadband Internet access 
service would establish a strengthened legal basis on which to 
implement the consensus policy for broadband access. If broadband 
access service is found to contain a separate telecommunications 
service, as Justices Scalia, Souter, and Ginsburg believed was the only 
plausible view, then the Commission may protect broadband consumers by 
grounding its authority in Title II directly as well as in Title I as 
ancillary authority. This belt-and-suspenders approach--relying on 
direct statutory authority in addition to ancillary authority--puts the 
Commission in an inherently more secure position than the Title I 
approach, which allows only assertions of ancillary authority.
    The legal issue surrounding the third way is not whether the 
Commission can sufficiently protect consumers in a particular context, 
as it is under the information service classification and the Comcast 
opinion, but whether the Commission's decision to adopt Justice 
Scalia's classification of broadband access would be permissible. Brand 
X all but answers that question.
    Brand X involved a challenge by independent Internet service 
providers (ISPs), long distance carriers, consumer and public interest 
groups, and states to the Cable Modem Declaratory Ruling. In that 2002 
decision, the Commission had concluded that cable modem service then 
was being provided as ``a single, integrated service that enables the 
subscriber to utilize Internet access service,'' with a 
telecommunications component that was not ``separable from the data 
processing capabilities of the service.'' The Commission held that 
cable modem service ``does not include an offering of 
telecommunications service to subscribers'' and, accordingly, no 
portion of it triggered Title II duties or protections. (Cable Modem 
Declaratory Ruling paras. 38-39)
    When the case was briefed at the Supreme Court, all the parties 
agreed with the Commission that cable modem service either is or 
includes an information service. The Court therefore addressed whether 
the Commission permissibly applied the Communications Act in choosing 
to conclude that cable modem service providers offer only an 
information service, rather than a telecommunications service and an 
information service. The Court's opinion unequivocally reaffirms the 
principle that courts must defer to the implementing agency's 
reasonable interpretation of an ambiguous statute. Justice Thomas, 
writing for the six-Justice majority, recited that:

        In Chevron [U.S.A., Inc. v. Natural Resources Defense Council, 
        Inc., 467 U.S. 837 (1984)], this Court held that ambiguities in 
        statutes within an agency's jurisdiction to administer are 
        delegations of authority to the agency to fill the statutory 
        gap in reasonable fashion. Filling these gaps, the Court 
        explained, involves difficult policy choices that agencies are 
        better equipped to make than courts. 467 U.S., at 865-866. If a 
        statute is ambiguous, and if the implementing agency's 
        construction is reasonable, Chevron requires a Federal court to 
        accept the agency's construction of the statute, even if the 
        agency's reading differs from what the court believes is the 
        best statutory interpretation.

    (545 U.S. at 980) Furthermore, ``[a]n initial agency interpretation 
is not instantly carved in stone. On the contrary, the agency. . .must 
consider varying interpretations and the wisdom of its policy on a 
continuing basis.'' (Id. at 981 (quoting Chevron))
    Turning to the Communications Act, Justice Thomas wrote:

        The entire question is whether the products here are 
        functionally integrated (like the components of a car) or 
        functionally separate (like pets and leashes). That question 
        turns not on the language of the Act, but on the factual 
        particulars of how Internet technology works and how it is 
        provided, questions Chevron leaves to the Commission to resolve 
        in the first instance. . . . [T]he statute fails unambiguously 
        to classify the telecommunications component of cable modem 
        service as a distinct offering. This leaves Federal 
        telecommunications policy in this technical and complex area to 
        be set by the Commission.

    (Id. at 991) ``The questions the Commission resolved in the order 
under review,'' Justice Thomas summed up, ``involve a subject matter 
[that] is technical, complex, and dynamic. The Commission is in a far 
better position to address these questions than we are.'' (Id. at 1002-
03 (internal citation and quotation marks omitted))
    Justice Breyer concurred with Justice Thomas, stating that he 
``believe[d] that the Federal Communications Commission's decision 
falls within the scope of its statutorily delegated authority,'' 
although ``perhaps just barely.'' (Id. at 1003)
    In dissent, Justice Scalia, joined by Justices Souter and Ginsburg, 
expressed the view that the Commission had adopted ``an implausible 
reading of the statute[,] . . . thus exceed[ing] the authority given it 
by Congress.'' (Id. at 1005) Justice Scalia reasoned that ``the 
telecommunications component of cable-modem service retains such ample 
independent identity that it must be regarded as being on offer--
especially when seen from the perspective of the consumer or end 
user.'' (Id. at 1008)
    These opinions collectively afford the Commission great flexibility 
to adjust its approach going forward--particularly by adopting an 
approach like the one suggested by Justice Scalia. The Brand X case put 
six Justices on record as saying that classification of cable modem 
service is a call for the FCC to make and that ``the Commission is free 
within the limits of reasoned interpretation to change course if it 
adequately justifies the change'' (id. at 1001); one of the six ``just 
barely'' accepted the FCC's information service approach; and the three 
remaining Justices expressed the view that the agency must classify a 
separable telecommunications service within cable modem offerings. As 
many as all nine Justices, it seems, might have upheld a Commission 
decision along the lines Justice Scalia suggested. In any event, the 
lawfulness of a limited reclassification could be confirmed relatively 
quickly in a single court case, avoiding the prolonged and uncertain 
case-by-case testing that would follow from continuing down the Title I 
road.
    An agency reassessment of the classification issue would have to 
include consideration of the policy impact of the Comcast case, as well 
as a fresh look at the technical characteristics and market factors 
that led Justice Scalia to believe there is a divisible 
telecommunications service within broadband Internet access. The 
factual inquiry would include, for instance, examination of how 
broadband access providers market their services, how consumers 
perceive those services, and whether component features of broadband 
Internet access such as e-mail and security functions are today 
inextricably intertwined with the transmission component. If, after 
studying such issues, the Commission reasonably identified a separate 
transmission component within broadband Internet access service, which 
is (or should be) offered to the public, then the consensus policy 
framework for broadband access would rest on both the Commission's 
direct authority under Title II and its ancillary authority arising 
from the newly recognized direct authority. This necessarily would 
allow a stronger legal presentation than the standalone ancillary 
jurisdiction arguments that the Commission made unsuccessfully in 
Comcast.
    No New Unbundling Authority. In the wake of Comcast, 
representatives of the incumbent telephone companies have sometimes 
suggested that any deviation from the current information service 
classification of broadband Internet access would open the door to new 
network unbundling authority under section 251(c) of the Communications 
Act. That is not a credible concern. An incumbent telephone company's 
network unbundling obligations under section 251 do not depend on the 
classification of the services the incumbent company is providing. The 
Commission's adoption of its current information service classification 
accordingly did not lessen unbundling obligations or authority under 
section 251. In paragraph 127 of the 2005 Wireline Broadband Order (the 
order that extended the information-service classification to telephone 
companies' broadband access) the Commission specifically explained that 
``nothing in this Order changes a requesting telecommunications 
carrier's [unbundling] rights under section 251 and our implementing 
rules.''
    Nor would identifying a separate telecommunications component of 
broadband access service afford competing ISPs any new rights to the 
incumbents' networks on a wholesale basis under the old Computer 
Inquiry rules. The Commission ``eliminate[d]'' those requirements for 
wireline broadband access providers in 2005, no matter whether they 
provide a Title I or Title II access service. (Id. para. 80).
    As for cable companies, there is currently an open rulemaking 
proceeding--begun by the Powell Commission at the same time it adopted 
the information services theory--that asks ``whether it is necessary or 
appropriate at this time to require that cable operators provide 
unaffiliated ISPs with the right to access cable modem service 
customers directly.'' (Cable Modem Order para. 72) The Commission has 
not taken any action to implement mandatory access to cable broadband 
networks, and a consensus seems to have developed that it should not be 
ordered. Should the Commission wish to formally confirm that consensus, 
it could close the 2002 proceeding.
    No Rate Regulation. Nor would identification of a 
telecommunications service within broadband Internet access be a 
harbinger of monopoly-era price regulation, as some have suggested. 
Congress made mobile services subject to Title II in 1993, but under 
the model established for wireless services the Commission rejected 
rate setting. A wireless carrier's success, the Commission explained, 
``should be driven by technological innovation, service quality, 
competition-based pricing decisions, and responsiveness to consumer 
needs--and not by strategies in the regulatory arena.'' (Implementation 
of Sections 3(n) and 332 of the Communications Act, Regulatory 
Treatment of Mobile Services, 9 FCC Rcd 1411, 1420 (1994)) There is no 
reason to anticipate the Commission would reach a different conclusion 
about prices or pricing structures for broadband access. Indeed, more 
than 800 incumbent telephone companies voluntary provide broadband 
access as a Title II telecommunications service today, and while most 
have voluntary tariffs, the Commission expressly does not require 
tariffing. (Wireline Broadband Order para. 90)
    Difficult To Overturn. Would a forbearance-based approach provide 
greater or lesser protection against future over-regulation of 
broadband access than today's information service classification? 
Although neither approach would, could, or should absolutely prevent 
the Commission from adjusting its future policies in light of changed 
circumstances, the forbearance approach should provide greater, not 
lesser, protection against excessive regulation than the Title I 
approach.
    As already discussed, the Commission's information service approach 
was highly discretionary and, the Supreme Court instructed in Brand X, 
subject to review ``on a continuing basis.'' For both reasons, the 
current information service classification is inherently insecure. 
Justice Scalia made this point in Brand X. (545 U.S. at 1013) 
Forbearance determinations for broadband access transmission would be 
more difficult than the information service classification to reverse. 
That is because Section 10 mandates forbearance if:

        (1) enforcement of such regulation or provision is not 
        necessary to ensure that the charges, practices, 
        classifications, or regulations by, for, or in connection with 
        that telecommunications carrier or telecommunications service 
        are just and reasonable and are not unjustly or unreasonably 
        discriminatory;

        (2) enforcement of such regulation or provision is not 
        necessary for the protection of consumers; and

        (3) forbearance from applying such provision or regulation is 
        consistent with the public interest.

    The initial determination to forbear from regulating broadband 
access would be straightforward under this test. Applying sections 201, 
202, and 208 would directly address the first prong of the test. As for 
the second and third prongs (protecting consumers and consistency with 
the public interest), the critical fact is that Title II rules 
currently do not apply to broadband access service. Forbearing would 
preserve the status quo, not change it. To satisfy the statutory 
forbearance criteria, therefore, the Commission would only have to 
conclude that consumers and the public interest are adequately 
protected today, without application of the Title II provision at 
issue. Consistent with the 2005 classification order, this analysis 
could be undertaken on a nationwide rather than market-by-market basis. 
(See Wireline Broadband Order paras. 91-93)
    Unforbearing (that is, imposing Title II rules that have not been 
applied to broadband access services in many years, if ever) would be a 
different matter entirely. In order to overturn a grant of forbearance, 
the Commission would first have to compile substantial record evidence 
that the circumstances it previously identified as supporting 
forbearance had changed, and then survive judicial review under the 
Administrative Procedure Act's arbitrary-and-capricious standard. The 
difficulty of overcoming section 10s deregulatory mandate and a prior 
agency finding in favor of forbearance is illustrated by the fact that 
the FCC has never reversed a forbearance determination made under 
section 10, nor one made for wireless under the similar criteria of 
section 332(c)(1).
    The Commission could further reinforce the certainty of forbearance 
in the text of any implementing order. For instance, the Commission 
might provide that in the event of an adverse court decision on 
forbearance the old unitary information service classification would 
spring back, or that there would be some other response by the 
Commission that is more consistent with the pre-Comcast status quo than 
full Title II regulation.
    No Inconsistent State Regulation. Excessive state regulation is as 
threatening to the Internet as excessive Federal regulation. The 
Commission, however, has broad authority to preempt inconsistent state 
requirements when they frustrate valid Federal policies. Under today's 
information service classification, the Commission's general policy of 
not regulating information services means that states have little 
ability to regulate broadband Internet access services. The Commission 
has similar authority to preempt state regulation of interstate 
telecommunications services when the state regulation is inconsistent 
with Federal regulation (or deregulation) and the state cannot limit 
the effect of its regulation to an intrastate portion of the service. 
Furthermore, section 10(e) of the Act specifically provides that no 
state may apply a provision of Title II that the Commission has 
nullified through forbearance. For these reasons, broadband access 
providers would have at least the same protection against unjustified 
state regulation as they enjoy today. Indeed, access providers arguably 
would have more protection under a tailored forbearance approach than 
under the Title I approach; because a permissible exercise of Federal 
jurisdiction can effectively limit state jurisdiction, the Comcast 
decision's narrowing of Federal ancillary jurisdiction might have the 
corollary effect of expanding the permissible scope of state 
regulation.
    No Red Tape or Slippery Slopes. Finally, a third-way approach 
modeled on the successful framework used for wireless services would 
have to be administrable and lead to sensible results in practice. 
Administration should be a non-issue. Access providers would be free to 
define and redefine their transmission services to best meet 
operational and customer needs, without any need to file tariffs (given 
forbearance from the rate-setting provisions of the Act). The fact-
specific inquiry involved in a tailored forbearance approach, moreover, 
would address only facilities-based providers that offer access 
transmission to the public at large. Providers of Internet content, 
applications, and services would remain unregulated under the first 
prong of the Commission's consensus framework, while providers of 
negotiated (``private'') carriage services--on the Internet or 
elsewhere--are not telecommunications service providers subject to 
Title II. (See Communications Act section 3(46) (``The term 
`telecommunications service' means the offering of telecommunications 
for a fee directly to the public, or to such classes of users as to be 
effectively available directly to the public, regardless of the 
facilities used.'') A narrow and tailored forbearance approach to 
solving the Comcast problem appears workable in this respect as well.
    Whether, all things considered, the legal response to Comcast 
sketched out here is the best one for the Commission to adopt would be 
for the five FCC Commissioners to answer after an opportunity for 
public comment and private study. In my judgment, it's a question worth 
asking.

                                  
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