United ,states ,senate
1692
COMMlfln ON COMMERCE SCiENCE.
AND TRANSPORTATION
WASHINGTON. DC ,Ofll0· tl1
October 13, 2009
The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12th Street SW
Washington, DC 20554
Chairman Genachowski.
Thank you for making your stafT available to discuss a number ofthe concerns I have \\ith the concept of
network neutrality, as you recently described it in your speech to the Brookings Institute. A discussion
about the future ofthe Internet as a continuing platform for innovation and economic growth is vitally
important, and I look forward to continuing a constructive dialogue with the Commission in the months
ahead. I remain concerned that what you have announced as a policy framework poses risks to our
efforts to address the lack of broadband connectivity in many rural areas ofthe country, particularly my
home state ofTexas. I wanted to formally share my concerns and request that you provide infonnation
in response to this letter for the benefit ofall members ofCongress to assess the need for regulatory
activity at this time and its possible implications.
My concerns focus in lour areas: necessity ofintervention, impact on investment, unintended
consequences, and fair application. Whether the Commission currently possesses sufficient authority to
enforce the open Internet principles announced several years ago by the Commission is an important
threshold issue. Ifthe Commission has legal authority to take enforcement action, as it recently told an
appellate court, I question whether it is then necessary to conduct a rulemaking on the subject,
particularly one which would simultaneously announce additional principles with uncertain implications
for investment and innovation.
The Commission's Internet Policy Statement and the underlying openness principles have been in place
for a number ofyears, and under this framework companies have made billions ofdollars ofinvestment
in wired and wireless communications networks, spurring innovation and access. These principles are
generally understood, if not universally endorsed, by companies across the various industries that
comprise the Internet community. I am concerned that a regulatory proceeding at this time creates
uncertainty, which in tum, will discourage or at least delay planned investment in critical infrastructure
while the Commission formulates new rules. With long planning timelines and lengthy payback periods,
providers investing in new infrastructure, particularly small rural communications providers and
cooperatives, may be unable to justify investment when they arc uncertain about how new rules may
impact them. That is a critical issue to understand ifwe are to make a serious and sustained effort to
connect the unserved communities across our nation.
I am also concerned about your statements indicating that all ofthe principles and rules will be extended
to wireless services. I am a strong proponent oftechnology neutral regulations and parity, but it is my
understanding that \\'ireless networks are quite different in their engineering and the manner in which
certain applications impact capacity and performance. My fear is that limitations on network
management for wireless companies 'will inevitably require significant upgrades to existing networks, the
cost ofwhich may be borne by consumers in the form ofhigher prices or reduced coverage. Ifthe
Commission is to consider a framework that applies to all technologies used to access the Internet, it
must be certain that it can fInd a balance that guarantees consumers can access the content and
applications oftheir choice, while at the same time offering wireless providers enough flexibility to
manage their networks to guarantee quality ofservice.
Finally, it is important for policy makers to understand whether the Commission views an open Internet
as one where rules apply with equal force to all members ofthe Internet community. Commentary that
suggests all ofthe innovation occurs "at the edge" ofthe Internet with content, applications, and
software is both inaccurate and short sighted. As a member ofthe Commerce Committee for most ofmy
time in Congress, I have seen tremendous innovation across the Internet landscape, in both the
infrastructure and in the applications and content that are delivered to consumers over that infrastructure.
We need to understand whether the Commission Vvill apply its principles and rules on an open Internet to
everyone in the Intcrnet community or requircs additional authority to do so.
I believe that continued discussion of the framework you outlined in your speech is critical in providing
certainty to consumers and investors. I look forward to a continuing dialogue and to the answers you
provide to the questions that follow. I would appreciate your response, ifpossible, by October 21, 2009.
~----....--~.......,~rt-)
Hutchison
ember
(1) According to news reports. the FCC recently told the Court ofAppeals for the District ofColumbia
that the Commission can enforce the principles contained in the 2005 Internet Policy Statement
("Internet Policy Statement"). Please briefly describe the authority the Commission relied on in its
argument to the court and provide a copy ofthe Commission's brief.
(2) In your September 21,2009, speech you stated that you believe there are several clear examples of
conduct that deviates from the Internet Policy Statement. For the following passage in your speech, if
known, please provide the year, summary offacts. and Commission resolution ofeach example:
"We have w;messed certain broadband providers unilaterally block access to VolP applications
(phone calls delivered over data networks) and implement technical measures that degrade the
performance ofpeer-to-peer software distributing lawful content. We have even seen at least one
service provider deny users access to political content. And as many members ofthe Internet
community and key Congressional leaders have noted, there are compelling reasons to be
concerned aboul the future ofopenness."
(3) Please provide the number ofinvestigations or enforcement actions involving alleged violations ofthe
Internet Policy Statement that arc currently pending at the Commission.
(4) Previous Congressional hearings on the subject of~'networkneutrality" havc included testimony from
many in the investment community that new regulations will discourage investment. One analyst
stated, "investors dislike policy upheavals in Washington that distract them from focusing on market
fundamentals ... we have enough to worry about in considering the rapidly changing competitive and
technological environment. In other words, we want regulatory stability and certainty."
Will the Commission. as part ofthe forthcoming rulemaking, consider the impact on capital formation
and investment ofany new principles and the codification ofprinciples into the Commission's rules?
(5) Significant investment in new infrastructure is particularly difficult for small communications
providers. including cooperatives that serve rural communities. These providers represent a critical
component ofany effort to improve broadband access in unserved areas ofthe country.
a. Are there steps that you can take as Chairman, or that you would recommend, to ensure that the
record in the forthcoming proceeding includes the views ofthese small but critical entities?
b. Are you concerned that planned investment during the pendency ofthe Commission's inquiry and
future rulemaking may be delayed or cancelled while providers await the outcome ofthe
proceedings?
(6) Do you believe that service providers should be allowed to offer enhanced or managed services
(including priority delivery) for a fee to third parties and content providers ifdoing so does not impact
the quality ofservice available to other consumers?
(7) One ofthe possible principles that you announced involves "transparency" ofnetwork management
activity where providers may be required to disclose to the consumer and other Internet entities the
network management practices they use.
..
a. Will the Commission's rulemaking inquiry seek comment from parties about disclosure or limits on
particular network management practices such as "deep packet inspection." traffic shaping, and
other congestion management activities?
b. Will the Commission's inquiry examine any potential privacy implications ofnetwork management
activity?
c. Will the Commission seek to provide protections to guarantee that none ofthe information it
requires providers to disclose with respect to network management practices can be used to identify
potential vulnerabilities or points ofattack by individuals seeking to mount cyber attacks on our
communications networks?
(8) The Internet community includes a diversity ofentities including companies that provide search
capabilities to users. Some ofthese entities have been criticized for arrangements they have made with
foreign governments to limit access to particular information that is returned in response to queries.
Domestically, some ofthese entities have also been accused ofconcealing the practices they use to
"rank" search results. Please answer the following:
a. Do you believe that the Commission has the authority to include all members ofthe Internet
community, including search engine providers, in any neutrality framework the Commission adopts
in its rules?
b. Separately, do you believe that an "open Internet" should require that all members ofthe Internet
community, including search engine providers, be subject to openness principles?