[Federal Register Volume 75, Number 121 (Thursday, June 24, 2010)]
[Notices]
[Pages 36071-36088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15349]


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FEDERAL COMMUNICATIONS COMMISSION

[GN Docket No. 10-127; FCC 10-114]


Framework for Broadband Internet Service

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document begins an open, public process to consider the 
adequacy of the current legal framework within which the Commission 
promotes investment and innovation in, and protects consumers of, 
broadband Internet service. Recent developments--including a decision 
of the United States Court of Appeals for the District of Columbia 
Circuit and affirmation from Congress that the Commission plays a vital 
role with respect to broadband--lead the Commission to seek comment on 
our legal framework for broadband Internet service.

DATES: Comments must be submitted by July 15, 2010, and reply comments 
must be submitted by August 12, 2010.

ADDRESSES: You may submit comments, identified by GN Docket No. 10-127, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Chris Killion or David Tannenbaum, 
Office of General Counsel, 202-418-1700.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Inquiry (Notice), FCC 10-114, adopted on June 17, 2010, and released 
on June 17, 2010. Interested parties may file comments on or before 
July 15, 2010, and reply comments on or before August 12, 2010. 
Comments and reply comments may be filed: (1) Using the Commission's 
Electronic Comment Filing System (ECFS), (2) using the Federal 
Government's eRulemaking Portal, or (3) by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, 
May 1, 1998. All filings related to this Notice should refer to GN 
Docket No. 10-127. Further, we strongly encourage parties to develop 
responses to this Notice that adhere to the organization and structure 
of this Notice.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    Parties shall also serve one copy with the Commission's copy 
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via 
e-mail to [email protected].
    The inquiry this Notice initiates shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentations must contain summaries of the 
substance of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented generally is required. Other requirements 
pertaining to oral and written presentations are set forth in section 
1.1206(b) of the Commission's rules. Ex parte comments may be filed at 
any time except during the Sunshine Period. Ex parte comments may be 
filed: (1) Using the Commission's Electronic Comment Filing System 
(ECFS), (2) using the Federal Government's eRulemaking Portal, (3) by 
filing paper copies, or (4) by posting comments and ideas on the 
Broadband.gov blog at http://blog.broadband.gov/?categoryId=494971 or 
on http://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. 
In addition to the usual methods for filing ex parte comments, the 
Commission is allowing ex parte comments in this proceeding to be filed 
by posting comments on http://blog.broadband.gov/?categoryId=494971 and 
on http://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. 
Accordingly, persons wishing to examine the record in this proceeding 
should examine the record on ECFS, http://blog.broadband.gov/?categoryId=494971 and http://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. Although those posting comments on 
the blog may choose to provide identifying information or may comment 
anonymously, anonymous comments will not be part of the record in this 
proceeding and accordingly will not be relied on by the Commission in 
reaching its conclusions in this rulemaking. The Commission will not 
rely on anonymous postings in reaching conclusions in this matter 
because of

[[Page 36072]]

the difficulty in verifying the accuracy of information in anonymous 
postings. Should posters provide identifying information, they should 
be aware that although such information will not be posted on the blog, 
it will be publicly available for inspection upon request.
    Documents in GN Docket No. 10-127 will be available for public 
inspection and copying during business hours at the FCC Reference 
Information Center, Portals II, 445 12th Street, SW., Room CY-A257, 
Washington, DC 20554. The documents may also be purchased from BCPI, 
telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, 
e-mail [email protected].
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    1. This Notice begins an open, public process to consider the 
adequacy of the current legal framework within which the Commission 
promotes investment and innovation in, and protects consumers of, 
broadband Internet service. In this Notice we use the term ``broadband 
Internet service'' to refer to the bundle of services that facilities-
based providers sell to end users in the retail market. This bundle 
allows end users to connect to the Internet, and often includes other 
services such as e-mail and online storage. In prior orders we have 
referred to this bundle as ``broadband Internet access service.'' We 
use the term ``wired,'' as in ``wired broadband Internet service,'' to 
distinguish platforms such as digital subscriber line (DSL), fiber, 
cable modem, and broadband over power lines (BPL), from platforms that 
rely on wireless connections to provide Internet connectivity and other 
services in the last mile. We refer to the service that may constitute 
a telecommunications service as ``Internet connectivity service'' or 
``broadband Internet connectivity service.'' As discussed below, 
Internet connectivity service allows users to communicate with others 
who have Internet connections, send and receive content, and run 
applications online. For administrative simplicity we incorporate the 
same distinction between broadband and narrowband that the Commission 
applied in the classification orders we revisit here. That is, services 
with over 200 kbps capability in at least one direction will be 
considered ``broadband'' for the particular purposes of these Notices. 
Until a recent decision of the United States Court of Appeals for the 
District of Columbia Circuit, there was a settled approach to 
facilities-based broadband Internet service, which combined minimal 
regulation with meaningful Commission oversight. The Comcast opinion, 
however, held that the Commission went too far when it relied on its 
``ancillary authority'' to enjoin a cable operator from secretly 
degrading its customers' lawful Internet traffic. Comcast appears to 
undermine prior understandings about the Commission's ability under the 
current framework to provide consumers basic protections when they use 
today's broadband Internet services. Moreover, the current legal 
classification of broadband Internet service is based on a record that 
was gathered a decade ago. Congress, meanwhile, has reaffirmed the 
Commission's vital role with respect to broadband, and the Commission 
has developed a National Broadband Plan recommending specific agency 
actions to encourage deployment and adoption. The Plan contains dozens 
of recommendations to fulfill the congressional aims articulated in the 
Recovery Act, including specific proposals to increase access and 
affordability; maximize utilization of broadband Internet services; and 
enhance public safety, consumer welfare and education throughout the 
United States. Roughly half of the Plan's recommendations are directed 
to the Commission itself.
    2. These developments lead us to seek comment on our legal 
framework for broadband Internet service. In addition to seeking 
original suggestions from commenters, we ask questions about three 
specific approaches. First addressing the wired service offered by 
telephone and cable companies and other providers, we seek comment on 
whether our ``information service'' classification of broadband 
Internet service remains adequate to support effective performance of 
the Commission's responsibilities. We then ask for comment on the legal 
and practical consequences of classifying Internet connectivity service 
as a ``telecommunications service'' to which all the requirements of 
Title II of the Communications Act would apply. Finally, we identify 
and invite comment on a third way under which the Commission would: (i) 
Reaffirm that Internet information services should remain generally 
unregulated; (ii) identify the Internet connectivity service that is 
offered as part of wired broadband Internet service (and only this 
connectivity service) as a telecommunications service; and (iii) 
forbear under section 10 of the Communications Act from applying all 
provisions of Title II other than the small number that are needed to 
implement the fundamental universal service, competition and small 
business opportunity, and consumer protection policies that have 
received broad support. We seek comment on the same issues as they 
relate to terrestrial wireless and satellite broadband Internet 
services, as well as on other factual and legal issues specific to 
these wireless services that bear on their appropriate classification. 
We further seek comment on discrete issues, including the states' 
proper role with respect to broadband Internet service.

Introduction

    3. This Commission exists ``[f]or the purpose of regulating 
interstate and foreign commerce in communication by wire and radio so 
as 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 communication service with adequate facilities at reasonable 
charges, 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 communications.'' During more than 75 years of technological 
progress--from the time of tube radios and telephone switchboards to 
the modern era of converged digital services--the Commission has 
promoted innovation and investment in new communications services and 
protected and empowered the businesses and consumers who depend on 
them.
    4. We have held to our pro-competition and pro-consumer mission in 
the Internet Age. Indeed, for at least the last decade the Commission 
has taken a consistent approach to Internet services--one that industry 
has endorsed and Congress and the United States Supreme Court have 
approved. This approach consists of three elements: The Commission 
generally does not regulate Internet content and applications; access 
to an Internet service provider via a dial-up connection is subject to 
the regulatory rules for telephone service; and for the broadband 
Internet services that most consumers now use to reach the Internet, 
the Commission has refrained from regulation when possible, but has the 
authority to step in when necessary to protect consumers and fair 
competition.
    5. The first element of our consistent approach, preserving the 
Internet's capacity to enable a free and open forum for innovation, 
speech, education, and job creation, finds expression in (among other 
provisions) section 230 of the

[[Page 36073]]

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.''
    6. The second element, oversight of dial-up access to the Internet 
under the common carriage framework of Title II of the Communications 
Act, is a facet of traditional telephone regulation. Although Internet 
users increasingly depend on broadband communications connections for 
Internet access, approximately 5.6 million American households still 
use a dial-up telephone connection.
    7. The third element of the framework, restrained oversight of 
broadband Internet service, was expressed clearly on September 23, 
2005, for example, when the Commission released two companion 
decisions. The first ``establishe[d] a minimal regulatory environment 
for wireline broadband Internet access services.'' It reclassified 
telephone companies' broadband Internet service offerings as 
indivisible ``information services'' subject only to potential 
regulation under Title I of the Communications Act and the doctrine of 
ancillary authority. In that decision, the Commission articulated its 
belief that ``the predicates for ancillary jurisdiction are likely 
satisfied for any consumer protection, network reliability, or national 
security obligation that we may subsequently decide to impose on 
wireline broadband Internet access service providers.'' The second 
decision that day adopted principles for an open Internet, again 
expressing confidence that the Commission had the ``jurisdiction 
necessary to ensure that providers of telecommunications for Internet 
access * * * are operated in a neutral manner.'' Earlier this year, the 
Commission unanimously reaffirmed in a Joint Statement on Broadband 
that ``[e]very American should have a meaningful opportunity to benefit 
from the broadband communications era,'' and 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.'' Together, these and other agency decisions show the 
Commission's commitment to restrained oversight of broadband Internet 
service, and its equally strong resolve to ensure universal service and 
protect consumers and fair competition in this area when necessary.
    8. Before the Comcast case, most stakeholders--including major 
communications service providers--shared the Commission's view that the 
information service classification allowed the Commission to exercise 
jurisdiction over broadband Internet services when required. But the 
D.C. Circuit concluded that the Commission lacked authority to prohibit 
practices of a major cable modem Internet service provider that 
involved secret interruption of lawful Internet transmissions, which 
the Commission found were unjustified and discriminatory and denied 
users the ability to access the Internet content and applications of 
their choice. Today, in the wake of the Comcast decision, the 
Commission faces serious questions about the legal framework that will 
best enable it to carry out, with respect to broadband Internet 
service, the purposes for which Congress established the agency. 
Meanwhile, Congress has highlighted the importance of broadband 
networks and Internet-based content and services for economic growth 
and development and has directed the Commission to develop policies to 
address concerns about the pace of deployment, adoption, and 
utilization of broadband Internet services in the United States.
    9. Comcast makes unavoidable the question whether the Commission's 
current legal approach is adequate to implement Congress's directives. 
In this Notice, we seek comment on the best way for the Commission to 
fulfill its statutory mission with respect to broadband Internet 
service in light of the legal and factual circumstances that exist 
today. We do so while standing ready to serve as a resource to Congress 
as it considers additional legislation in this area. Commenters may 
wish to address how the Commission should proceed on these issues in 
light of Congressional developments.
    10. We emphasize that the purpose of this proceeding is to ensure 
that the Commission can act within the scope of its delegated authority 
to implement Congress's directives with regard to the broadband 
communications networks used for Internet access. These networks are 
within the Commission's subject-matter jurisdiction over communication 
by wire and radio and historically have been supervised by the 
Commission. We do not suggest regulating Internet applications, much 
less the content of Internet communications. We also will not address 
in this proceeding other Internet facilities or services that currently 
are lightly regulated or unregulated, such as the Internet backbone, 
content delivery networks (CDNs), over-the-top video services, or 
voice-over-Internet-Protocol (VoIP) telephony services. Our questions 
instead are directed toward addressing broadband Internet service in a 
way that is consistent with the Communications Act, reduces uncertainty 
that may chill investment and innovation if allowed to continue, and 
accomplishes Congress's pro-consumer, pro-competition goals for 
broadband.

Discussion

Background

    11. The Commission has long sought to ensure that communications 
networks support a robust marketplace for computer services operated 
over publicly accessible networks, from the early database lookup 
services to today's social networking sites. To provide context for the 
later discussion of the Commission's options for a suitable framework 
for broadband Internet service, we briefly describe this historical 
backdrop.

The Commission's Classification Decisions

    12. In 1966, the Commission initiated its Computer Inquiries ``to 
ascertain whether the services and facilities offered by common 
carriers are compatible with the present and anticipated communications 
requirements of computer users.'' In Computer I, the Commission 
required ``maximum separation'' between large carriers that offered 
data transmission services subject to common carrier requirements and 
their affiliates that sold data processing services. Refining this 
approach, in Computer II and Computer III the Commission required 
facilities-based providers of ``enhanced services'' to separate out and 
offer on a common carrier basis the ``basic service'' transmission 
component underlying their enhanced services.
    13. In the Telecommunications Act of 1996, Congress built upon the 
Computer Inquiries by codifying the Commission's distinction between 
``telecommunications services'' used to transmit information (akin to 
offerings of ``basic services'') and ``information services'' that run 
over the network (akin to ``enhanced services''). In a 1998 report to 
Congress, the Commission attempted to indicate how it might apply the 
new law in the Internet context. Approximately 98 percent of households 
with Internet connections then used traditional telephone service to 
``dial up'' their Internet access service provider, which was typically 
a separate entity from their telephone company. In the report to 
Congress--widely known as the ``Stevens Report,'' after Senator Ted 
Stevens--the Commission stated

[[Page 36074]]

that Internet access service as it was then being provided was an 
``information service.'' The Stevens Report declined to address whether 
entities that provided Internet connectivity over their own network 
facilities were offering a separate telecommunications component. The 
courts, rather than the Commission, first answered that question.
    14. In 2000 the United States Court of Appeals for the Ninth 
Circuit held that cable modem Internet service is a telecommunications 
service to the extent that the cable operator ``provides its 
subscribers Internet transmission over its cable broadband facility'' 
and an information service to the extent the operator acts as a 
``conventional [Internet Service Provider (ISP)].'' At the time, the 
Commission's Computer Inquiry rules required telephone companies to 
offer their digital subscriber line (DSL) transmission services as 
telecommunications services. The Ninth Circuit's decision thus put 
cable companies' broadband transmission service on a regulatory par 
with DSL transmission service.
    15. In 2002, the Commission exercised its authority to interpret 
the Act and disagreed with the Ninth Circuit. Addressing the 
classification of cable modem service, the Commission observed that 
``[t]he Communications Act does not clearly indicate how cable modem 
service should be classified or regulated.'' Based on a factual record 
that had been compiled largely in 2000, the Commission's Cable Modem 
Declaratory Ruling described cable modem service as ``typically 
includ[ing] many and sometimes all of the functions made available 
through dial-up Internet access service, including content, e-mail 
accounts, access to news groups, the ability to create a personal Web 
page, and the ability to retrieve information from the Internet, 
including access to the World Wide Web.'' The Commission noted that 
cable modem providers often consolidated these functions ``so that 
subscribers usually do not need to contract separately with another 
Internet access provider to obtain discrete services or applications, 
such as an e-mail account or connectivity to the Internet, including 
access to the World Wide Web.'' The Commission defined cable modem 
service as ``a service that uses cable system facilities to provide 
residential subscribers with high-speed Internet access, as well as 
many applications or functions that can be used with high-speed 
Internet access.''
    16. The Commission identified a portion of the cable modem service 
it called ``Internet connectivity,'' which it described as establishing 
a physical connection to the Internet and interconnecting with the 
Internet backbone, and sometimes including protocol conversion, 
Internet Protocol (IP) address number assignment, domain name 
resolution through a domain name system (DNS), network security, 
caching, network monitoring, capacity engineering and management, fault 
management, and troubleshooting. The Ruling also noted that ``[n]etwork 
monitoring, capacity engineering and management, fault management, and 
troubleshooting are Internet access service functions that are 
generally performed at an ISP or cable operator's Network Operations 
Center (NOC) or back office and serve to provide a steady and accurate 
flow of information between the cable system to which the subscriber is 
connected and the Internet.'' The Commission distinguished these 
functions from ``Internet applications [also] provided through cable 
modem services,'' including ``e-mail, access to online newsgroups, and 
creating or obtaining and aggregating content,'' ``home pages,'' and 
``the ability to create a personal Web page.''
    17. The Commission found that cable modem service was ``an offering 
. . . which combines the transmission of data with computer processing, 
information provision, and computer interactivity, enabling end users 
to run a variety of applications.'' The Commission further concluded 
that, ``as it [was] currently offered,'' cable modem service as a whole 
met the statutory definition of ``information service'' because its 
components were best viewed 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 thus 
concluded that cable modem service ``does not include an offering of 
telecommunications service to subscribers.''
    18. When the United States Supreme Court considered the Cable Modem 
Declaratory Ruling in the Brand X case, all parties agreed that cable 
modem service either is or includes an information service. The Court 
therefore focused, in pertinent part, on whether the Commission 
permissibly interpreted the Communications Act in concluding that cable 
modem service providers offer only an information service, rather than 
a separate telecommunications service and information service. The 
Court's opinion reaffirms 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 
``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 * * * involves difficult policy 
choices that agencies are better equipped to make than courts.'' 
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.''
    19. Turning specifically to the Communications Act, Justice Thomas 
wrote: ``[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.'' ``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.'' 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.''
    20. 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.'' 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.''
    21. After the Supreme Court affirmed the Commission's authority to 
classify cable modem service, the Commission eliminated the resulting 
regulatory asymmetry between cable companies and other broadband 
Internet service providers by issuing follow-on orders that extended 
the information service classification to broadband Internet services 
offered over DSL and other wireline facilities, power lines, and 
wireless facilities. The Commission nevertheless allowed these 
providers, at their own discretion, to offer the broadband transmission 
component of their Internet service as a separate telecommunications 
service. Exercising that flexibility, providers--including more than 
840 incumbent local

[[Page 36075]]

telephone companies--currently offer broadband transmission as a 
telecommunications service expressly separate from their Internet 
information service.

The Commission's Established Policy Goals

    22. In the 1996 Act, Congress made clear its desire that the 
Commission promote the widespread availability of affordable Internet 
connectivity services, directing the Commission to adopt universal 
service mechanisms to ensure that ``[a]ccess to advanced 
telecommunications and information services * * * [is] provided in all 
regions of the Nation.'' Congress also instructed the Commission to 
``encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans.'' The Commission's 
classification decisions in the Cable Modem Declaratory Ruling and the 
later follow-on orders were intended to support the policy goal of 
encouraging widespread deployment of broadband. The Commission's 
hypothesis was that classifying all of broadband Internet service as an 
information service, outside the scope of any specific regulatory duty 
in the Act, would help achieve Congress' aims.
    23. At the same time, the Commission acted with the express 
understanding that its information service classifications would not 
impair the agency's ability to protect the public interest. For 
example, when the Commission permitted telephone companies to offer 
broadband Internet service as solely an information service, it 
emphasized that this new classification would not remove the agency's 
``ample'' Title I authority to accomplish policy objectives related to 
consumer protection, network reliability, and national security. The 
Wireline Broadband Report and Order thus was accompanied by a Broadband 
Consumer Protection Notice, in which the Commission sought comment on 
``a framework that ensures that consumer protection needs are met by 
all providers of broadband Internet access service, regardless of the 
underlying technology.'' The Commission stressed that its ancillary 
jurisdiction was ``ample to accomplish the consumer protection goals we 
identify.'' The Commission similarly referenced the Broadband Consumer 
Protection Notice when it extended the information service 
classification to broadband Internet services offered over power lines 
and wireless facilities.
    24. On the same day it adopted the Wireline Broadband Report and 
Order and Broadband Consumer Protection Notice, moreover, the 
Commission unanimously adopted the Internet Policy Statement. In this 
Statement, the Commission articulated four principles ``[t]o encourage 
broadband deployment and preserve and promote the open and 
interconnected nature of the public Internet,'' and to ``foster 
creation adoption and use of Internet broadband content, applications, 
services and attachments, and to insure consumers benefit from the 
innovation that comes from competition.'' The principles are:
     consumers are entitled to access the lawful Internet 
content of their choice;
     consumers are entitled to run applications and use 
services of their choice, subject to the needs of law enforcement;
     consumers are entitled to connect their choice of legal 
devices that do not harm the network; and
     consumers are entitled to competition among network 
providers, application and service providers, and content providers. 
All principles are subject to reasonable network management.
    The Commission expressed confidence that it had the ``jurisdiction 
necessary to ensure that providers of telecommunications for Internet 
access * * * are operated in a neutral manner.''

Legal Developments

    25. Recent legislative and judicial developments suggest a need to 
revisit the Commission's approach to broadband Internet service. Since 
2008, Congress has passed three significant pieces of legislation that 
reflect its strong interest in ubiquitous deployment of high speed 
broadband communications networks and bear on the Commission's policy 
goals for broadband: the 2008 Farm Bill directing the Chairman to 
submit to Congress ``a comprehensive rural broadband strategy,'' 
including recommendations for the rapid buildout of broadband in rural 
areas and for how federal resources can ``best * * * overcome obstacles 
that impede broadband deployment''; the Broadband Data Improvement Act, 
to improve data collection and ``promote the deployment of affordable 
broadband services to all parts of the Nation''; and the Recovery Act, 
which, among other things, appropriated up to $7.2 billion to evaluate, 
develop, and expand access to and use of broadband services, and 
required the Commission to develop the National Broadband Plan to 
ensure that every American has ``access to broadband capability and * * 
* establish benchmarks for meeting that goal.'' In the Recovery Act, 
Congress further directed the Commission to produce a ``detailed 
strategy for achieving affordability of such service and maximum 
utilization of broadband infrastructure and service by the public,'' 
and a ``plan for [the] use of broadband structure and services'' to 
advance national goals such as public safety, consumer welfare, and 
education. These three pieces of legislation, passed within a span of 
nine months, make clear that the Commission must retain its focus on 
implementing broadband policies that encourage investment, innovation, 
and competition, and promote the interests of consumers.
    26. Even more recently, the D.C. Circuit's rejection of the 
Commission's attempt to address a broadband Internet service provider's 
unreasonable traffic disruption practices has cast a shadow over the 
Commission's prior understanding of its authority over broadband 
Internet services. In late 2007, the Commission received a complaint 
alleging that Comcast was blocking peer-to-peer traffic in violation of 
the Internet Policy Statement. In 2008, the Commission granted the 
complaint and directed Comcast to disclose specific information about 
its network management practices to the Commission, submit a compliance 
plan detailing how it would transition away from unreasonable network 
management practices, and disclose to the public the network management 
practices it intends to use going forward. Comcast challenged that 
decision in the D.C. Circuit, arguing (among other things) that the 
Commission lacks authority to prohibit a broadband Internet service 
provider from engaging in discriminatory practices that violate the 
four principles the Commission announced in 2005.
    27. On April 6, 2010, the D.C. Circuit granted Comcast's petition 
for review and vacated the Commission's enforcement decision, holding 
that the Commission had ``failed to tie its assertion of ancillary 
authority over Comcast's Internet service to any `statutorily mandated 
responsibility.''' The Commission had argued that ending Comcast's 
secret practices was ancillary to the statutory objectives Congress 
established for the Commission in sections 1 and 230(b) of the Act. The 
court rejected that argument on the ground that those sections are 
merely statements of policy by Congress--as opposed to grants of 
regulatory authority--and thus were not sufficient to support 
Commission action against Comcast. The court also rejected the 
Commission's position that various

[[Page 36076]]

other statutory provisions supported ancillary authority. As to section 
706 of the Telecommunications Act of 1996, the court noted that the 
agency had previously interpreted section 706 as not constituting a 
grant of authority and held that the Commission was bound by that 
interpretation for purposes of the case. The court also rejected the 
agency's reliance on sections 201, 256, 257, and 623 of the 
Communications Act.

Approaches to Classification

    28. In light of the legislative and judicial developments described 
above, we seek comment on whether our existing legal framework 
adequately supports the Commission's previously stated policy goals for 
broadband. First, we ask whether the current information service 
classification of broadband Internet service can still support 
effective performance of the Commission's core responsibilities. 
Second, we ask for comment on the legal and practical consequences of 
classifying the Internet connectivity component of broadband Internet 
service as a ``telecommunications service'' to which the full weight of 
Title II requirements would apply, and whether such a classification 
would accurately reflect the current market facts. Finally, we identify 
and invite comment on a third way, under which the Commission would 
classify the Internet connectivity portion of broadband Internet 
service as a telecommunications service but would simultaneously 
forbear, using the section 10 authority Congress delegated to us, from 
all but a small handful of provisions necessary for effective 
implementation of universal service, competition and small business 
opportunity, and consumer protection policies.
    29. The Commission has frequently expressed its commitment to 
protecting consumers and promoting innovation, investment, and 
competition in the broadband context. We reaffirm that commitment here 
and ask commenters to address--in general terms, as well as in response 
to the specific questions posed below--which of the three alternative 
regulatory frameworks for broadband Internet service (or what other 
framework) will best position the Commission to advance these 
fundamental goals. We note that because the broadband Internet service 
classification questions posed in this part II.B involve an 
interpretation of the Communications Act, the notice and comment 
procedures we follow here are not required under the Administrative 
Procedure Act. In order to provide the greatest possible opportunity 
for public comment, however, we are soliciting initial and reply 
comments via the traditional filing mechanisms, as well as input 
through our recently expanded online participation tools.

Continued Information Service Classification and Reliance on Ancillary 
Authority

    30. In this part, we seek comment on maintaining the current 
classification of wired broadband Internet service as a unitary 
information service. Under this approach, we would rely primarily on 
our ancillary authority to implement the Commission's broadband 
policies. We seek comment on whether our ancillary authority continues 
to provide an adequate legal foundation. Throughout the last decade, 
the Commission has stated its consistent understanding that Title I 
provided the Commission adequate authority to support effective 
performance of its core responsibilities. Commissioners, including the 
two former Chairmen who urged the information service approach, as well 
as cable and telephone companies and other interested parties, 
individually expressed this understanding. In Brand X, the Supreme 
Court appeared to confirm this widely held view, stating that ``the 
Commission remains free to impose special regulatory duties on 
facilities-based ISPs under its Title I ancillary jurisdiction.'' The 
Comcast decision, however, causes us to reexamine our ability to rely 
on Title I as the legal basis for implementing broadband policies.
    31. Some have suggested that although the D.C. Circuit rejected the 
Commission's theory of ancillary authority in Comcast, the Commission 
can still accomplish many of its most important broadband-related goals 
without changing its classification of broadband Internet service as a 
unitary information service. We seek comment on the overall scope of 
the Commission's authority regarding broadband Internet service in the 
wake of the Comcast decision. Below we identify and seek comment on 
several particular concerns.

Universal Service

    32. Can the Commission reform its universal service program to 
support broadband Internet service by asserting direct authority under 
section 254, combined with ancillary authority under Title I? AT&T, for 
example, observes that section 254 provides that ``[a]ccess to advanced 
telecommunications and information services should be provided in all 
regions of the nation,'' and that the Commission's universal service 
programs ``shall'' be based on this and other enumerated principles. 
AT&T notes that the Commission's information service classification for 
broadband Internet service creates ``tension'' with ``the text of 
Section 254(c)(1), which states that `[u]niversal service is an 
evolving level of telecommunications services that the Commission shall 
establish periodically under this section.' '' But, AT&T suggests, 
``[o]ther evidence in the statutory text makes clear that Congress did 
not intend to disable the Commission from using universal service to 
support information services.'' For example,
     ``Section 254(b) requires the Commission to use universal 
service to promote access to `advanced telecommunications and 
information services,' ''
     ``Section 254(c) * * * [refers] to an `evolving level of 
telecommunications services that the Commission shall establish 
periodically under this section[,]' '' and
     Section 254(c)(2) ``expressly authoriz[es] the Joint Board 
and the Commission to `modif[y] * * * the definition of the services 
that are supported by Federal universal support mechanisms.' '' The 
reference to ``services'' in section 254(c)(2) may suggest that 
Congress intended universal service policies to support information 
services, even though the definition of universal service in section 
254(c)(1) is explicitly limited to ``telecommunications services.''
    AT&T explains that section 254 ``contains competing directives,'' 
but asserts that ``the schizophrenic nature of Section 254 is simply 
another example of the many ways in which the 1996 Act is not a `model 
of clarity.' ''
    33. We seek comment on whether we may interpret section 254 to give 
the Commission authority to provide universal service support for 
broadband Internet service if that service is classified as a unitary 
information service. Could we provide support to information service 
providers consistent with section 254(e), which says that ``only an 
eligible telecommunications carrier designated under section 214(e) 
shall be eligible to receive specific Federal universal service 
support,'' and 214(e), which sets forth the framework for designating 
``telecommunications carrier[s] * * * eligible to receive universal 
service support''?
    34. AT&T posits that even after the Comcast decision, the 
Commission could bolster its reliance on section 254 by also relying on 
several other provisions of the Act. First, the ``necessary and proper 
clause'' in section

[[Page 36077]]

4(i) of the Act allows the Commission to ``perform any and all acts, 
make such rules and regulations, and issue such orders, not 
inconsistent with this chapter, as may be necessary in the execution of 
its functions.'' Second, the Act makes clear that the Commission's 
``core statutory mission'' is to ``make available, so far as possible, 
to all the people of the United States * * * a rapid, efficient, 
Nation-wide and world-wide wire and radio communication service with 
adequate facilities at reasonable charges.'' Third, the text of 254, as 
described above, suggests that Congress intended the Commission to 
support universal broadband Internet service. Finally, the policy 
directive in section 706 of the 1996 Act instructs the Commission to 
encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans. AT&T contends that 
section 706's directive supports the view that section 254 provides 
authority for supporting broadband Internet services with monies from 
the Universal Service Fund. We seek comment on AT&T's analysis.
    35. The National Cable and Telecommunications Association (NCTA) 
has put forward a similar legal theory rooted in section 254(h)(2) of 
the Communications Act. That section gives the Commission authority 
``to enhance * * * access to advanced telecommunications and 
information services for all public and non-profit elementary and 
secondary school classrooms, health care providers, and libraries.'' 
NCTA contends that because ``the use of broadband in the home has 
become a critical component of the American education system * * * it 
is entirely reasonable to read the statutory directive to support 
Internet access for classrooms to include support for residential 
broadband service to households where it is reasonably likely that such 
service would be used for educational purposes.'' Could the Commission 
interpret section 254(h)(2) to permit this type of support for 
broadband Internet service? Is this approach a permissible extension of 
the Commission's existing E-Rate program? Would this approach enable 
the Commission to provide support for broadband Internet service only 
to households with school-aged children, or could the Commission 
provide support for adult education as well?
    36. Another legal theory for promoting broadband deployment under 
the Commission's current classification of broadband Internet service 
rests directly on section 706 of the 1996 Act. Section 706(a) states 
that the Commission ``shall encourage the deployment on a reasonable 
and timely basis of advanced telecommunications capability to all 
Americans * * * by utilizing, in a manner consistent with the public 
interest, convenience, and necessity, price cap regulation, regulatory 
forbearance, measures that promote competition in the local 
telecommunications market, or other regulating methods that remove 
barriers to infrastructure investment.'' Section 706(c) defines 
``advanced telecommunications capability'' as ``high-speed, switched, 
broadband telecommunications capability that enables users to originate 
and receive high-quality voice, data, graphics, and video 
telecommunications using any technology.'' The D.C. Circuit rejected 
section 706(a) as a basis for the Commission's Comcast order because 
``[i]n an earlier, still-binding order * * * the Commission ruled that 
section 706 `does not constitute an independent grant of authority,' '' 
and ``agencies `may not * * * depart from a prior policy sub silentio.' 
'' We seek comment on whether the Commission should revisit and change 
its conclusion that section 706(a) is not an independent grant of 
authority. What findings would be necessary to reverse that 
interpretation? If the Commission were to find that section 706(a) is 
an independent grant of authority, would that subsection, read in 
conjunction with sections 4(i) and 254, provide a firm basis for the 
Commission to provide universal service support for broadband Internet 
services?
    37. Some parties have suggested that the Commission could rely on 
section 706(b) as a source of authority to support broadband Internet 
service with Universal Service Fund money. That section provides that:

    [t]he Commission shall * * * annually * * * initiate a notice of 
inquiry concerning the availability of advanced telecommunications 
capability to all Americans * * * . In the inquiry, the Commission 
shall determine whether advanced telecommunications capability is 
being deployed to all Americans in a reasonable and timely fashion. 
If the Commission's determination is negative, it shall take 
immediate action to accelerate deployment of such capability by 
removing barriers to infrastructure investment and by promoting 
competition in the telecommunications market.

    We seek comment on whether we could interpret section 706(b) as an 
independent grant of authority. Specifically, we ask whether Congress's 
direction that the Commission take ``immediate action'' if it makes a 
negative determination about the state of broadband deployment 
authorizes the Commission to provide universal service support to spur 
that deployment. Would any such support be contingent on continued 
negative findings in the annual broadband availability inquiry? Under 
section 706(b), would universal service programs have to be tailored to 
particular geographic areas where deployment is lagging, or could the 
Commission implement the program on a national basis? Would the 
Commission be limited to direct support for deployment, or could the 
Commission interpret section 706(b) also to support broadband Internet 
services to low-income populations, such as is the case with our 
support for voice services in the Lifeline and Link Up programs?
    38. For each of these legal theories, the Commission seeks comment 
on the administrative record that would be needed to successfully 
defend against a legal challenge to implementation of the theory. Would 
adopting these theories be consistent with the federal Anti-Deficiency 
Act and Miscellaneous Receipts Act? What other issues should the 
Commission consider in evaluating these legal theories? Are there other 
legal frameworks that would allow us to promote universal service in 
the broadband context without revisiting our classification decisions?

Privacy

    39. The Commission has long supported protecting the privacy of 
users of broadband Internet services. In 2005, the Commission 
emphasized in the Wireline Broadband Report and Order 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.'' The Commission believed at the time that it 
had jurisdiction to enforce privacy requirements, and ``note[d] that 
long before Congress enacted section 222 of the Act,'' which requires 
providers of telecommunications services to protect confidential 
information, ``the Commission had recognized the need for privacy 
requirements associated with the provision of enhanced services.'' In 
2007, the Commission extended the privacy protections of section 222 to 
interconnected VoIP services without resolving whether interconnected 
VoIP services are telecommunications services or information services. 
More recently, the National Broadband Plan recommended that the 
Commission work with the Federal Trade Commission (FTC) to protect 
consumers' privacy in the broadband context. Indeed, we fully intend 
that our efforts with regard to

[[Page 36078]]

privacy complement those of the FTC. We seek comment on the best 
approach for ensuring privacy for broadband Internet service users 
under the Commission's current information service classification, and 
any legal obstacles to protecting privacy that may exist if the 
Commission retains that classification.

Access for Individuals With Disabilities

    40. Section 255 requires telecommunications service providers and 
equipment manufacturers to make their services and equipment accessible 
to individuals with disabilities, unless not readily achievable. 
Section 251(a)(2) requires telecommunications carriers ``not to install 
network features, functions, or capabilities that do not comply with 
the guidelines and standards established pursuant to section 255.'' In 
the 2005 Wireline Broadband Report and Order, the Commission committed 
to exercise its authority ``to ensure achievement of important policy 
goals of section 255'' in the broadband context. In 2007, the 
Commission exercised its ancillary authority to extend section 255 to 
interconnected VoIP providers, and in 1999 the Commission similarly 
relied on ancillary authority to extend disability-related requirements 
to voicemail and interactive menu services. The Commission also 
exercised ancillary authority to extend section 225 telecommunications 
relay service obligations under the Commission's rules to providers of 
interconnected VoIP. More recently, a unanimous Commission stated its 
belief that disabilities should not stand in the way of Americans' 
``opportunity to benefit from the broadband communications era.'' The 
Commission has also announced its intent to consider how ``[t]o better 
enable Americans with disabilities to experience the benefits of 
broadband.'' We seek comment on the best legal approaches to extending 
disability-related protections to broadband Internet service users 
under the Commission's current information service classification. 
Could we exercise ancillary authority to ensure access for people with 
disabilities? Could the Commission rely on the mandate in section 
706(a) to ``encourage the deployment on a reasonable and timely basis 
of advanced telecommunications capability to all Americans,'' or the 
similar directive in section 706(b)?

Public Safety and Homeland Security

    41. As noted above, Congress created the Commission, in part, ``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 
communications.'' Comcast did not address questions of national 
defense, public safety, homeland security, or national security. Are 
there bases for asserting ancillary authority over broadband Internet 
service providers for purposes of advancing such vital and clearly 
enumerated Congressional purposes? Could the Commission use its 
ancillary authority as a legal foundation for protecting cyber security 
and other public safety initiatives, such as 911 emergency and public 
warning and alerting services, with respect to broadband Internet 
service? Specifically, could the Commission rely on provisions in Title 
I either alone or in combination with provisions in Title II or Title 
III to support these public safety purposes, as well as data reporting 
and/or network reliability and resiliency standards with respect to 
broadband Internet services? As noted below, Title III contains several 
provisions that enable the Commission to impose on spectrum licensees 
obligations that are in the public interest. With the convergence of 
the various modes of communications networks, many broadband Internet 
services incorporate wireline and wireless elements. What would be the 
effect if the Commission employed its Title III authority to achieve 
public safety goals with respect to wireless elements of such converged 
services? Could the Commission also regulate wireline elements of such 
services through its Title III and Title I authority because of the 
wireless elements incorporated into these services, or in the interests 
of ensuring regulatory parity and predictability? Could the Commission 
rely on the mandate in section 706(a) to ``encourage the deployment on 
a reasonable and timely basis of advanced telecommunications capability 
to all Americans'' to ensure the security, reliability and resiliency 
of wired broadband Internet services, or to advance other public safety 
and homeland security initiatives?

Addressing Harmful Practices by Internet Service Providers

    42. Although the D.C. Circuit rejected the legal theory the 
Commission relied on to address Comcast's interference with its 
customers' peer-to-peer transmissions, some have suggested that other 
theories of ancillary authority could support Commission action to 
protect against harmful practices of this sort. For example, one 
commentator has proposed that the Commission assert ancillary authority 
pursuant to sections 251(a) and 256 of the Act, which address 
interconnection by telecommunications carriers. Although these 
provisions apply specifically to telecommunications carriers, the 
proposal asserts that they are not explicitly limited to the 
telecommunications services provided by such carriers.
    43. Section 251(a) requires each carrier ``to interconnect directly 
or indirectly with the facilities and equipment of other 
telecommunications carriers.'' Reading section 251(a) as limited to 
telecommunication services, it has been suggested, ``would make [the 
Commission's] rules promoting interconnection irrelevant'' as the major 
carriers move increasingly toward providing services over broadband 
Internet networks. Likewise, ``[i]n a world where traditional public 
telecommunications networks and newer Internet-data-transmission 
networks are pervasively interconnected,'' it has been asserted, ``it 
makes no sense to preclude the FCC's interoperability efforts [pursuant 
to section 256] from affecting information services.''
    44. We seek comment on this reasoning. What factual findings would 
the Commission have to make to support reliance on sections 251(a) and/
or 256 with respect to broadband Internet service? Would those facts 
support exercise of authority sufficient to implement the Commission's 
broadband policies in full, or in part? Under this approach, could the 
Commission address conduct by broadband Internet service providers that 
are not also telecommunications carriers? Does reliance on sections 
251(a) and 256 limit Commission authority to protect competition and 
consumers to only those networks that are interconnected with the 
public telephone network? If so, what are the practical implications of 
this limitation? What is the significance of the Comcast decision, 
which held that ``[t]he Commission's attempt to tether its assertion of 
ancillary authority to section 256'' was flawed in that context because 
section 256 states that ``[n]othing in this section shall be construed 
as expanding or limiting any authority that the Commission'' otherwise 
has under law? What else should the Commission consider as it evaluates 
the significance of sections 251(a) and 256 in this proceeding?
    45. Section 202(a) of the Communications Act makes it unlawful for 
any common carrier to make any unjust or unreasonable discrimination in 
charges, practices, classifications, regulations, facilities, or 
services for or in connection with like communication

[[Page 36079]]

service, directly or indirectly, by any means or device, or to make or 
give any undue or unreasonable preference or advantage to any 
particular person, class of persons, or locality, or to subject any 
particular person, class of persons, or locality to any undue or 
unreasonable prejudice or disadvantage.
    It has been suggested that ``[i]f network operators are allowed the 
option of offering broadband Internet access services on a completely 
unregulated basis, that option could enable them to end run Section 
202(a)'' as carriers move toward providing services over broadband 
Internet networks, ``and render that provision a dead letter.'' We seek 
comment on the factual and legal assumptions underlying this argument, 
and whether this reasoning provides the Commission authority to address 
practices of broadband Internet service providers that endanger 
competition or consumer welfare.
    46. As the Commission argued to the D.C. Circuit in the Comcast 
case, section 706(a) might also provide a basis for prohibiting harmful 
practices of Internet service providers. As noted above, the D.C. 
Circuit gave no weight to section 706(a) because the Commission had 
determined in a prior order that section 706(a) is not an independent 
grant of authority. We seek comment on the best reading of section 
706(a). We also seek comment on whether section 706(b) could provide a 
legal foundation for rules addressing harmful practices by Internet 
service providers. If so, could the Commission adopt such rules on a 
national basis, or would it have to tailor its rules to particular 
geographic areas? Would its rules depend on continued negative 
determinations in the annual broadband availability report?
    47. The Comcast opinion also rejected arguments that other 
provisions of Titles II, III, and VI of the Communications Act 
supported the Commission's action against Comcast because Internet-
enabled communications services that depend on broadband Internet 
service--such as VoIP and Internet video services--may affect the 
regulated operations of telephony common carriers, broadcasters, and 
cable operators. The court did not address the merits of these 
theories, but rather rejected them because they were not sufficiently 
articulated in the underlying Commission order. Could such theories 
provide sufficient support for the Commission to address harmful 
practices of Internet service providers? What type of factual record 
would be required to support such theories? If the Commission relied on 
these theories, could it prohibit behavior--such as the covert blocking 
of online gaming or e-commerce services, perhaps--that does not 
obviously affect services clearly addressed by Titles II, III, or VI? 
Could the Commission rely on sections 624 or 629 of the Act to 
establish broadband policy related to cable modem service?
    48. We also invite comment on whether the portions of section 
214(a) addressing discontinuance, reduction, and impairment of service 
provide a potential basis for an assertion of ancillary authority 
regarding harmful Internet service provider practices. That provision 
mandates that a common carrier may not ``impair service to a 
community'' without prior Commission approval. Impairment, in the 
section 214(a) context, refers to both ``the adequacy'' and ``quality'' 
of the service provided.
    49. Are there other statutory provisions that could support the 
Commission's exercise of ancillary authority in this area? Do any 
statutory provisions preclude such action if the Commission retains its 
information service classification?
    50. Other harmful practices by broadband Internet service providers 
may involve a failure to disclose practices to consumers. For instance, 
one problem identified by the Commission in the Comcast case was 
Comcast's failure to identify to customers its practice of degrading 
peer-to-peer traffic. If the Commission maintains its information 
services framework for broadband Internet services, will it have 
sufficient authority to address these concerns?

Other Approaches to Oversight

    51. Finally, we ask for public input on whether there are other 
approaches to fulfilling our role for broadband Internet services that 
would provide meaningful oversight consistent with maintaining robust 
incentives for innovation and investment. For instance, in a number of 
proceedings commenters have suggested that the Commission should pursue 
policies based on standards set by third parties and enforced by the 
Commission. In the Open Internet proceeding, Verizon and Google suggest 
that the Commission could create technical advisory groups ``comprised 
of a range of stakeholders with technical expertise'' to develop best 
practices, resolve disputes, issue advisory opinions, and coordinate 
with standards-setting bodies. Although Verizon and Google ``may not 
necessarily agree on which federal agency does or should have authority 
over these matters,'' they ``do recognize as a policy matter that there 
should be some backstop role for federal authorities to prevent harm to 
competition and consumers if or when bad actors emerge anywhere in the 
Internet space, and * * * agree that involvement should occur only 
where necessary on a case-by-case base basis.'' Commenters in other 
proceedings have suggested similar approaches. We ask commenters to 
address whether the Commission should pursue a regime in which one or 
more third parties play a major role in setting standards and best 
practices relative to maintaining our policy goals for broadband 
Internet service. Pursuant to what authority could the Commission 
create a third party advisory group? What authority could the 
Commission delegate to such a third party or third parties? Would it be 
appropriate for other federal governmental entities, such as the FTC, 
to have a role in such an approach? Would the Commission have 
sufficient ancillary authority under its information service framework 
to serve as a backstop if the third party is unable to resolve a 
dispute or implement a necessary policy?

Application of All Title II Provisions

    52. Title II of the Communications Act provides the Commission 
express authority to implement, for telecommunications services, rules 
furthering universal service, privacy, access for persons with 
disabilities, and basic consumer protection, among other federal 
policies. We seek comment on whether the legal and policy developments 
discussed above and the facts of today's broadband marketplace suggest 
a need to classify Internet connectivity as a telecommunications 
service, so as to trigger this clear authority. We also ask whether 
that approach would be consistent with our goals of promoting 
innovation and investment in broadband, or would result in 
overregulation of a service that has undergone rapid and generally 
beneficial development under our deregulatory approach.

Current Facts in the Broadband Marketplace

    53. In the Cable Modem Declaratory Ruling, the Commission observed 
that ``the cable modem service business is still nascent, and the shape 
of broadband deployment is not yet clear,'' and nearly a decade has 
passed since the Commission examined the facts surrounding broadband 
Internet service in the Cable Modem Declaratory Ruling. In this part we 
therefore ask whether or not the facts of today's broadband marketplace 
support a conclusion that providers now offer Internet connectivity as 
a separate

[[Page 36080]]

telecommunications service. In addition to the specific questions we 
ask below, we seek comment on what facts are most relevant to this 
inquiry. The Commission has explained that because the Act defines 
``telecommunications service'' as `` `the offering of 
telecommunications for a fee directly to the public[,]' * * * whether a 
telecommunications service is being provided turns on what the entity 
is `offering * * * to the public,' and customers' understanding of that 
service.'' Similarly, in Brand X, the majority opinion noted that 
``[i]t is common usage to describe what a company `offers' to a 
consumer as what the consumer perceives to be the integrated finished 
product.'' The Brand X dissent asserted that ``[t]he relevant question 
is whether the individual components in a package being offered still 
possess sufficient identity to be described as separate objects of the 
offer, or whether they have been so changed by their combination with 
the other components that it is no longer reasonable to describe them 
in that way.'' The Brand X majority opinion and the dissent examined 
consumers' understanding of the services, analogies to other services, 
and technical characteristics of the services being provided. What 
factors should the Commission consider in order to assess the proper 
classification of broadband Internet connectivity service?
    54. Status of Current Offerings. Is wired broadband Internet 
service (or any telecommunications component thereof) held out ``for a 
fee directly to the public, or to such classes of users as to be 
effectively available directly to the public,'' for instance through a 
tariff such as the NECA DSL Access Service Tariff or through 
facilities-based Internet service providers' public Web sites? A 
provider is engaged in common carriage if it ``make[s] capacity 
available to the public indifferently''; it can be compelled to offer a 
common carriage service if ``the public interest requires common 
carrier operation of the proposed facility.'' If so, we seek specific 
examples of such offerings. If not, does the Commission have legal 
authority to compel the offering of a broadband Internet 
telecommunications service that is not currently offered? If legal 
authority exists, would it be appropriate for the Commission to 
exercise such authority? Are there First Amendment constraints on the 
Commission's ability to compel the offering of such a service? Would 
such a compulsion raise any concerns under the Takings Clause of the 
Fifth Amendment?
    55. Services Offered Today. When the Commission gathered the record 
for its classification orders, broadband Internet service was offered 
with various services--such as e-mail, newsgroups, and the ability to 
create and maintain a web page--that we described as ``Internet 
applications.'' The Commission understood that subscribers to broadband 
Internet services ``usually d[id] not need to contract separately'' for 
``discrete services or applications'' such as e-mail. We seek comment 
on whether this remains the case. To what extent are these and other 
applications and services sold with wired broadband Internet service 
today? Are providers offering the same applications and services that 
they did when the Commission began building the record in 2000, or have 
their offerings changed? Are these applications and services always 
packaged with Internet connectivity, or can consumers choose not to 
purchase them? What test(s) should the Commission use to evaluate 
whether particular features are today integrated with the underlying 
Internet connectivity?
    56. Consumer Use and Perception. Next, we seek comment on how 
consumers use and perceive broadband Internet service. Do customers 
today perceive that they are receiving one unitary service comprising 
Internet connectivity as well as features and functionalities, or 
Internet connectivity as the main service, with additional features and 
functionalities simultaneously offered and provided? We note that under 
Commission precedent, services composing a single bundle at the point 
of sale--for instance, local telephone service packaged with voice 
mail--can retain distinct identities as separate offerings for 
classification purposes. To what extent do consumers continue to rely 
on the features and applications that are provided as part of their 
broadband Internet service package, and to what extent have they 
increased their use of applications and services offered by third party 
providers? For instance, some users now rely on free e-mail services 
provided by companies such as Yahoo and Microsoft, social networking 
sites including Facebook and MySpace, public message boards like those 
found in the Google Groups service, web portals like Netvibes, web 
hosting services like Go Daddy, and blog hosting services like TypePad. 
How does the use of these third party services compare with the use of 
similar services offered by broadband Internet service providers? To 
what extent do consumers rely on their Internet service provider or 
other providers for security features and spam filtering? To what 
extent do consumers rely on their Internet service provider, as opposed 
to alternative providers, for content such as news and medical advice? 
To the extent broadband Internet service providers offer applications 
to consumers, do consumers view them as an integrated part of the 
Internet connectivity offering? To what extent do consumers today use 
``the high-speed wire always in connection with the information-
processing capabilities provided by Internet access''?
    57. Marketing Practices. We also seek comment on how broadband 
Internet service providers market their services. What do broadband 
Internet service providers' marketing practices suggest they are 
offering to the public? What features do broadband Internet service 
providers highlight in their advertisements to consumers? How do the 
companies describe their services? What are the primary dimensions of 
competition among broadband Internet service providers? Are cable modem 
and other wired services marketed or understood differently from each 
other, or in a generally similar way?
    58. Technical and Functional Characteristics. In addition, to aid 
our understanding of what carriers offer to consumers, we seek to 
develop a current record on the technical and functional 
characteristics of broadband Internet service, and whether those 
characteristics have changed materially in the last decade. For 
example, DNS lookup is now offered to consumers on a standalone basis, 
and web page caching is offered by third party content delivery 
networks. Web browsers, for example, are often installed separately by 
users. We ask commenters to describe the technical characteristics of 
broadband Internet service, including identifying those functions that 
are essential for web browsing and other basic consumer Internet 
activities. What are the necessary components of web browsing? How is 
caching provided to end users, and how have caching services changed 
over time? How do routing functions and DNS directory lookup enable 
users to access information online?
    59. In classifying services, the Commission has taken into account 
the purpose of the feature or service at issue. For example, some 
features and services that meet the literal definition of ``enhanced 
service,'' but do not alter the fundamental character of the associated 
basic transmission service, are ``adjunct-to-basic'' and are treated as 
basic (i.e., telecommunications) services even though they go beyond 
mere transmission. Do any of the features and

[[Page 36081]]

functionalities offered by broadband Internet service providers have 
relevant similarities to or differences from those that resemble an 
information service but are treated differently under Commission 
precedent? Similarly, which, if any, of the ``Internet connectivity'' 
functions listed in the Cable Modem Declaratory Ruling fall within the 
management exceptions to the information services category, and why?
    60. Some have suggested that the Commission should take account of 
the different network ``layers'' that compose the Internet. Are 
distinctions between the functional ``layers'' that compose the 
Internet relevant and useful for classifying broadband Internet 
service? For example, the Commission could distinguish between 
physical, logical, and content and application layers, and identify 
some of those layers as elements of a telecommunications service and 
others as elements of an information service. (As discussed above, the 
Commission historically has distinguished between Internet connectivity 
functions and Internet applications.) If the Commission adopted this 
approach, which of the services offered by wired broadband Internet 
service providers should be included in each category? Are the 
boundaries of each layer sufficiently clear that such an approach would 
be workable in practice? Would such an approach have implications for 
services other than broadband Internet service?
    61. Competition. We also seek comment on the level of competition 
among broadband Internet service providers. The Commission adopted the 
unitary information service classification for broadband Internet 
services in part ``to encourage facilities-based competition.'' The 
Commission envisioned competition among cable operators, telephone 
companies, satellite providers, terrestrial wireless providers, and 
broadband-over-powerline (BPL) providers. Has the market for broadband 
Internet services developed as expected, and, if not, what is the 
significance for this proceeding of the market's actual development?
    62. Are there other relevant facts or circumstances that bear on 
the Commission's application of the statutory definition of 
``telecommunications service'' to wired broadband Internet service?

Defining the Telecommunications Service

    63. If the Commission were to classify a service provided as part 
of the broadband Internet service bundle as a telecommunications 
service, it would be necessary to define what is being so classified. 
Here we ask commenters to propose approaches to defining the 
telecommunications service offered as part of wired broadband Internet 
service, assuming that the Commission finds a separate 
telecommunications service is being offered today, or must be offered.
    64. We have previously defined ``Internet connectivity'' to include 
the functions that ``enable [broadband Internet service subscribers] to 
transmit data communications to and from the rest of the Internet.'' 
Identifying a telecommunications service at a similarly high level--for 
instance, as the service that provides Internet connectivity--may be 
appropriate for this proceeding if a telecommunications service is 
classified. Is this approach or some other mechanism appropriate to 
give the Internet service provider latitude to define its own 
telecommunications service? For instance, would it be desirable for the 
Commission to identify only bare minimum characteristics of an Internet 
connectivity service? Or is it necessary for the Commission to define 
the functionality, elements, or endpoints of Internet connectivity 
service? What are the pros and cons of these and other approaches? 
Would use of the term ``Internet connectivity service'' in this context 
be unduly confusing because the Commission has previously defined that 
term to include the function of ``operating or interconnecting with 
Internet backbone facilities'' in order to ``enable cable modem service 
subscribers to transmit data communications to and from the rest of the 
Internet''?
    65. Commenters should also identify the particular aspects of 
broadband Internet service that do and do not constitute 
``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.'' Does the catalog of 
Internet connectivity functions provided in the Cable Modem Declaratory 
Ruling include all the functions an end user would need from its 
broadband Internet service provider in order to use the Internet? Are 
there other connectivity functions the Commission should consider? Can 
the Commission draw guidance from other attempts to define the 
functionality of an Internet connectivity service, such as the 
definition in NECA's DSL Access Service Tariff? In its tariff, NECA 
offers a DSL data telecommunications service to end user and Internet 
service provider customers. The service ``enables data traffic 
generated by a customer-provided modem to be transported to a DSL 
Access Service Connection Point using the Telephone Company's local 
exchange service facilities.'' The Access Service Connection Point is a 
point designated by the telephone company that ``aggregates ADSL Access 
Service and/or wireline broadband Internet transmission service data 
traffic from and to suitably equipped Telephone Company Serving Wire 
Centers.''

Consequences of Classifying Internet Connectivity as a 
Telecommunications Service

    66. If we were to classify Internet connectivity service as a 
telecommunications service and take no further action, that service 
would be subject to all requirements of Title II that apply to 
telecommunications service or common carrier service. If the Commission 
chose, it could provide support for Internet connectivity services 
through the Universal Service Fund under section 254. Under section 
222, the Commission could ensure that consumers of Internet 
connectivity enjoy protections for their private information. Consumers 
with disabilities would see greater accessibility of broadband services 
and equipment under section 255. And the Commission could protect 
consumers and fair competition through application of sections 201, 
202, and 208. Would application of all Title II requirements to the 
wired broadband Internet connectivity service be consistent with the 
approach to broadband Internet service described in part II.A.2, above? 
We seek comment on whether these benefits to classifying Internet 
connectivity as a telecommunications service would outweigh the costs 
of doing so, including the application of numerous regulatory 
provisions that the Commission, in its information service 
classification orders, determined should not apply. Are there any 
elements of our framework that the Commission could not pursue if it 
adopted a Title II classification? Under Title II classification what 
role, if any, might be played by third party standard setting bodies?

Telecommunications Service Classification and Forbearance

    67. In addition to the traditional information service and 
telecommunications service approaches discussed above, we identify and 
seek comment on a third option for establishing a suitable legal 
foundation for broadband Internet and Internet connectivity services. 
This third way

[[Page 36082]]

would involve classifying wired broadband Internet connectivity as a 
telecommunications service (as suggested above), but simultaneously 
forbearing from applying most requirements of Title II to that 
connectivity service, save for a small number of provisions.
    68. Specifically, if the Commission decided, after appropriate 
analysis, to classify wired broadband Internet connectivity (and no 
other component of wired broadband Internet service) as a 
telecommunications service, it could simultaneously forbear from 
applying all but a handful of core statutory provisions--sections 201, 
202, 208, and 254--to the service. Two other provisions that have 
attracted longstanding and broad support in the broadband context--
sections 222 and 255--might also be implemented for the connectivity 
service, perhaps after the Commission provides guidance in subsequent 
proceedings as to how they will apply in this context. We seek comment 
on this third approach, and whether it would constitute a framework for 
broadband Internet service that is fundamentally consistent with what 
the Commission, Congress, consumer groups, and industry believed the 
Commission could pursue under Title I before the Comcast decision.

Forbearing To Maintain the Deregulatory Status Quo

    69. In recognition of the need to tailor the Commission's policies 
to evolving markets and technologies, Congress gave the Commission in 
1996 the authority and responsibility to forbear from applying 
provisions of the Communications Act when certain criteria are met, and 
specifically directed the Commission to use this new power to 
``encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans.'' In typical 
forbearance proceedings, a petitioner--usually a telecommunications 
service provider--files a petition seeking relief from a provision of 
the Act that applies to it. The Commission ``shall'' grant the 
requested relief if:
    (a) 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;
    (b) enforcement of such regulation or provision is not necessary 
for the protection of consumers; and
    (c) forbearance from applying such provision or regulation is 
consistent with the public interest.
    In ordinary forbearance proceedings, therefore, the Commission must 
make a predictive judgment whether, without enforcement of the 
provisions or regulations in question, charges and practices will be 
just and reasonable, consumers will be protected, and the public 
interest will be served.
    70. The forbearance analysis here has a different posture. The 
Commission would not be responding to a carrier's request to change the 
legal and regulatory framework that currently applies. Rather, it would 
be assessing whether to forbear from provisions of the Act that, 
because of our information service classification, do not apply at the 
time of the analysis. Under section 10, the Commission may forbear on 
its own motion. If the statutory criteria are met, the Commission is 
compelled to forbear just as if it were responding to a carrier's 
petition. In this situation, could the Commission simply observe the 
current marketplace for broadband Internet services to determine 
whether enforcing the currently inapplicable requirements is or is not 
necessary to ensure that charges and practices are just and reasonable 
and not unjustly or unreasonably discriminatory, whether application of 
the requirements is or is not necessary for the protection of 
consumers, and whether applying the requirements is or is not in the 
public interest? Section 10 allows the Commission to consider 
forbearance from requirements that do not currently apply or may not 
apply even in the absence of forbearance.

Identifying the Relevant Telecommunications Service and 
Telecommunications Carriers

    71. In this part of the Notice we assume, solely for purposes of 
framing the forbearance option, that the Commission has decided to 
classify the Internet connectivity service underlying broadband 
Internet service as a telecommunications service. Section 10 provides 
that ``the Commission shall forbear from applying any regulation or any 
provision of this chapter to a telecommunications carrier or 
telecommunications service, or class of telecommunications carriers or 
telecommunications services'' if certain criteria are met. The relevant 
``telecommunications service'' would be Internet connectivity service 
as the Commission defines it. The ``class of telecommunications 
carriers'' at issue would comprise the providers of the Internet 
connectivity service identified as a telecommunications service.
    72. In this proceeding, however, we do not intend to disrupt the 
status quo for incumbent local exchange carriers or other common 
carriers that choose to offer their Internet transmission services as 
telecommunications services. Nor do we propose to alter the status quo 
with regard to the application of section 254(k) and related cost-
allocation rules to these carriers. We therefore seek comment on 
excepting from forbearance any carrier that elects to be subject to the 
full range of Title II requirements, and on the mechanism that would be 
most suitable for a carrier to make such an election.

Defining the Geographic Scope for Analysis

    73. Section 10 requires the Commission to forbear from unnecessary 
requirements ``in any or some of [carriers'] geographic markets.'' By 
its terms section 10 requires no ``particular * * * level of geographic 
rigor,'' and the Commission has flexibility to adopt an approach suited 
to the circumstances. The Commission decisions classifying broadband 
Internet service did not rely on any particular, defined geographic 
area. Instead, where those decisions evaluated the state of the 
marketplace, they did so ``in view of larger trends.'' The 2005 
Wireline Broadband Report and Order granted forbearance on a nationwide 
basis. The Commission has adopted a similar approach to evaluating the 
broadband marketplace in other forbearance decisions. Given that 
backdrop, and the fact that the forbearance discussed here would be 
designed to maintain a deregulatory status quo for wired broadband 
Internet service that applies across the nation, the same approach may 
be warranted here, with the effect that forbearance would be granted or 
denied on a nationwide basis. We seek comment on this approach. If 
commenters suggest a more granular geographic market as is sometimes 
used in other forbearance proceedings, we ask them to address whether 
such an approach would be legally required.

Identifying the Provisions of Title II From Which the Commission Would 
Forbear

    74. The forbearance option contemplates a determination not to 
apply all but the small number of provisions of Title II that provide a 
solid legal foundation for the Commission to implement its established 
broadband policies. In this part, we seek comment on declining to 
forbear from the three core provisions of Title II--sections 201, 202, 
and 208. We also seek comment on whether we should decline to forbear

[[Page 36083]]

from section 254 in order to ensure that the Commission has clear 
authority to pursue universal service goals for broadband services. And 
we seek comment on whether we should decline to forbear from two other 
provisions--sections 222 and 255--that speak to two other broadband 
issues the Commission has believed it can address (customer privacy and 
access by persons with disabilities). We further seek comment on 
whether forbearing from any of the remaining provisions of Title II is 
beyond our forbearance authority or otherwise should be rejected.
    75. Exclusions from Forbearance: Sections 201, 202, and 208. The 
Commission has never exercised its authority under section 10 to 
forbear from these three fundamental provisions of the Act, although it 
has been asked to do so on many occasions. In addition to being 
consistent with our precedent, a determination not to forbear from 
these core provisions would comport with Congress's approach to 
commercial mobile radio services (CMRS), such as cell phone services. 
In 1993, CMRS services were still nascent, and Congress specified in a 
new section 332(c)(1)(A) of the Communications Act that although Title 
II applies to CMRS, the Commission may forbear from enforcing any 
provision of the title other than sections 201, 202, and 208. After 
Congress gave the Commission broader forbearance authority in the 
Telecommunications Act of 1996, the Commission considered a petition to 
forbear from sections 201 and 202 as applied to certain CMRS services. 
The Commission rejected that forbearance request, finding that even in 
a competitive market those provisions are critical to protecting 
consumers.
    76. Applying sections 201 and 202 could provide the Commission 
direct statutory authority to protect consumers and promote fair 
competition, yet allow the Commission to avoid burdensome regulation. 
For example, while CMRS providers are subject to sections 201 and 202, 
they do not file tariffs because the Commission forbore from section 
203. We seek comment on these issues as well as how to address in any 
forbearance analysis the existing agency rules that have been 
promulgated under sections 201 and 202.
    77. In addition, we seek comment on not forbearing from section 208 
and the associated procedural rules. Would the enforcement regime that 
would apply if we enforce only section 208 be sufficient if we decide 
to forbear from the damages and jurisdictional provisions of sections 
206 (carrier liability for damages), 207 (recovery of damages and forum 
election), and 209 (damages awards)? Would forbearance from these 
additional provisions render enforcement under section 208 procedurally 
or substantively deficient, or would section 208 (together with Title V 
of the Act) provide the Commission adequate authority to identify and 
address unlawful practices involving broadband Internet service?
    78. Exclusion from Forbearance: Section 254. Section 254, the 
statutory foundation of our universal service programs, requires the 
Commission to promote universal service goals, including ``[a]ccess to 
advanced telecommunications and information services * * * in all 
regions of the Nation.'' In March 2010, a unanimous Commission endorsed 
reform of universal service programs to ``encourage targeted investment 
in broadband infrastructure and emphasize the importance of broadband 
to the future of these programs.'' Reforming universal service to 
encompass broadband is also a keystone of the National Broadband Plan. 
Our current universal service support programs, including our high-cost 
program and our low-income programs, address deployment and income-
related adoption barriers for voice. The Plan recommends that the 
Commission provide high-cost and low-income support that ensures that 
all households have the ability to subscribe to a high-quality 
broadband connection that provides both broadband and voice services.
    79. Two subsections of section 254 bear particularly on whether to 
forbear from this universal service provision. First, section 254(c) 
defines universal service as ``an evolving level of telecommunications 
service.'' By not forbearing from section 254(c), the Commission would 
retain clear authority to support the availability and adoption of 
broadband Internet connectivity service through reformed high-cost and 
low-income programs in the Universal Service Fund.
    80. Second, section 254(d) requires all providers of 
telecommunications service to contribute to the Universal Service Fund 
on an equitable and nondiscriminatory basis. Should the Commission 
apply the mandatory contribution requirement to broadband Internet 
connectivity providers? If so, should we delay implementation of the 
contribution obligation, through temporary forbearance or other means, 
until the Commission adopts rules governing specifically how broadband 
Internet connectivity providers should calculate their contribution 
consistent with the requirement that all telecommunications carriers 
``contribute[] on an equitable and nondiscriminatory basis,'' possibly 
as part of comprehensive Universal Service Fund reform?
    81. If commenters suggest that we should forbear from applying the 
support provisions of section 254 in the context of broadband Internet 
connectivity service, we ask them to provide alternative proposals to 
ensure universal availability of broadband Internet connectivity 
services, and to assess the legal sustainability of proposed 
alternatives. If commenters suggest that we forbear from (or delay) 
applying the mandatory contribution provisions of section 254, what 
would be the consequences for the Universal Service Fund? The 
Commission has statutory authority to assess any provider of interstate 
telecommunications if that would serve the public interest. Nothing in 
this Notice should be understood to limit the Commission's ability to 
exercise this authority during the pendency of this proceeding.
    82. Possible Exclusion from Forbearance: Section 222. Section 222 
of the Communications Act requires providers of telecommunications 
services to protect their customers' confidential information, as well 
as proprietary information of other telecommunications service 
providers and equipment manufacturers. As discussed above, the 
Commission has supported applying this provision in the broadband 
context. Section 222 would appear to provide the Commission clear 
authority to implement appropriate privacy requirements for broadband 
Internet connectivity. We question, however, whether it would be in the 
public interest to apply section 222 to broadband Internet connectivity 
service immediately. It might be more effective for the Commission to 
interpret the specific provisions of section 222, including the 
definition of ``customer proprietary network information,'' in the 
broadband context before requiring broadband Internet connectivity 
providers to comply. Proceeding otherwise could cause confusion and 
disparity among broadband Internet connectivity providers, and 
confusion for consumers. Compliance with section 222 could also be more 
expensive if the provision took effect immediately, and we later 
adopted specific rules. On the other hand, most providers are already 
subject to privacy requirements, at least for other services they 
provide; their costs of immediate compliance with section 222 may not 
outweigh the benefit to consumers of quick assurance of their privacy 
while using broadband Internet connectivity services. In

[[Page 36084]]

addition, section 631 of the Communications Act requires cable 
operators to fulfill certain obligations with respect to consumer 
privacy for cable or ``other service[s]'' to which a consumer 
subscribes. The term ``other service'' includes ``any wire or radio 
communications service provided using any of the facilities of the 
cable operator that are used in the provision of cable service.'' How 
should the obligations of sections 222 and 631 be reconciled for cable 
operators offering broadband Internet service? More broadly, we seek 
comment on the application of section 222 to any wired broadband 
Internet connectivity service that may be classified as a 
telecommunications service, and on whether the public interest would be 
served by permitting section 222 to apply in the absence of new 
implementing rules. The Commission has previously forborne temporarily 
from applying a statutory provision or regulation. In 1994, soon after 
Congress authorized the Commission to deregulate wireless services, the 
Commission forbore temporarily from requiring or permitting CMRS 
providers to file tariffs for interstate access service. And in 2005, 
the Commission temporarily forbore from carrier eligibility 
requirements for universal service support, to provide victims of 
Hurricane Katrina access to wireless phone service.
    83. One aspect of retaining the information service classification 
for broadband Internet service (other than for the Internet 
connectivity telecommunications service that may be offered separately 
with broadband Internet service) is that it minimizes interference with 
the FTC's ability to enforce the Federal Trade Commission Act's 
prohibition of unfair, deceptive, or anticompetitive practices by 
broadband Internet service providers. Section 5(a)(1) of the FTC Act 
declares to be unlawful all ``[u]nfair methods of competition in or 
affecting commerce, and unfair or deceptive acts or practices in or 
affecting commerce,'' but section 5(a)(2) of the FTC Act restricts the 
FTC's ability to enforce this prohibition with respect to common 
carrier activities. We seek comment on how the Commission might use its 
authority under section 222 to ensure privacy for users of Internet 
connectivity without significantly compromising the FTC's ability to 
address privacy issues involving broadband Internet services and 
applications.
    84. Possible Exclusion from Forbearance: Section 255. Section 255 
requires telecommunications service providers to make their services 
accessible to individuals with disabilities, unless not reasonably 
achievable. As discussed above, the Commission has repeatedly expressed 
its intent to apply this requirement in the broadband context.
    85. We seek comment on the appropriateness of implementing section 
255 to ensure that Americans with disabilities have access to broadband 
Internet connectivity services. As with section 222, might it be 
appropriate to apply section 255 only after a separate notice-and-
comment proceeding that allows detailed consideration of disabilities-
access issues in the broadband context? We seek comment on 
implementation questions and other issues related to the application of 
section 255.
    86. Scope of Forbearance Generally. We believe that the six 
sections we have just discussed--sections 201, 202, 208, 222, 254, and 
255--could compose a sufficient set of tools for effecting the 
established policy approach and implementing the Commission's goals for 
21st Century communications. Are there others that should be added to 
this list? Some provisions of Title II relate directly or indirectly to 
the effective application and enforcement of the six provisions we have 
identified. Section 214, for example, deals primarily with ``Extension 
of Lines'' yet contains section 214(e), which provides the framework 
for determining which carriers are eligible to participate in universal 
service support programs. Similarly, section 251(a)(2) directs 
telecommunications carriers ``not to install network features, 
functions, or capabilities that do not comply with the guidelines and 
standards established pursuant to section 255,'' and section 225 
establishes the telecommunications relay services program. Is 
application of these or any other provisions of Title II required to 
allow effective implementation and enforcement of the six provisions 
identified above? If so, should the Commission exempt such provisions 
from forbearance for administrative reasons, if this third approach to 
classification is adopted?
    87. Are there provisions of Title II from which we lack authority 
to forbear? Section 10(a) directs the Commission to forbear from 
applying regulations or provisions of the Communications Act to 
telecommunications carriers or services in those instances where the 
Commission determines that the particular provision is unnecessary to 
ensure that carrier ``charges, practices, classifications, or 
regulations * * * are just and reasonable and are not unjustly or 
unreasonably discriminatory;'' enforcement of such regulation is ``not 
necessary for the protection of consumers;'' and forbearance is 
consistent with the public interest. We ask whether section 10 provides 
authority to forbear from provisions of the statute that do not 
directly impose obligations on carriers. For example, section 224 
provides the framework for the Commission's regulation of pole 
attachments, including the rates therefor. Does section 10 provide the 
Commission authority to forbear from section 224 insofar as it imposes 
rate-related obligations on the Commission and utilities that own 
poles, rather than on telecommunications carriers or telecommunications 
services?
    88. Similarly, section 253 permits the Commission to preempt state 
regulations that prohibit the provision of telecommunications services. 
Does section 10 provide the Commission authority to forbear from 
section 253, which does not impose obligations on telecommunications 
carriers? If the Commission were to forbear from section 253, how would 
the Commission's general authority to preempt inconsistent state 
requirements be affected?
    89. Congress created the Commission in part ``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.'' Would 
it be consistent with the Commission's mission with respect to 
promoting safety of life and property, and consumer protection 
generally, to forbear from the portions of section 214(a) that address 
discontinuance, reduction, or impairment of service? Would it be 
consistent with our mission to forbear from section 214(d), which 
allows the Commission to require a carrier ``to provide itself with 
adequate facilities for the expeditious and efficient performance of 
its service''; or section 218, which permits the Commission to 
``inquire into the management of the business of all carriers subject 
to this Act''? Does section 10 provide authority to forbear from these 
provisions? Should the Commission exclude them from forbearance so it 
may proceed with, for example, cybersecurity or data gathering 
initiatives, or would authority under sections 201 and 202 (or other 
provisions) be sufficient? How would forbearance from these provisions 
affect the Commission's ability to promote adequate service to 
underserved communities?
    90. Also with regard to our national defense and homeland security 
mission, we note that section 229 directs the Commission to implement 
the provisions of the Communications

[[Page 36085]]

Assistance for Law Enforcement Act (CALEA). CALEA is a separate statute 
that requires ``telecommunications carriers'' to meet certain 
assistance capability requirements in support of electronic 
surveillance. The Commission has previously found that CALEA's 
definition of ``telecommunications carrier'' is broader than the 
definition of ``telecommunications carrier'' in the Communications Act. 
All service providers that are ``telecommunications carriers'' under 
the Communications Act are also ``telecommunications carriers'' subject 
to CALEA, and some providers--including facilities-based broadband 
Internet access providers--are subject to CALEA even if they are not 
``telecommunications carriers'' as defined in the Communications Act. 
Specifically, the Commission held in 2005 that ``facilities-based 
providers of any type of broadband Internet access service, including 
but not limited to wireline, cable modem, satellite, wireless, fixed 
wireless, and broadband access via powerline are subject to CALEA.'' 
Thus, it appears that regardless of whether we maintain the current 
statutory classification for broadband Internet service or classify 
Internet connectivity (or some other service) as a telecommunications 
service, CALEA will continue to apply to these providers. We seek 
comment on this analysis. In addition, as we do with regard to the 
sections described just above, we seek comment on whether section 10 
would provide authority to forbear from section 229, and on whether 
forbearance from application of section 229 would be consistent with 
the purposes for which CALEA was enacted and the public interest. 
Finally, we emphasize that section 10 does not provide the Commission 
authority to forbear from provisions of CALEA or any other statute 
other than the Communications Act.
    91. Section 257(c) requires the Commission to make periodic reports 
to Congress concerning the elimination of previously identified 
barriers to market entry by entrepreneurs and other small businesses. 
This obligation applies to ``the provision and ownership of 
telecommunications and information services'' and thus applies 
regardless of the legal classification of broadband Internet service 
and broadband Internet connectivity service. It thus would appear that 
none of the three alternative approaches suggested here would affect 
the Commission's duty to make the mandated reports. Nor, given the 
importance of lowering barriers to market entry, do we contemplate any 
circumstance in which it would be sound policy to cease making the 
reports. We seek comment on these issues and on how best to ensure that 
the obligation of section 257(c) is preserved in this context.
    92. We further seek comment on whether there are provisions of 
Title II that would require interpretation even after forbearance. For 
example, would forbearance from section 203 mean that carriers may not 
file tariffs even if they want to, or just that they are not required 
to do so? Would the Commission's review of transactions involving 
providers of broadband Internet connectivity service be affected if the 
Commission forbore from applying section 214?
    93. We also seek comment on whether there are approaches superior 
or complementary to forbearance that the Commission should consider as 
means of easing regulatory burdens. For example, in the past the 
Commission has ``streamlined'' the statutory procedures that apply to 
non-dominant carriers, and has granted blanket authority to all 
carriers under section 214 to provide domestic interstate services and 
to construct, acquire, or operate any domestic transmission line. Is 
any similar approach appropriate here?
    94. Finally, we seek comment on the role of third party standard 
setting bodies if the Commission were to adopt one of the deregulatory 
approaches described here.

Application of the Statutory Forbearance Criteria

    95. Charges, Practices, Classifications, and Regulations. In 2002, 
when the Commission decided to classify cable modem service as an 
information service, only 12 percent of American adults had broadband 
at home. Now nearly two-thirds of American adults use broadband at 
home. In just the last two years, home broadband use has grown more 
than 25 percent. The quality and availability of broadband services 
continue to improve, with cable and telephone companies investing about 
$20 billion in wireline broadband capital expenditures in 2008 and 
about $18 billion in 2009. As described in the National Broadband Plan, 
``[t]op advertised speeds available from broadband providers have 
increased in the past few years. Additionally, typical advertised 
download speeds to which consumers subscribe have grown approximately 
20% annually for the last 10 years.''
    96. Still, a number of reported incidents suggest there is a role 
for the Commission. Comcast's secret disruption of its customers' peer-
to-peer communications, which the Commission determined to be 
unjustified, is one example. There have been recent reports involving: 
AT&T's alleged failure to deliver DSL service at the speeds promised; 
allegations that although RCN promised subscribers ``fast and 
uncapped'' broadband, it delayed or blocked peer-to-peer file transfers 
without users' knowledge or consent; and Windstream's redirection of 
subscribers who used the default search function in the Firefox web 
browser to a Windstream ``landing page.'' Furthermore, legislative 
developments described above suggest that Congress is not satisfied 
with the pace of broadband deployment, adoption, and utilization.
    97. We seek comment on whether, in light of the current charges, 
practices, classifications, and regulations of broadband Internet 
connectivity service providers, it would be consistent with section 
10(a)(1) for the Commission to forbear from all provisions of Title II 
except the six identified provisions. If we found on the record 
developed in response to this Notice that the marketplace for broadband 
Internet connectivity services is operating sufficiently well with 
regard to competition and consumers' interests, then retaining only the 
authority in sections 201, 202, and 208; reforming universal service 
under section 254; and continuing to enforce the privacy and access 
provisions of sections 222 and 255 could be sufficient to address 
current and foreseeable future concerns.
    98. Protection of Consumers and the Public Interest. Section 10(b) 
directs the Commission, in making its public interest analysis, to 
``consider whether forbearance from enforcing the provision or 
regulation will promote competitive market conditions.'' As discussed 
above, the goals of any action to classify broadband Internet 
connectivity as a telecommunications service would include preserving 
the Commission's ability to step in when necessary to protect consumers 
and fair competition, while generally refraining from regulation where 
possible. Further, the Commission has tools to promote competition for 
broadband Internet services that would be unaffected by the forbearance 
proposal discussed here. We seek comment on this element of the 
forbearance test.

Maintaining Forbearance Decisions

    99. We seek comment on whether, if we forbore from applying those 
provisions of Title II that go beyond minimally intrusive Commission 
oversight, that decision would likely

[[Page 36086]]

endure. Section 10 allows the Commission to revisit a decision to 
forbear. Normally, to depart from a prior decision, an agency may 
simply acknowledge that it is doing so and provide a rational 
explanation for the change, which may or may not need to be more 
detailed than the explanation for the original decision. The agency 
``need not demonstrate to a court's satisfaction that the reasons for 
the new policy are better than the reasons for the old one.'' Section 
10, though, requires the Commission to forbear if the statutory 
criteria are met. Thus, to reverse a forbearance decision, the 
Commission must find that at least one of the criteria is no longer met 
with regard to a particular statutory provision. That determination 
would be subject to judicial review, and the Supreme Court has stated 
that an agency must ``provide a more detailed justification than what 
would suffice for a new policy created on a blank slate'' in instances 
where, for example, ``its new policy rests upon factual findings that 
contradict those which underlay its prior policy; or when its prior 
policy has engendered serious reliance interests that must be taken 
into account.'' Reversal of forbearance also might be in arguable 
tension with section 706(a) of the 1996 Act, which directs the 
Commission to ``encourage the deployment on a reasonable and timely 
basis of advanced telecommunications capability to all Americans * * * 
by utilizing, in a manner consistent with the public interest, 
convenience, and necessity, * * * regulatory forbearance.'' We seek 
comment on the Commission's authority to reverse a forbearance decision 
concerning broadband Internet connectivity service. We also seek 
comment on what provisions, if any, could appropriately be included in 
a forbearance order to establish a heightened standard for justifying 
future ``unforbearance.''
    100. If the Commission were to elect the option of classifying 
Internet connectivity as a telecommunications service but forbearing 
from most of Title II, then a reviewing court could in theory uphold 
the classification determination but vacate the accompanying 
forbearance in whole or in part. In that situation, the Commission 
could maintain the classification of broadband Internet connectivity 
service as telecommunications service and allow the relevant provisions 
of Title II, which the court restored, to apply. We seek comment on any 
lawful mechanisms that (assuming adoption of the third classification 
option) could be utilized to address this theoretical situation, even 
if that means the Commission would not, in the post-litigation 
situation just described, ultimately maintain the classification of 
Internet connectivity as a telecommunications service.

Effective Dates

    101. If the Commission decided to alter its current approach to 
Internet connectivity service, affected providers might need time to 
adjust to any new requirements. To reflect this, the Commission could 
delay the effective date of a classification (or classification and 
forbearance) decision for 180 days after release, or another suitable 
period. Moreover, as discussed above, certain provisions of Title II, 
such as sections 222, 254(d), and 255, could be phased-in on an even 
longer timetable. We seek comment on the effective date the Commission 
should adopt for a classification decision under one of the approaches 
proposed here, or an alternative approach identified by the commenter.

Terrestrial Wireless and Satellite Services

    102. The Commission currently classifies broadband Internet service 
solely as an information service regardless of whether it is provided 
over cable facilities, wireline facilities, wireless facilities, or 
power lines. At the same time, the Commission has in the past taken a 
deliberate approach to extending its classification framework. In 
particular, though the Commission had classified all cable modem and 
wireline Internet access services as information services by 2005, it 
was not until 2007 that it extended that classification to wireless 
broadband Internet services, even though the first 3G networks went 
into service in 2003.
    103. We seek comment on which of the three legal frameworks 
specifically discussed in this Notice, or what alternate framework, 
would best support the Commission's policy goals for wireless 
broadband. In addition, as the Commission recently noted in the Open 
Internet NPRM, ``there are technological, structural, consumer usage, 
and historical differences between mobile wireless and wireline/cable 
networks.'' We seek comment on whether these differences are relevant 
to the Commission's statutory approach to terrestrial wireless and 
satellite-based broadband Internet services. Do consumers today view 
wireless broadband as a substitute for wired services? How are 
terrestrial wireless and satellite Internet services purchased, 
provided, and perceived?
    104. Several provisions of Title III of the Communications Act 
provide the Commission authority to impose on spectrum licensees 
obligations that are in the public interest. For example, section 301 
provides the Commission authority to regulate ``radio communications'' 
and ``transmission of energy by radio.'' Under section 303, the 
Commission has the authority to establish operational obligations for 
licensees that further the goals and requirements of the Act if the 
obligations are in the ``public convenience, interest, or necessity'' 
and not inconsistent with other provisions of law. Section 303 also 
authorizes the Commission, subject to what the ``public interest, 
convenience, or necessity requires,'' to ``[p]rescribe the nature of 
the service to be rendered by each class of licensed stations and each 
station within any class.'' Section 307(a) likewise authorizes the 
issuance of licenses ``if public convenience, interest, or necessity 
will be served thereby.'' Section 316 provides a similar test for new 
conditions on existing licenses, authorizing such modifications if ``in 
the judgment of the Commission such action will promote the public 
interest, convenience, and necessity.'' On the other hand, Title III 
provides the Commission no express authority to extend universal 
service to wireless broadband Internet services. We seek comment on 
whether these or other technical, market, or legal considerations 
justify different classification of wireless and wired broadband 
Internet services. We also seek comment on whether our approach to 
classification of non-facilities-based Internet service providers 
should be different in the wireless context, or the same as in the 
wired context.
    105. In addition, section 332 sets forth various provisions 
concerning the regulatory treatment of mobile wireless service. 
Sections 332(c)(1) and (c)(3), in particular, require that CMRS 
providers be regulated as common carriers under Title II of the Act. To 
what extent should section 332 of the Act affect our classification of 
wireless broadband Internet services? Section 332(c)(1) gives the 
Commission the authority to specify certain provisions of Title II as 
inapplicable to CMRS providers. If the Commission were to take the 
third way described above in the wireless broadband context, could it 
and should it apply section 332(c)(1) as well as section 10 in its 
forbearance analysis? We also seek comment on whether the Commission 
would have reason to apply sections 201 and 202 differently

[[Page 36087]]

to wireless and wired broadband Internet services.
    106. We also ask commenters to address whether, if the Commission 
were to alter its present approach to broadband Internet service, it 
would be preferable for the Commission to address wireless services at 
the same time that it addresses wired services, or whether there are 
reasons for the Commission to defer a decision on classification of 
non-wired broadband Internet services (and any associated forbearance 
if a wireless broadband telecommunications service is identified).

Non-Facilities-Based Internet Service Providers

    107. In 1998, the Commission addressed non-facilities-based 
Internet service providers and concluded that they provided only 
information services. In Brand X, Justice Scalia stated in his dissent 
that non-facilities-based Internet service providers using telephone 
lines to provide DSL service stand in a different position in the eyes 
of the consumer than the provider of the physical connection. Some 
industry members have suggested, however, that providers of Internet 
connectivity could avoid compliance with consumer protection measures 
by relying on non-facilities-based affiliates to offer retail broadband 
Internet service. We seek comment on what policy goals we should have 
for non-facilities-based Internet service providers, and what legal 
foundation for non-facilities-based Internet service providers can best 
support effective implementation of those goals.

Internet Backbone Services, Content Delivery Networks, and Other 
Services

    108. The focus of this proceeding is limited to the classification 
of broadband Internet service. We remain cognizant that, under the Act, 
all information services are provided ``via telecommunications,'' and 
therefore the use of telecommunications does not, on its own, warrant 
the identification of a separate telecommunications service component. 
For example, we do not intend to address in this proceeding the 
classification of information services such as e-mail hosting, web-
based content and applications, voicemail, interactive menu services, 
video conferencing, cloud computing, or any other offering aside from 
broadband Internet service. Services that utilize telecommunications to 
afford access to particular stored content, such as content delivery 
networks, also are outside the scope of this proceeding. Nor do we 
intend here to address or disturb our treatment of services that are 
not sold by facilities-based Internet service providers to end users in 
the retail market, including, for example, Internet backbone 
connectivity arrangements. In short, the Commission proposes not to 
change its treatment of services that fall outside a commonsense 
definition of broadband Internet service. We seek comment on whether 
any of the three legal approaches described in this Notice would affect 
these services directly or indirectly, and how we should factor that 
into our decision-making about the treatment of broadband Internet 
service.
    109. In a separate proceeding, the Commission has asked for public 
comment on the treatment of other services (including Internet-
Protocol-based voice and subscription video services) that may be 
provided over the same facilities used to provide broadband Internet 
service to consumers, but that have not been classified by the 
Commission. The Commission has described these as ``managed'' or 
``specialized'' services, and recognized ``that these managed or 
specialized services may differ from broadband Internet services in 
ways that recommend a different policy approach, and it may be 
inappropriate to apply the rules proposed here to managed or 
specialized services.'' We do not intend to address the classification 
or treatment of these services in this proceeding. We seek comment on 
whether any of the three legal approaches identified in this Notice 
would affect these services directly or indirectly, and how we should 
factor that into our decision-making about the treatment of Internet 
connectivity service.

State and Local Regulation of Broadband Internet and Internet 
Connectivity Services

    110. We also ask commenters to address the implications for state 
and local regulation that would arise from the three proposals 
described above. Under each of the three approaches, what would be the 
limits on the states' or localities' authority to impose requirements 
on broadband Internet service and broadband Internet connectivity 
service?
    111. We anticipate that if a state were to impose requirements on 
broadband Internet connectivity service or broadband Internet service 
that are contrary to a Commission decision not to apply similar 
requirements, we would have authority under the Communications Act and 
the Supremacy Clause of the United States Constitution (Article III, 
section 2) to preempt those state requirements. In addition, section 
10(e) provides that ``[a] State commission may not continue to apply or 
enforce any provision of this Act that the Commission has determined to 
forbear from applying.'' We seek comment on the application of these 
provisions in the context of broadband Internet service and broadband 
Internet connectivity service, the states' role in the broadband 
marketplace, and how our decision to apply or not apply section 253 
could relate to this authority.

Related Actions

    112. We seek comment on whether there are actions we can and should 
take outside the proceeding this Notice initiates to implement the 
established policy approach to broadband Internet service. As one 
example, the Commission could decline to pursue the ``open access'' 
policies for cable modem service on which the Commission sought comment 
in 2002 when it decided to classify cable modem service as a single 
information service. We seek comment on terminating the docket 
initiated by the notice of proposed rulemaking that accompanied the 
Cable Modem Declaratory Ruling, and we invite additional proposals.

Procedural Matters

Paperwork Reduction Act

    113. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 47 U.S.C. 
3506(c)(4).

Ex Parte Presentations

    114. The inquiry this Notice initiates shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making oral ex parte presentations are reminded 
that memoranda summarizing the presentations must contain summaries of 
the substance of the presentations and not merely a listing of the 
subjects discussed. More than a one or two sentence description of the 
views and arguments presented generally is required. Other requirements 
pertaining to oral and written presentations are set forth in Sec.  
1.1206(b) of the Commission's rules.

[[Page 36088]]

Ordering Clause

    115. Accordingly,  it is ordered that, pursuant to the authority 
contained in sections 4(i), 4(j), 10, 218, 303(b), 303(r), and 403 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
160, 218, 303(b), 303(r), and 403, this Notice of Inquiry is adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2010-15349 Filed 6-23-10; 8:45 am]
BILLING CODE 6712-01-P