FEDERAL CoMMUNIcATIoNS CoMMISSIoN WASHINGToN June I7,2014 The Honorable Al Franken United States Senate 309 Hart Senate Office Building Washington, D.C. 20510 Dear Senator Franken: Thank you for writing to express your concerns regarding the need to reinstate rules topreserve an open Internet for all Americans. I share your sense of *g"rcy on this matter. For this reason, I moved with dispatch to initiat" u pro"""ding to consideinew open Intemet rules to replace those that were vacated by the D.C. Circuit Couriof Appeals in the ikrizoncase. As you Foy, the Notice of Proposed Rulemaking ("Notice") adopted by the Commissio n inMay 2014begins that process. Therein, we ask a ru-t"r of questions about the rules we need to adopt, as well as the appropriate legal foundation for such *1"r. Your letter touches on some of the mostimportant issues presented in the Notice,and I will ensure that it is included in the record of theproceeding and considered as part of the commission,s review. The Commission has struggled for over a decade with how best to protect and promote an open Internet. While_there has been bipartisan consensus, starting under the BushAdministration with Chairman Powell, on the importance of an of,en Internet to economicgrowth, investment, and innovation, we find o*rllrr", today faced with the worst case scenario: we have no Open Internet rules in placelo stop broadband providers from limiting Intemet openness' The status quo is unacceptable. The Commission has already found, and the court has agreed, that broadband providers have economic incentives and technollgical tools to engage inbehavior that can limit Intemet openness and harm consumers and competition. As such, theCommission must craft meaningful rules to protect the open Internet, and it must do so promptly.I can assure you that I will utilize the best tools available to me to ensure the Commission adoptseffective and resilient open Internet rules. Unless and until the Commission adopts new rules,broadband providers will be free to block, degrade, or otherwise disadvantage innovative services on the Internet without threat of sanc-tion by the FCC. - with respect to the legal foundation of the rules, I believe that the Section 706 framework set forth by the court provides us with the tools we rr..d to adopt and implement robust andenforceable Open Internet rules. Nevertheless, the Commission is also seriously considering moving forward to adoptrules using Title II of the Communications Act as the foundation for our legal authority. TheNotice asks specific questions about Title II, including whether the Commifsion should l) revisitits classification of Broadband Internet Access u, * i-rrfor-ation servic e; or 2)separately t^denlif-y and classify as a telecommunications service a service that,,broadband providers . . .furnish to edge providers," as proposed by Mozilla in u ruruy 5 petition filed with the agency. Page2-The Honorable Al Franken The Notice seeks comment on the benefits of both Section 706 and Title II, including the benefits of one approach over the other, to ensure the Internet remains an open platform for innovation and expression. With respect to the substance of the rules, the proposals and questions in the Notice are designed to elicit a record that will give us a foundation to adopt strong, enforceable rules to protect the open Internet and prevent broadband providers from harming consumers or competition. I am especially sensitive to your concems about pay-for-play, or paid prioritization arrangements, and the potential such arrangements have for creating an Internet that is fast for a few, and slow for everyone else. Let me be crystal clear: there must only be one Internet. It must be fast, robust and open for everyone. The Notice addresses this issue head-on, even asking if paid prioritization should be banned outright. It also proposes clear rules of the road and aggressive enforcement to prevent unfair treatment of consumers, edge providers and innovators. Small companies and startups must be able to reach consumers with their innovative products and services, and they must be protected against harmful conduct by broadband providers. The Notice includes a number of proposals designed to empower consumers and small businesses who may find themselves subject to harmful behavior by a broadband provider. For example, the Court of Appeals did uphold our existing transparency rule, and the Notice proposes to strengthen that rule to require that networks disclose any practices that could change a consumer's or a content provider's relationship with the network. The Notice proposes the creation of an ombudsperson to serve as a watchdog and advocate for start-ups, small businesses and consumers. And the Notice seeks comment on how to ensure that all parties, and especially small businesses and start-ups, have effective access to the Commission's dispute resolution and enforcement processes. This Notice is the first step in the process, and I look forward to comments from all interested stakeholders, including members of the general public, as we develop a fulsome record on the many questions raised in the Notice. To that end, in an effort to maximize public participation in this proceeding, we have established an Open Internet email address - openintemet@fcc.eov - to ensure that Americans who may not otherwise have the opportunity to participate in an FCC proceeding can make their voices heard. In addition, to ensure sufficient opportunity for broad public comment, we have provided a lengthy comment and reply period through September 10,2A14, that will allow everyone an opportunity to participate. Again, I appreciate your deep interest in this matter and look forward to continued engagement with you as the proceeding moves forward. Sincerely,