OFFICE OF
THE CHAIRMAN
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON
October 21, 2009
The Honorable Kay Bailey Hutchison
Ranking Member
Committee on Commerce, Science, and Transportation
United States Senate
284 Russell Senate Office Building
Washington, DC 20510
Dear Senator Hutchison:
Thank you for your letter regarding the draft Commission item to develop rules to preserve an
open Internet through an open, participatory public process. I believe we share the same goal - 
safeguarding the open Internet as an enduring engine for innovation, investment, economic
growth, and the free flow of information. To this important end, you have my pledge to continue
working with you and your staff in an ongoing, constructive dialogue with respect to this crucial
infrastructure.
Many of the specific questions you posed in your letter will be more fully addressed in the
Notice of Proposed Rulemaking (NPRM) that the Commission will consider on Thursday. I will
make sure that you and your staff receive a copy of that NPRM as soon as it is public after the
Commission's meeting. In addition, I will also instruct the Commission staff to fully brief your
staff on the details of the NPRM as soon as can be arranged.
In your letter, you state that your concerns are focused upon the necessity of intervention, impact
on investment, unintended consequences, and fair process. Let me address each of these
concerns.
With respect to the necessity for intervention, I believe that preserving the open Internet and
giving all stakeholders greater predictability about the Commission's policy is furthered by
taking action at this time. Through the NPRM, the Commission will be seeking comment on an
Internet policy that is a continuation of an effort begun many years earlier. Over the last several
years, for example, the Commission has considered the question of how to safeguard the free and
open Internet in more than 10 different proceedings, building a record of over 100,000 pages of
comments, submitted by approximately 40,000 companies, organizations, and members of the
public. Moreover, in 2005, a unanimous Commission issued the Internet Policy Statement,
affirming the agency's "duty to preserve and promote the vibrant and open character of the
Internet." In the intervening years, the Commission has enforced these principles on a
bipartisan basis and imposed openness requirements several major mergers. Two years ago, the
Commission issued a broad-ranging Notice ofInquiry that sought comment on many of the
issues addressed in today's decision, including the topics of non-discrimination and
transparency.
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Notwithstanding these actions, we have continued to see problems in the marketplace, though
very likely not as many as we would have seen absent Commission action. And, no less
important, the openness principles that the Commission adopted in 2005 are under attack
precisely because they did not emerge from the kind of public, participatory rule-making the
NPRM would launch. I firmly believe that our nation's innovation and investment goals are
advanced if the marketplace is clear about Commission policy with respect to the Internet and I
believe removing ambiguity - legal or otherwise - will allow businesses small and large to
implement business plans with greater confidence.
With respect to the impact on investment, I fully concur with you that the "Commission's
Internet Policy Statement and the underlying openness principles have been in place for a
number of years and under this framework companies have made billions of dollars of
investment in wired and wireless communications networks, spurring innovation and access."
The free and open Internet has been an unparalleled platform for economic growth and
investment. Many well-known Internet companies began with little more than a bright idea and
a strong work ethic. In addition, there are some 600,000 Americans who rely upon the free and
open Internet to run small businesses through Ebay, for example. Moreover, Internet service
providers have made many billions of dollars of investment in networks and infrastructure,
responding in part to the strong demand from consumers for higher speed service to access the
lawful content, applications, and services of their choice on the Internet. I fully acknowledge the
importance of infrastructure investments and it is imperative that we have ongoing investment. I
welcome input from all stakeholders on how best to maximize investment across the broadband
ecosystem, including how to promote network investment in rural areas. The NPRM also seeks
input on how a category of "specialized" or "managed" services can be encompassed as part of a
larger broadband policy in a manner that welcomes innovation from ISPs and experimentation in
business models.
With respect to unintended consequences, we are keenly aware of this risk and it is why I have
emphasized that open Internet rules should provide flexible, high level guidance rather than
heavy-handed prescription. One way I am seeking to avoid unintended consequences is to invite
robust public input over a multi-month process on the array of issues involved. In addition, as
requested by many stakeholders and advocates of reform of FCC processes, I am asking my
fellow Commissioners to join me in putting out draft, proposed rules for all participants to see,
comment on, and help the agency refine from the very start of the process.
With respect to fair process, in addition to including draft, proposed rules, we will seek broad
input both through traditional sources, such as public comments, but also, as with our efforts to
develop a national broadband strategy, through less traditional means, such as through public
workshops. The rulemaking process will be methodical, fair, and transparent for all interests
In short, the goal of the NPRM is to preserve the free and open Internet and its extraordinary
benefits, including the ability of entrepreneurs, small businesses as well as network operators to
innovate without seeking permission from any central authority, public or private. The NPRM is
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intended to launch a process by which all viewpoints and concerns, including questions about
rural investment and wireless services, will be reviewed and examined.
Let me also add that I believe that our policy must encompass the ability of broadband Internet
access providers to reasonably manage their networks. Moreover, although I believe that the
principles should apply to all modes of accessing the Internet, the NPRM will seek input on how,
when, and to what extent the principles should apply to different access platforms - such as
mobile wireless services. There are meaningful differences between wireline and current
wireless networks, and our policy should reflect such distinctions. Finally, our overall policy
must also welcome ongoing innovation and I believe that specialized or managed services can
bring supplemental innovation and applications to consumers without endangering the free and
open Internet we seek to preserve for all users.
The goal of the proposals I have outlined is to preserve the free and open Internet, to provide
greater predictability for the marketplace, and to foster continued innovation and investment.
Any final rules will be the result of a fair and open process. Again, I look forward to a
constructive dialogue with you on these issues. Please do not hesitate to contact me if I can be of
further assistance.
. s Genachowski
Chairman