http://www.fcc.gov/document/fcc-releases-open-internet-order EXECUTIVE SUMMARY
The benefits of rules and policies protecting an open Internet date back over a decade
and must continue. Just over a year ago, the D.C. Circuit in Verizon v. FCC struck down the
Commission’s 2010 conduct rules against blocking and unreasonable discrimination. But the Verizon
court upheld the Commission’s finding that Internet openness drives a “virtuous cycle” in which
innovations at the edges of the network enhance consumer demand, leading to expanded investments in
broadband infrastructure that, in turn, spark new innovations at the edge. The Verizon court further
affirmed the Commission’s conclusion that “broadband providers represent a threat to Internet openness
and could act in ways that would ultimately inhibit the speed and extent of future broadband
deployment.”
Threats to Internet openness remain today. The record reflects that broadband providers
hold all the tools necessary to deceive consumers, degrade content, or disfavor the content that they don’t
like. The 2010 rules helped to deter such conduct while they were in effect. But, as Verizon frankly told
the court at oral argument, but for the 2010 rules, it would be exploring agreements to charge certain
content providers for priority service. Indeed, the wireless industry had a well-established record of
trying to keep applications within a carrier-controlled “walled garden” in the early days of mobile
applications. That specific practice ended when Internet Protocol (IP) created the opportunity to leap the
wall. But the Commission has continued to hear concerns about other broadband provider practices
involving blocking or degrading third-party applications.
Emerging Internet trends since 2010 give us more, not less, cause for concern about such
threats. First, mobile broadband networks have massively expanded since 2010. They are faster, more
broadly deployed, more widely used, and more technologically advanced. At the end of 2010, there were
about 70,000 devices in the U.S. that had LTE wireless connections. Today, there are more than 127
million. We welcome this tremendous investment and innovation in the mobile marketplace. With
carefully-tailored rules in place, that investment can continue to flourish and consumers can continue to
enjoy unfettered access to the Internet over their mobile broadband connections. Indeed, mobile
broadband is becoming an increasingly important pathway to the Internet independent of any fixed
broadband connections consumers may have, given that mobile broadband is not a full substitute for fixed
broadband connections. And consumers must be protected, for example from mobile commercial
practices masquerading as “reasonable network management.” Second, and critically, the growth of
online streaming video services has spurred further evolution of the Internet. Currently, video is the
dominant form of traffic on the Internet. These video services directly confront the video businesses of
the very companies that supply them broadband access to their customers.
The Commission, in its May Notice of Proposed Rulemaking, asked a fundamental
question: “What is the right public policy to ensure that the Internet remains open?” It proposed to
enhance the transparency rule, and follow the Verizon court’s blueprint by relying on section 706 to adopt
a no-blocking rule and a requirement that broadband providers engage in “commercially reasonable”
practices. The Commission also asked about whether it should adopt other bright-line rules or different
standards using other sources of Commission authority, including Title II. And if Title II were to apply,
the Commission asked about how it should exercise its authority to forbear from Title II obligations. It
asked whether mobile services should also be classified under Title II.
Three overarching objectives have guided us in answering these questions, based on the
vast record before the Commission: America needs more broadband, better broadband, and open
broadband networks. These goals are mutually reinforcing, not mutually exclusive. Without an open
Internet, there would be less broadband investment and deployment. And, as discussed further below, all
three are furthered through the open Internet rules and balanced regulatory framework we adopt today.
In enacting the Administrative Procedure Act (APA), Congress instructed expert agencies
conducting rulemaking proceedings to “give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments.” It is public comment that cements an
agency’s expertise. As was explained in the seminal report that led to the enactment of the APA:
The reason for [an administrative agency’s] existence is that it is expected to bring to its
task greater familiarity with the subject than legislators, dealing with many subjects, can
have. But its knowledge is rarely complete, and it must always learn the frequently
clashing viewpoints of those whom its regulations will affect.
Congress could not have imagined when it enacted the APA almost seventy years ago
that the day would come when nearly 4 million Americans would exercise their right to comment on a
proposed rulemaking. But that is what has happened in this proceeding and it is a good thing. The
Commission has listened and it has learned. Its expertise has been strengthened. Public input has
“improve[d] the quality of agency rulemaking by ensuring that agency regulations will be ‘tested by
exposure to diverse public comment.’” There is general consensus in the record on the need for the
Commission to provide certainty with clear, enforceable rules. There is also general consensus on the
need to have such rules. Today the Commission, informed by all of those views, makes a decision
grounded in the record. The Commission has considered the arguments, data, and input provided by the
commenters, even if not in agreement with the particulars of this Order; that public input has created a
robust record, enabling the Commission to adopt new rules that are clear and sustainable.
