[Congressional Record Volume 157, Number 170 (Tuesday, November 8, 2011)]
[Senate]
[Pages S7167-S7169]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             NET NEUTRALITY

  Mr. WARNER. Madam President, I rise in opposition to S.J. Res. 6. 
This resolution would basically roll back the FCC's compromise over 
what we have all been debating: net neutrality. This is a subject area 
I have more than a passing interest in. It is a subject I had the good 
fortune to be involved in during the practice of my business for over 
20 years before I got involved full time in politics and public 
service.
  I, and I know the Presiding Officer and probably all of us in this 
body, recognize that the power of telecommunications and the power of 
the Internet to transform people's lives has been remarkable. Demand 
for Internet use is growing dramatically. Today, nearly 2 billion 
people use the Internet. By 2015--and that is a mere 4 years from now--
that number is expected to reach 2.7 billion.
  That is pretty significant: 2.7 billion people using the Internet out 
of a total worldwide population of 7 billion folks. We are rapidly 
hitting the point where nearly half the world will use the Internet in 
one form or another to communicate, to effect commerce, to socially 
interact. This is a tool. Making sure this tool, this network, this 
technology, this transformative field truly remains open, free, and 
available to all and is not unduly hindered by government regulation is 
something we all aspire to. Yet even as we see this tremendous growth 
in the Internet, we see constraints--constraints put on by spectrum 
resources and access to high-speed broadband. Mobile app providers seem 
to be multiplying exponentially day by day. There are already over 
600,000 applications or ``apps'' for the iPhone. Android--a more recent 
entrant into the market--now has over 500,000 ``apps.''
  One of the most incredible things is that the United States lays 
claim to inventing the Internet which was developed by government 
research linking a whole series of computer networks back in the late 
1980s and into the early 1990s. While the United States has been at the 
forefront of Internet development, unfortunately due to broadband 
constraints and spectrum constraints, the United States, which used to 
be a leader, is no longer in that leadership role. For example, homes 
in South Korea have greater access to faster, more advanced wireless 
networks and broadband than we do.
  So the question in the resolution we are debating is: How do we make 
sure we continue to grow access to broadband? How do we make sure the 
Internet, with all its wonderful new applications, is available in the 
most open and technology-neutral way?
  The FCC has wrestled with this issue for some time, and the FCC is 
the appropriate place to be wrestling with this issue. Last December, 
the FCC came out with an order--an order that reached some level of 
compromise between a series of very strong competing interests. By no 
means do I believe the FCC December 2010 order is perfect. But it does 
represent a dramatic step forward in that a majority of the players, 
candidly, in the industry have reached some accommodation.
  I do not believe this order in itself is a sufficient answer. I do 
believe we in Congress are going to need, at some point, to come back 
and review the Telecommunications Act of 1996. While that offered great 
promise--and I was someone who was still in the private sector at that 
moment in time, someone who thought we were going to see true 
interconnection opportunities for truly local competitive access in 
terms of telephone services--that did not come to pass. As a matter of 
fact, I have a number of companies that went down the tubes that I 
invested in that assumed that 1996 Act would open those kinds of 
activities. It did not come to pass.

[[Page S7168]]

  But having Congress revisit the 1996 Telecommunications Act is not 
what is being debated today. What is being debated is whether we go 
ahead and allow the FCC's compromise proposition to move forward or 
whether we introduce further politics into this issue when we ought not 
let politics stand in the way of technology and innovation moving 
forward.
  I know some of my colleagues on the other side of the aisle who feel 
otherwise. They think the FCC's compromise order puts too much 
government regulation on innovation. I must respectfully disagree. If 
we were talking about too much government regulation of innovation, I 
would be strongly standing with those colleagues saying that is not 
what we ought to be doing.
  What we are doing, as we debate this so-called net neutrality issue, 
is talking about the rights and responsibilities of network owners and 
operators to manage the Internet and, quite honestly, to allow them to 
run successful businesses in a free and open way.
  We are also talking about the rights of consumers to have access to 
lawful content on the Internet without any prejudice. Without having 
that network provider choose one content provider over another in terms 
of who gets first dibs, first access to their network.
  This issue has been debated on and off not just this year but for a 
number of years. In many ways, the current history on this issue goes 
back to 2005, when both the Federal Communications Commission and the 
Supreme Court determined separately that broadband services should be 
reclassified as information services under the 1996 Telecommunications 
Act instead of as telecommunications services.
  For those who do not live within the rather esoteric world of telecom 
regulations, what does this mean in plain English? Information services 
have always had a lighter touch of regulation than have 
telecommunications services.
  Think about the original regulation of telecommunications services 
going back almost to the 1934 act, when we had, in effect, one 
telecommunications provider. It was Ma Bell. We could pick our phone of 
any type, as long as it was black, and everybody paid the same access 
fee. When we had that kind of monopolistic situation telecommunications 
had to be regulated in a more appropriate way to make sure the 
consumers were protected.
  As we saw the evolution of telecom services and the breakup of Ma 
Bell and a move to multiple providers, telecom services still have 
required a slightly heavier hand of regulation than for information 
services.
  Back in 2005, the Supreme Court and the FCC said that because we have 
this brand new area of broadband--an area that in 2005 we did not fully 
realize the potential of, frankly, even in 2011, I am not sure we fully 
realize the potential--we are going to view this as information 
services and, consequently, have less regulation. That should be viewed 
as a good sign.
  Contrary to what some in this debate say, there has never been a time 
when the management of the Internet or the telecommunications 
networks--which make up, in effect, the backbone of our Internet 
system--has not been regulated. Again, as I mentioned earlier, 
networks--whether they are passing voice, data, now video or others--
all have had some form of regulation going back to the 
Telecommunications Act of 1934.
  The question we are asked here today is: What kind of rules do we 
want to have as a society to make sure everyone can have free and 
unfettered access to the Internet and to lawful content in a way that 
is not biased or prejudiced by the telecommunications provider in the 
background?

  To me, that means Internet service providers have the right to manage 
the networks as best they can. That means network providers have to 
have the ability to manage some level of traffic so they can generate 
enough revenues to continue to build out their networks, particularly 
so rural communities can have access to these services.
  I know the Acting President pro tempore knows of parts of northern 
New Hampshire where there are still areas that do not have full high-
speed broadband Internet access. I know in my State of Virginia there 
are parts of Southside and southwest that do not have access to full 
high-speed broadband connections.
  While broadband connectivity does not guarantee economic success, it 
is a prerequisite for any community in the 21st century if they are 
even going to get looked at as a possible location for new jobs. So we 
have to make sure all communities get access to broadband. That means 
we have to allow the network providers at least enough of a rate of 
return to give them the incentive to build out their networks.
  But it also means that while they have to be able to manage their 
networks, these Internet service providers, cannot discriminate against 
content providers' access to networks. It does not mean a network 
provider ought to be able to say: I like this content more than that 
type of content, particularly if the network provider happens to own 
that content and somehow moves it to the front of the line. That goes 
against the grain of everything that has been about providing 
telecommunications in this country since the 1934 Act.
  If this was a simple matter, the industry, the FCC, and others would 
not have been wrestling with it as dramatically as they have over the 
last 5 or 6 years. The fact is, network management is increasingly 
complicated. So complicated that sometimes it is hard to tell exactly 
what is going on behind the scenes.
  As a former telecommunications executive and somebody who spent 20 
years being involved in helping to try to build out at least part of 
the wireless network in this country--but as somebody who also is at 
this point falling behind on all the current technological 
innovations--I would like to comment I was very current circa 1999, 
which puts me a bit behind in 2011. While behind, I do recognize and 
understand that network management in 2011 is extraordinarily 
challenging.
  New technologies that allow for prioritization of network traffic, 
deep packet inspection, and the increasing use of metered services and 
usage-based pricing--all these factors, combined with an effort to make 
sure we are technology neutral in how we get this high-speed broadband 
information--whether it is wired, wireless, satellites or otherwise. 
This all makes these issues extraordinarily difficult for policymakers 
to wrestle with.
  It was in that vein that the FCC conducted a 2-year process to 
address concerns about maintaining competitively neutral access to the 
Internet. So in December of 2010, the FCC adopted an Open Internet 
Order which is expected to be implemented on November 20th of this 
year, 2011. As I said at the outset, the order they put forward is not 
perfect. There are many in the industry who have a partial bone to pick 
with various technical components. But the fact is I give Chairman 
Genachowski great credit for managing to thread the needle in way that 
while no one is totally happy, no one is totally unhappy. The issue of 
net neutrality has been dealt with by the order and we can move on to 
the next step of the debate. That is, we can turn to making sure we 
actually complete the buildout of broadband networks, particularly to 
the rural communities around America.
  What does the FCC order do? It basically sets three basic rules for 
how network owners, ISPs, must handle Internet traffic.
  First, it offers greater transparency about fixed and mobile network 
management practices to both consumers and content providers. This is 
terribly important. Without that transparency, without that knowledge, 
to see what we are getting as a consumer--or if you are a content 
provider, making sure your traffic is not being bumped out of line by 
some large network operator--is terribly important.
  Second, it prevents fixed and mobile network providers from blocking 
traffic generated by competitors to varying degrees. What does this 
mean? It means if you are a network manager, if you are a network 
provider--and many network providers are now starting to also own 
content as well--you have to make sure that competitors are treated 
fairly. If you are a competitor in terms of being a content provider, 
you want to be sure the network you may be putting your traffic on that 
has its own set of content is not allowing its network-owned content to 
get priority, to get an unfair advantage.

[[Page S7169]]

  If the networks are going to be open and accessible, neutral networks 
that we have all come to expect from our telecommunications networks in 
the past, we have to make sure there is no bias.
  The second part of the FCC order tries to make sure these fixed and 
mobile network providers aren't able to block traffic and give their 
own content priority.
  Third, it prohibits fixed broadband providers from unreasonable, 
discriminatory practices. Again, this is about content, but it also 
tries to get at that issue of how do we deal with those folks who have 
huge amounts of content that can clog the network. We have to make sure 
that we have open access, but we cannot have people overwhelm the 
network with their particular content without the ability to price that 
into the network provider's basic service offerings.
  I know many of my colleagues' eyes are starting to glaze. I even see 
some of the pages' eyes are starting to glaze as we dive into some of 
the intricacies of telecommunications practices. But at the end of the 
day, what the FCC did in 2010 will be implemented later this month--
unless the Senate rejects it and throws all the work out the window and 
says let's go back to square one. I think would actually do great harm 
to the progress made and provide even greater uncertainty to one of the 
fastest growing areas of our economy, telecommunications and broadband.
  If we reject this S.J. Res. 6, which I hope we will, and allow this 
compromise that the FCC worked out to move forward, I believe it will 
allow the kind of broadband growth, the kind of Internet growth we have 
all come to expect. And it will help create new jobs in this country.
  A couple final points. The wireless issues are a particularly 
challenging policy area still to be addressed. Wireless is a newer 
technology. The FCC decided in the Order to adopt a lighter hand of 
regulation rather than the more strict, full telecommunications 
regulation of the 1996 Act. This is because of the tremendous growth in 
the nascent area of mobile services. As of December 2010, 26 percent of 
U.S. households were wireless only, compared to about 8 percent of the 
households 5 years ago. The point here is a dramatic one. I think about 
my kids who, as they start to move into their own homes or even into 
college, don't even have a phone in their apartment at college. They 
rely entirely on wireless. We have to make sure we can continue to 
build out these wireless networks in the most robust way possible. I 
think the FCC basically got it right by not putting any more heavy-
handed regulation on wireless.
  In closing, the real issue is how do we ensure that consumers and 
content providers are treated fairly. The Internet was designed as an 
open medium, where every service and Web site had an opportunity to 
gain a following and to be successful. This philosophy allows bloggers 
to compete with mainstream media and entrepreneurs across all sectors 
to compete globally. Small and medium businesses that rely heavily on 
Web technologies grow and export two times as much as businesses that 
don't, according to McKinsey.
  Some have argued that neither the Congress nor the FCC should do 
anything in this area because there isn't a widespread problem 
currently. It is important to remember that the reason the Internet has 
been so successful has been the fact that no one has been able to 
control it--no network provider alone, no content provider alone. I 
hope that never changes.
  I do believe the FCC Order should be allowed to be implemented. It 
helps set minimum rules of the road that will allow Internet growth, 
broadband growth, mobile growth, all areas where the United States can 
regain the lead and continue to create jobs and advance prosperity.
  With that, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Tester). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. PRYOR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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