Federal Communications Commission FCC 14-61
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Protecting and Promoting the Open Internet
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GN Docket No. 14-28
NOTICE OF PROPOSED RULEMAKING
Adopted:  May 15, 2014 Released: May 15, 2014
Comment Date:  July 15, 2014
Reply Comment Date:  September 10, 2014
By the Commission:  Chairman Wheeler and Commissioner Clyburn issuing separate statements; 
Commissioner Rosenworcel concurring and issuing a statement. Commissioners 
Pai and O’Rielly dissenting and issuing separate statements.
TABLE OF CONTENTS
Para.
I. INTRODUCTION.................................................................................................................................. 1
II. BACKGROUND.................................................................................................................................. 11
III. DISCUSSION ...................................................................................................................................... 25
A. The Continuing Need for Open Internet Protections ..................................................................... 25
1. An Open Internet Promotes Innovation, Competition, Free Expression, and 
Infrastructure Deployment ...................................................................................................... 25
2. Broadband Providers Have the Incentive and Ability to Limit Openness............................... 39
B. Scope of the Rules ......................................................................................................................... 54
C. Transparency Requirements to Protect and Promote Internet Openness ....................................... 63
1. The 2010 Transparency Rule................................................................................................... 63
2. Enhancing Transparency to Protect and Promote Internet Openness...................................... 66
3. Compliance and Enforcement ................................................................................................. 87
D. Preventing Blocking of Lawful Content, Applications, Services, and Nonharmful Devices ........ 89
1. The 2010 No-Blocking Rule ................................................................................................... 91
2. Proposal to Adopt a No-Blocking Rule................................................................................... 94
3. Establishing the Minimum Level of Access under the No-Blocking Rule ............................. 97
4. Application of the No-Blocking Rule to Mobile Broadband ................................................ 105
5. Applicability of the No-Blocking Rule to Devices ............................................................... 109
Federal Communications Commission FCC 14-61
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E. Codifying an Enforceable Rule to Protect the Open Internet That Is Not Common 
Carriage Per Se ............................................................................................................................ 110
1. The 2010 No Unreasonable Discrimination Rule ................................................................. 113
2. Proposed Elements of an Enforceable Legal Rule ................................................................ 116
3. Potential Conduct That Is Per Se Commercially Unreasonable............................................ 137
4. Potential Safe Harbors........................................................................................................... 139
F. Legal Authority............................................................................................................................ 142
1. Section 706............................................................................................................................ 143
2. Title II.................................................................................................................................... 148
3. Other Sources of Authority ................................................................................................... 156
4. Constitutional Considerations ............................................................................................... 159
G. Other Laws and Considerations ................................................................................................... 160
H. Enforcement and Dispute Resolution .......................................................................................... 161
1. Background ........................................................................................................................... 161
2. Designing an Effective Enforcement Process ....................................................................... 162
3. Complaint Processes, Enforcement, and Additional Forms of Dispute Resolution.............. 172
IV. PROCEDURAL MATTERS.............................................................................................................. 177
A. Paperwork Reduction Act Analysis ............................................................................................. 177
B. Initial Regulatory Flexibility Analysis......................................................................................... 178
C. Comment Filing Procedures ........................................................................................................ 179
D. Ex Parte Rules.............................................................................................................................. 181
E. Contact Person ............................................................................................................................. 182
V. ORDERING CLAUSES..................................................................................................................... 183
APPENDIX A—Proposed Rules
APPENDIX B—Initial Regulatory Flexibility Analysis
Federal Communications Commission FCC 14-61
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I. INTRODUCTION
1. The Internet is America’s most important platform for economic growth, innovation, 
competition, free expression, and broadband investment and deployment.  As a “general purpose 
technology,” the Internet has been, and remains to date, the preeminent 21st century engine for innovation 
and the economic and social benefits that follow. These benefits flow, in large part, from the open, end-
to-end architecture of the Internet, which is characterized by low barriers to entry for developers of new 
content, applications, services, and devices and a consumer-demand-driven marketplace for their 
products. As the Commission explained in its 2010 Open Internet Order, the Internet’s open architecture 
allows innovators and consumers at the edges of the network “to create and determine the success or 
failure of content, applications, services and devices,” without requiring permission from the broadband 
provider to reach end users.
1
  As an open platform, it fosters diversity and it enables people to build 
communities.
2. We start with a fundamental question:  What is the right public policy to ensure that the 
Internet remains open?  This Notice of Proposed Rulemaking (Notice), and the comment process that 
follows, will turn on this fundamental question.  
3. Today, there are no legally enforceable rules by which the Commission can stop 
broadband providers from limiting Internet openness.  This Notice begins the process of closing that gap, 
by proposing to reinstitute the no-blocking rule adopted in 2010 and creating a new rule that would bar 
commercially unreasonable actions from threatening Internet openness (as well as enhancing the 
transparency rule that is currently in effect). 
4. The goal of this proceeding is to find the best approach to protecting and promoting 
Internet openness.  Per the blueprint offered by the D.C. Circuit in its decision in Verizon v. FCC, the 
Commission proposes to rely on section 706 of the Telecommunications Act of 1996.
2
  At the same time, 
the Commission will seriously consider the use of Title II of the Communications Act as the basis for 
legal authority.  This Notice seeks comment on the benefits of both section 706 and Title II, including the 
benefits of one approach over the other.  Under all available sources of legal authority (including also 
Title III for mobile services), the Commission seeks comment on the best ways to define, prevent and 
punish the practices that threaten an open Internet. We emphasize in this Notice that the Commission 
recognizes that both section 706 and Title II are viable solutions and seek comment on their potential use. 
5. It is important to always remember that the Internet is a collection of networks, not a 
single network. And that means that each broadband provider can either add to the benefits that the 
Internet delivers to Americans—by maintaining Internet openness and by extending the reach of 
broadband networks—or it can threaten those benefits—by restricting its customers from the Internet and 
preventing edge providers from reaching consumers over robust, fast and continuously improving 
networks.  This is a real threat, not merely a hypothetical concern. 
6. In its 2010 Order, the Commission found that providers of broadband Internet access 
service had three types of incentives to limit Internet openness.  First, broadband providers may have 
economic incentives to block or disadvantage a particular edge provider or class of edge 
                                                     
1
Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 
17905, 17910, para. 13 (2010) (Open Internet Order or Order), aff’d in part, vacated and remanded in part sub 
nom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).  Among other examples, the Commission cited Sir Tim 
Berners-Lee, who—25 years ago—needed neither permission nor approvals from network operators to invent the 
World Wide Web using existing Internet layer and transport protocols.  Id.
2
Section 706 of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 706, 110 Stat. 56, 153 (1996) (1996 
Act), as amended in relevant part by the Broadband Data Improvement Act (BDIA), Pub. L. No. 110-385, 122 Stat. 
4096 (2008), is now codified in Title 47, Chapter 12 of the United States Code.  See 47 U.S.C. § 1301 et seq.
Federal Communications Commission FCC 14-61
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providers.
3
Second, broadband providers may have incentives to increase revenues by charging edge 
providers for access or prioritized access to the broadband provider’s end users.
4
In particular, excessive 
fees could reduce edge provider entry, suppress innovation, and depress consumer demand.
5
Third, if 
providers could profitably charge edge providers they would have an incentive “to degrade or decline to 
increase the quality of service they provide to non-prioritized traffic.”
6
7. Those threats are even more important today because Americans and American 
businesses have become even more dependent on the Internet.  For example, according to the Pew 
Research Internet Project, as of January 2014, 87 percent of Americans used the Internet, compared to 
14 percent in 1995.
7
  And it is a critical route of commerce, supporting an e-commerce marketplace that 
now boasts U.S. revenues of $263.3 billion.
8
8. Of particular concern are threats to American innovation. In “the end-to-end architecture, 
different economic actors can independently choose their innovation projects.”
9
Innovation is the chief 
driver of American economic growth, which means that all Americans lose if the opportunity to innovate 
is curbed.  For example, an economic study originally released in February 2012 and updated in July 2013 
reported that the app economy is responsible for roughly 752,000 jobs in the United States, which is an 
increase from zero in 2007 when the iPhone was introduced.
10
But equally important are the jobs that 
could be—but might not be—created if edge innovation and investment were to be chilled by doubt that 
the Internet will remain open or, even worse, if openness were defeated. 
9. Although the Commission has emphasized for almost a decade the importance of legally
enforceable standards, the United States Court of Appeals for the District of Columbia Circuit has twice 
invalidated the Commission’s attempts, most recently in Verizon v. FCC, decided this January.
11
It is in 
the absence of these protections for the open Internet that the Commission must act to ensure that new 
legally enforceable rules are put in place.  That is a gap that must be closed as quickly as possible.
10. The remainder of the Notice proceeds as follows.  First, we generally propose to retain 
the definitions and scope of the 2010 rules. Second, we tentatively conclude that the Commission should 
enhance the transparency rule that was upheld by the D.C. Circuit so that the public and the Commission 
have the benefit of sunlight on broadband provider actions and to ensure that consumers and edge 
                                                     
3
Open Internet Order, 25 FCC Rcd at 17919, para. 21; see Writers Guild of America East Comments at 2-3.  In the 
Open Internet Order, the Commission defined “end user” as any individual or entity that uses a broadband Internet 
access service and sometimes used “subscriber” or “consumer” to refer to those end users that subscribe to a 
particular broadband Internet access service. “Edge provider” was defined as referring to content, application, 
service, and device providers, because they generally operate at the edge rather than the core of the network. These 
terms were not mutually exclusive. See Open Internet Order, 25 FCC Rcd at 17907, para. 4 n.2.
4
Open Internet Order, 25 FCC Rcd at 17919, para. 24; see Writers Guild of America East Comments at 2-3.
5
Open Internet Order, 25 FCC Rcd at 17919-20, para. 25.
6
Id. at 17922, para. 29.
7
Pew Research Internet Project, Internet Use Over Time, http://www.pewinternet.org/data-trend/internet-
use/internet-use-over-time/ (last visited Apr. 22, 2014).
8
See U.S. Census Bureau, Quarterly Retail E-Commerce Sales, 4
th
Quarter 2013. 
http://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf.
9
Barbara Van Schewick, Internet Architecture and Innovation 301 (2010).  
10
See Michael Mandel, 752,000 App Economy Jobs on the 5th Anniversary of the App Store, Progressive Policy 
Institute Blog (July 8, 2013), http://www.progressivepolicy.org/2013/07/752000-app-economy-jobs-on-the-5th-
anniversary-of-the-app-store/; Michael Mandel, Where the Jobs Are: The App Economy 1, TechNet (Feb. 7, 2012), 
http://www.technet.org/wp-content/uploads/2012/02/TechNet-App-Economy-Jobs-Study.pdf.
11
Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).
Federal Communications Commission FCC 14-61
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providers—indeed, the Internet community at large—have the information they need to understand the 
services they are receiving and to monitor practices that could undermine the open Internet.  Third, we 
tentatively conclude that the Commission should adopt the text of the no-blocking rule from the Open 
Internet Order with a revised rationale, in order to ensure that all end users and edge providers can enjoy 
the use of robust, fast and dynamic Internet access.  Fourth, and where conduct would otherwise be 
permissible under the no-blocking rule, we propose to create a separate screen that requires broadband 
providers to adhere to an enforceable legal standard of commercially reasonable practices, asking how 
harm can best be identified and prohibited and whether certain practices, like paid prioritization, should 
be barred altogether. Fifth, we propose a multi-faceted dispute resolution process to provide effective 
access for end users, edge providers, and broadband network providers alike and the creation of an 
ombudsperson to act as a watchdog to represent the interests of consumers, start-ups, and small 
businesses.  Sixth, and finally, we ask how either section 706 or Title II (or other sources of legal 
authority such as Title III for mobile services) could be applied to ensure that the Internet remains open.
II. BACKGROUND
11. Today’s Notice rests upon over a decade of consistent action by the Commission to 
protect and promote the Internet as an open platform for innovation, competition, economic growth, and
free expression. At the core of all of these Commission efforts has been a view endorsed by four 
Chairmen and a majority of the Commission’s members in office during that time:  That FCC oversight is 
essential to protect the openness that is critical to the Internet’s success.  In recognition of this, the 
Commission has demonstrated a steadfast commitment to safeguarding that openness. 
12. In 2004, former Chairman Michael Powell first articulated basic guiding principles for 
preserving Internet freedom in an address at Silicon Flatirons.  Chairman Powell recognized that 
“consumers’ hunger for an ever-expanding array of high-value content, applications, and devices”
12
fueled investment in broadband networks as the “impressive generators of economic growth, innovation, 
and empowerment.”  He explained that “ensuring that consumers can obtain and use the content, 
applications and devices they want . . . is critical to unlocking the vast potential of the broadband 
Internet.”
13
13. A year later, reinforcing Chairman Powell’s guidance, the Commission unanimously 
approved the Internet Policy Statement setting forth four general Internet policy principles intended “[t]o 
encourage broadband deployment and preserve and promote the open and interconnected nature of the 
Internet.”
14
  Specifically, subject to “reasonable network management,”
15
the principles entitle consumers 
to (1) “access the lawful Internet content of their choice;” (2) “run applications and use services of their 
choice, subject to the needs of law enforcement;” (3) “connect their choice of legal devices that do not 
                                                     
12
Michael K. Powell, Chairman, Federal Communications Commission, Preserving Internet Freedom:  Guiding 
Principles for the Industry 3, Remarks at the Silicon Flatirons Symposium (Feb. 8, 2004), 
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf (Preserving Internet Freedom).  
13
Id. at 3.
14
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory 
Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand 
Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Review 
of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the Internet 
Over Cable and Other Facilities Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for 
Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 
98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (Internet 
Policy Statement).
15
Id. at 14988 n.15.
Federal Communications Commission FCC 14-61
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harm the network;” and (4) enjoy “competition among network providers, application and service 
providers, and content providers.”
16
    
14. The Commission incorporated these open Internet principles in a series of merger 
proceedings.  In 2005, the Commission conditioned approval of the SBC/AT&T and Verizon/MCI 
mergers on the merged entities’ compliance with the Internet Policy Statement.
17
  Although the 
Commission did not adopt any formal open Internet conditions on the Adelphia/Time Warner/Comcast
transactions, the Commission made clear that its Internet Policy Statement “contains principles against 
which the conduct of Comcast [and] Time Warner . . . can be measured.”
18
  So too, in 2006, the 
Commission accepted the AT&T and BellSouth commitment to “maintain a neutral network and neutral 
routing in [the merged entity’s] wireline broadband Internet access service,” as a formal condition of the 
merger.
19
  Likewise, in the 2011 Comcast-NBCU merger, the Commission adopted the commitments of 
the merged entity to not “prioritize affiliated Internet content over unaffiliated Internet content . . . [or] 
treat affiliated network traffic differently from unaffiliated network traffic” as well as to comply with the 
Commission’s open Internet rules, regardless of the effect of “any judicial challenge” affecting those 
rules.
20
  
15. The Commission likewise incorporated openness principles for mobile services, adopting
an open platform requirement for licensees in the Upper 700 MHz C Block in 2007.
21
  Specifically, the 
rules require Upper 700 MHz C-Block licensees to allow customers, device manufacturers, third-party 
application developers, and others to use or develop the devices and applications of their choice for Upper 
                                                     
16
Id. at 14988, para. 4.
17
SBC Communications, Inc. and AT&T Corp. Applications for Approval of Transfer of Control, WC Docket No. 
05-65, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211 (2005) (SBC/AT&T Transfer of 
Control Order); Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, 
WC Docket No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005) 
(Verizon/MCI Transfer of Control Order).  The SBC/AT&T condition remained effective until November 2007, and 
the Verizon/MCI condition until January 2008, two years following the respective closing dates of each merger.  See 
SBC/AT&T Transfer of Control at Appx. F; Verizon/MCI Transfer of Control Order at Appx. G. 
18
Applications for Consent to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications 
Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries),
Assignees, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors and 
Transferors, to Comcast Corporation (Subsidiaries), Assignees and Transferees, Comcast Corporation, Transferor,
to Time Warner Inc., Transferee, Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB Docket 
No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203, 8299, para. 223 (2006).
19
See AT&T Inc. and BellSouth Corporation Application for Transfer of Control, WC Docket No. 06-74, 
Memorandum Opinion and Order, 22 FCC Rcd 5662, 5663, para. 2 (2007) (AT&T/BellSouth Merger Order); see 
also SBC/AT&T Transfer of Control Order, 20 FCC Rcd at 18392, para. 211.
20
Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to Assign 
Licenses and Transfer Control of Licenses, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 
4239, 4275, para. 94 & n.213 (2011).
21
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands; Revision of the Commission’s Rules to Ensure 
Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission’s Rules 
Governing Hearing Aid-Compatible Telephones; Biennial Regulatory Review-Amendment of Parts 1, 22, 24, 27,
and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel 
Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules; 
Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development 
of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety 
Communications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement under 
Commission’s Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No. 
06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15359 (2007) (700 MHz Second 
Report and Order); 47 C.F.R. § 27.16.
Federal Communications Commission FCC 14-61
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700 MHz C-Block networks, provided those devices and applications meet all applicable regulatory 
requirements and comply with reasonable conditions related to management of the wireless network (i.e., 
do not cause harm to the network).  Further, the Commission prohibited Upper 700 MHz C-Block 
licensees from disabling features or functionality in handsets where such action is not related to 
reasonable network management and protection, or compliance with applicable regulatory requirements.
22
  
16. Also in 2007, the Commission unanimously adopted the Broadband Industry Practices 
Notice of Inquiry, explaining that vigilance and a willingness to act were necessary to keep the Internet 
open.
23
  The Broadband Industry Practices Notice specifically sought comment on whether the Internet
Policy Statement should be amended or expanded.
24
  
17. Meanwhile, the Commission applied open Internet principles in the context of particular 
enforcement proceedings.  Just before the Commission adopted the Internet Policy Statement, the 
Enforcement Bureau had entered into a consent decree with Madison River Communications, a telephone 
company and provider of digital subscriber line (DSL) service, arising from complaints by Vonage that 
Madison River was blocking ports that were typically used by Vonage customers to make Voice over 
Internet Protocol (VoIP) telephone calls.
25
  The consent decree required Madison River to stop blocking 
VoIP ports and refrain from otherwise inhibiting customers from using the VoIP applications of their 
choice.
26
18. In 2007, several parties filed complaints with the Commission alleging that Comcast was 
interfering with its customers’ use of peer-to-peer applications in violation of the Internet Policy 
Statement.
27
  Such applications allow users to share large files directly with one another without going 
through a central server, but also can consume significant amounts of bandwidth.  In response, Comcast 
asserted that its conduct was a reasonable network management practice necessary to ease congestion.
28
  
The Commission disagreed and, in a 2008 Order, concluded that the company’s practice “contravene[d]
. . . federal policy” by “significantly imped[ing] consumers’ ability to access the content and use the 
applications of their choice.”
29
  As the Commission explained, Comcast’s “practice unduly squelch[ed]
                                                     
22
See id. at 15365, para. 206; 47 C.F.R. § 27.16.
23
See Broadband Industry Practices, WC Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894, 7901 (2007) 
(Broadband Industry Practices Notice) (Statement of Chairman Kevin J. Martin:  “The Commission is ready, 
willing, and able to step in if necessary.”); id. at 7909 (Statement of Commissioner Robert M. McDowell:  “[W]e 
must remain vigilant against possible market failure or anticompetitive conduct that would hamper the full 
development of the Internet and related services being provided to consumers.”).
24
Id. at 7898, para. 10.  It asked whether and, if so, how the Commission should add non-discrimination and 
transparency principles to the four principles adopted in 2005. Id. at 7897-98, paras. 8-9.  Concerned about the 
limited transparency of broadband Internet access providers’ practices, the Commission asked “whether providers 
disclose their [network management and pricing] practices to their customers, to other providers, to application 
developers, and others.”  Id.
25
Madison River Communications, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (Enforcement Bur. 2005) 
(Madison River Order).
26
See id. at 4297, para. 5.
27
Complaint of Free Press & Public Knowledge Against Comcast Corp., File No. EB-08-IH-1518 (filed Nov. 1, 
2007); Petition of Free Press et al. for Declaratory Ruling, WC Docket No. 07-52 (filed Nov. 1, 2007).
28
Comcast Comments, WC Docket No. 07-52, at 14 (filed Feb. 12, 2008).  
29
See Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading 
Peer-to-Peer Applications; Broadband Industry Practices; Petition of Free Press et al. for Declaratory Ruling that 
Degrading an Internet Application Violates the FCC’s Internet Policy Statement and Does Not Meet an Exception 
for “Reasonable Network Management,” File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum Opinion 
and Order, 23 FCC Rcd 13028, 13054, 13057, paras. 44, 49 (2008) (Comcast Order). 
Federal Communications Commission FCC 14-61
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the dynamic benefits of an open and accessible Internet,” harm that was further compounded by 
Comcast’s failure to disclose its practice to its customers.
30
  In the Comcast Order, the Commission 
asserted ancillary jurisdiction under Title I of the Communications Act and concluded that it could 
resolve the dispute through adjudication rather than rulemaking.
31
  
19. Comcast challenged that decision in the D.C. Circuit, arguing (among other things) that 
the Commission lacked authority to prohibit a broadband Internet service provider from engaging in 
discriminatory practices that violate the four principles the Commission announced in 2005.
32
  On April 6, 
2010, the D.C. Circuit granted Comcast’s petition for review and vacated the Commission’s enforcement 
decision.  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.
33
20. While the Comcast case was pending, the Commission issued a Notice of Proposed 
Rulemaking seeking comment on whether the Commission should codify the four principles stated in the 
Internet Policy Statement, plus proposed nondiscrimination and transparency rules, all subject to 
reasonable network management.
34
  
21. In December 2010, the Commission released the Open Internet Order, adopting three 
basic rules grounded in the Commission’s prior decisions and broadly accepted Internet norms.
35
  First, 
the Order imposed a transparency rule, requiring both fixed and mobile providers to “publically disclose 
accurate information regarding the network management practices, performance, and commercial terms” 
of their broadband Internet access service.
36
  The rule specified that such disclosures be “sufficient for 
consumers to make informed choices regarding the use of such services and for content, application, 
service, and device providers to develop, market, and maintain Internet offerings.”
37
  Second, the Order 
adopted anti-blocking requirements.  The rule barred fixed providers from blocking “lawful content, 
applications, services, or non-harmful devices subject to reasonable network management.”
38
  It 
prohibited mobile providers from blocking “consumers from accessing lawful websites,” as well as 
“applications that compete with the provider’s voice or video telephony services,” subject to “reasonable 
network management.”
39
  Third, the Order adopted an anti-discrimination rule for fixed providers, barring 
them from “unreasonably discriminat[ing] in transmitting lawful network traffic,” subject to “reasonable 
network management.”
40
  
                                                     
30
See id. at 13028, para. 1.
31
Id. at 13033-50, paras. 12-40.
32
See Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). 
33
Comcast, 600 F.3d at 658-60. 
34
See Preserving the Open Internet et al., GN Docket No. 09-191, WC Docket No. 07-52, Notice of Proposed 
Rulemaking, 24 FCC Rcd 13064, 13067-68, 13100-15, paras. 10, 16, 88-141 (2009) (Open Internet NPRM).  
Although the Open Internet NPRM recast the Internet Policy Statement principles as rules rather than consumer 
entitlements, protecting and empowering end users remained a central purpose of open Internet protections
35
See Open Internet Order, 25 FCC Rcd 17905, para. 1.   
36
47 C.F.R. § 8.3.
37
Id.
38
47 C.F.R. § 8.5.
39
Id.
40
47 C.F.R. § 8.7.
Federal Communications Commission FCC 14-61
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22. Verizon challenged the Open Internet Order in the D.C. Circuit on several grounds.
41
  It 
argued that the Commission lacked statutory authority to adopt the rules, that the blocking and non-
discrimination rules violated the Communications Act by imposing common carriage regulation on an 
information service, that the Order was arbitrary and capricious, and that the rules violated the First and 
Fifth Amendments to the U.S. Constitution.  
23. On January 14, 2014, the D.C. Circuit ruled on Verizon’s challenge to the Open Internet 
Order.
42
As discussed further below, the court upheld the Commission’s reading that sections 706(a) and 
(b) of the Telecommunications Act grant the Commission affirmative authority to encourage and 
accelerate the deployment of broadband capability to all Americans through, among other things, 
measures that promote competition in the local telecommunications market or remove barriers to 
infrastructure investment.
43
  The court further held that the Commission could utilize that section 706 
authority to regulate broadband Internet access service.
44
  It concluded that the Commission had 
adequately justified the adoption of open Internet rules by finding that such rules would preserve and 
facilitate the “virtuous circle” of innovation, demand for Internet services, and deployment of broadband 
infrastructure and that, absent such rules, broadband providers would have the incentive and ability to 
inhibit that deployment.
45
  The court therefore rejected Verizon’s challenge to the transparency rule.
46
  
However, the court struck down the “anti-blocking” and “anti-discrimination” rules, explaining that the
Commission had chosen an impermissible mechanism by which to implement its legitimate goals. 
Specifically, the court held that the Commission had imposed per se common carriage requirements on 
providers of Internet access services.
47
  Such treatment was impermissible because the Commission had 
classified fixed broadband Internet access service as an information service, not a telecommunications 
service, and had classified mobile broadband Internet access service as a private mobile service rather 
than a commercial mobile service.
48
  The court remanded the case to the Commission for further 
proceedings consistent with its opinion.
24. Today, we respond directly to that remand and propose to adopt enforceable rules of the 
road, consistent with the court’s opinion, to protect and promote the open Internet.  As the above history 
demonstrates, our action builds on the foundation begun under Chairman Powell, continued under
Chairmen Martin and Genachowski, and reinforced by a decade of Commission policy.   
                                                     
41
Brief of Petitioner-Appellant Verizon, Verizon v. FCC, No. 11-1355 (D.C. Cir. July 2, 2012). 
42
Verizon v. FCC, 740 F.3d 623 (D.C. Cir.2014).  
43
Id. at 635-42.  In the Open Internet Order, the Commission explained its understanding that section 706(a) 
“authorizes the Commission . . . to take actions . . . that encourage the deployment of advanced telecommunications 
capability by any of the means listed in the provision.”  Open Internet Order, 25 FCC Rcd at 17969, para. 119; see 
also id. at 17969 n.370.  The Verizon court agreed with the Commission’s interpretation and found that “the 
Commission's current understanding of section 706(a) as a grant of regulatory authority represent[s] a reasonable 
interpretation of an ambiguous statute.”  Verizon, 740 F.3d at 637.     
44
Verizon, 740 F.3d at 642.
45
Id. at 644-46.
46
Id. at 659.
47
See id. at 656-59.
48
Id. at 650.
Federal Communications Commission FCC 14-61
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III. DISCUSSION
A. The Continuing Need for Open Internet Protections
1. An Open Internet Promotes Innovation, Competition, Free Expression, and 
Infrastructure Deployment
25. In the Open Internet Order, the Commission reiterated the conclusion underlying its prior 
policies—that the Internet’s openness promotes innovation, investment, competition, free expression and 
other national broadband goals.
49
  The Commission also found that the Internet’s openness is critical to its 
ability to serve as a platform for speech and civic engagement and can help close the digital divide by
facilitating the development of diverse content, applications, and services.
50
  Further, the Order found that 
the benefits of Internet openness—increased consumer choice, freedom of expression, and innovation—
applied to end users accessing the Internet using mobile services as well as fixed services.
51
26. In the Open Internet Order, the Commission specifically found that the Internet’s 
openness enabled a “virtuous circle of innovation in which new uses of the network—including new 
content, applications, services, and devices—lead to increased end-user demand for broadband, which 
drives network improvements, which in turn lead to further innovative network uses.”
52
  For example, the 
Commission explained that innovative streaming video applications and independent sources of video 
content have spurred end-user demand, which, in turn, has led to network investments and increased 
broadband deployment.
53
  By contrast, the Commission reasoned, “[r]estricting edge providers’ ability to 
reach end users, and limiting end users’ ability to choose which edge providers to patronize, would reduce 
the rate of innovation at the edge and, in turn, the likely rate of improvements to network 
infrastructure.”
54
  As discussed further below, the Commission found that, despite the advantages of the 
virtuous circle, broadband providers have short-term incentives to limit openness, generating harms to 
edge providers and users, among others.
55
Thus, the risk of broadband provider practices that may reward 
them in the short term but over the long run erode Internet openness threatens to slow or even break the 
virtuous circle—chilling entry and innovation by edge providers, impeding competition in many sectors, 
dampening consumer demand, and deterring broadband deployment—in ways that may be irreversible or 
very costly to undo.  Also, innovation that does not occur due to lack of Internet openness may be hard to 
detect.
                                                     
49
Open Internet Order, 25 FCC Rcd at 17909-15, paras. 13-19; see Vonage Comments at 1; Voices for Internet 
Freedom Comments at 1-2.  On February 19, 2014, the Wireline Competition Bureau released a Public Notice 
announcing the establishment of a new docket to consider how the Commission should proceed following the 
Verizon v. FCC opinion.  See New Docket Established to Address Open Internet Remand, GN Docket No. 14-28, 
Public Notice, 29 FCC Rcd 1746 (Wireline Comp. Bur. 2014).  Unless otherwise noted, all citations to comments in 
this Notice refer to comments filed in response to the Public Notice released by the Wireline Competition Bureau in 
GN Docket No. 14-28.
50
Open Internet Order, 25 FCC Rcd at 17912-15, paras. 15-18; see Letter from Free Press et al., to Thomas 
Wheeler, Chairman, Federal Communications Commission, GN Docket No. 14-28, at 2 (filed Mar. 20, 2014) (Free 
Press Ex Parte Letter) (stating that “[f]ree speech depends upon access to open and nondiscriminatory platforms for 
that speech”).
51
Open Internet Order, 25 FCC Rcd at 17956, para. 93.
52
Id. at 17910-11, para. 14.  
53
Id. at 17910-11, 17914, paras. 14, 17.
54
Id. at 17910-11, para.14.  
55
See infra Section III.A.2.
Federal Communications Commission FCC 14-61
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27. The Open Internet Order acknowledged that there were tradeoffs to consider in adopting 
the 2010 rules.
56
  The Commission concluded, however, that any small costs of imposing the rules were
outweighed by the positive effect on network investment from the preservation of the openness that drives 
the virtuous circle, as well as the increased certainty in continued openness under the rules.
57
28. The D.C. Circuit held that “the Commission [had] more than adequately supported and 
explained its conclusion that edge provider innovation leads to the expansion and improvement of 
broadband infrastructure.”
58
  The court also found “reasonable and grounded in substantial evidence” the 
Commission’s finding that Internet openness fosters the edge provider innovation that drives the virtuous 
circle.
59
  
29. We believe that these findings, made by the Commission in 2010 and upheld by the 
court, remain valid.  If anything, the remarkable increases in investment and innovation seen in recent 
years—while the rules were in place—appear to have borne out much of the Commission’s view.
60
  Both 
within the network and at its edges, investment and innovation have flourished while the open Internet 
rules were in force.  
30. According to a June 2013 report by the White House Office of Science and Technology 
Policy, for example, nearly $250 billion in private capital has been invested in U.S. wired and wireless 
broadband networks since 2009.
61
  USTelecom reports that broadband capital expenditures have risen 
steadily, from $64 billion in 2009 to $68 billion in 2012.
62
  Wireline providers alone invested $25 billion 
in 2012.
63
  And venture capital financing of “Internet-specific” businesses has doubled in the past four 
years, from $3.5 billion in 2009 to $7.1 billion in 2013.
64
Annual investment in U.S. wireless networks 
grew more than 40 percent between 2009 and 2012, from $21 billion to $30 billion, and exceeds 
investment by the major oil and gas or auto companies.
65
31. Whole new product markets have blossomed in recent years, and the market for 
applications has both diversified and exploded.  A total of $8.33 billion has been raised since 2007 on 
mobile media ventures, a majority of the funds ($4.7 billion) to companies that provide software services, 
including mobile Web development, carrier-backend software, app development, and cloud-based 
                                                     
56
Open Internet Order, 25 FCC Rcd at 17928, para. 39.
57
Id. at 17927-31, paras. 38-42.
58
Verizon, 740 F.3d at 644.
59
Id. 
60
But see AT&T Comments at 17 (“[A]ny broadband access provider that prevents innovative new content and 
applications from using its platform would inflict considerable harm on itself given that most consumers could 
switch to a different provider that does not engage in such self-defeating behavior.”).
61
See White House Office of Science and Technology Policy & The National Economic Council, Four Years of 
Broadband Growth 5 (2013) (Four Years of Broadband Growth), 
http://www.whitehouse.gov/sites/default/files/broadband_report_final.pdf.  
62
See USTelecom, Historical Broadband Provider Capex http://www.ustelecom.org/broadband-industry-
stats/investment/historical-broadband-provider-capex (last visited May 8, 2014); Patrick Brogan, Updated Capital 
Spending Data Showing Rising Broadband Investment in Nation’s Information Infrastructure 1, USTelecom (Nov. 
4, 2013), http://www.ustelecom.org/sites/default/files/documents/103113-capex-research-brief-v2.pdf (Updated 
Capital Spending Data Report).   
63
Updated Capital Spending Data Report at 2.
64
PricewaterhouseCoopers and National Venture Capital Association, Total U.S. Investments by Year Q1 1995-Q4 
2013 (Jan. 17, 2014), http://www.nvca.org/index.php?option=com_docman&task=doc_download&gid=1033&Itemid=317 
(select “Internet-Specific Companies” tab).
65
Four Years of Broadband Growth at 2. 
Federal Communications Commission FCC 14-61
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services in the United States.  In April 2010, Apple released the first version of the iPad, which launched
the tablet market.
66
  The number of tablet users in the United States has increased from 9.7 million in 
2010 to almost 70 million by the end of 2012, and is projected to grow to more than 160 million 
(approximately 50 percent of the U.S. population) by 2016.
67
In 2013, over $1 billion in venture capital 
funding was invested in mobile media startups,
68
and overall app use in 2013 posted 115 percent year-
over-year growth.
69
  According to CTIA, in 2012 there were more than 20 independent non-carrier mobile 
application stores, offering over 3.5 million apps for 14 different operating systems.
70
  The Wall Street 
Journal reported in March 2013 that Apple and Google each offered about 700,000 apps, and that 
application sales were approaching $25 billion.
71
32. Finally, we have seen tremendous growth in the online voice and video markets.  The 
number of hours Americans spend watching video over the Internet has grown 70 percent since June 
2010.
72
  Between 2010 and 2013, revenues from online video services grew 175 percent, from $1.86 
billion to $5.12 billion.
73
  Real-time entertainment (that is, programming that is viewed as it is delivered, 
such as video streamed by Netflix and Hulu) grew from 42.7 percent of the downstream fixed access 
traffic at peak time (generally 8:00 p.m. to 10:00 p.m.) in 2010 to 67 percent of the downstream fixed 
access traffic at peak time by September 2013.
74
VoIP usage has similarly continued to increase. The 
number of global over-the-top mobile VoIP subscribers increased by 550 percent in 2012.
75
33. We have also, however, witnessed a growing digital divide that threatens to undo the 
work of the Commission’s open Internet policies. As certain cities get connected with fiber or other 
                                                     
66
Apple, Apple-history/iPad, http://apple-history.com/ipad (last visited Apr. 8, 2014).
67
SNL Kagan, Media Trends Actionable Metrics, Benchmarks & Projections for Major Media Sectors 262 (2013) 
(SNL Kagan Media Trends).
68
Id. at 278.
69
Flurry Analytics, Mobile Use Grows 115% in 2013, Propelled by Messaging Apps, Flurry Blog (Jan. 13, 2014),  
http://blog.flurry.com/bid/103601/Mobile-Use-Grows-115-in-2013-Propelled-by-Messaging-Apps.
70
Letter from Scott K. Bergmann, Vice President, Regulatory Affairs, CTIA – The Wireless Association, to Thomas 
Wheeler, Chairman, Federal Communications Commission, WT Docket No. 13-135, GN Docket No. 09-51, at 2 
(filed Nov. 13, 2013).
71
Jessica Lessin and Spencer Ante, Apps Rocket Toward $25 Billion in Sales, Wall Street Journal Tech (Mar. 4, 
2013), http://online.wsj.com/news/articles/SB10001424127887323293704578334401534217878.   
72
See Nielsen, Three Screen Report 4, tbl.4 (June 2010), http://www.nielsen.com/content/dam/corporate/us/en/
reports-downloads/2010-Reports/Three-Screen-Report-Q1-2010.pdf (estimating that during the second quarter of 
2010, about 134.5 million Americans watched 3 hours and 10 minutes of video over the Internet per month, and 
about 20 million Americans watched 3 hours and 37 minutes of video on a mobile phone per month); Nielsen, A 
Look Across Media The Cross Platform Report 10, tbl.3 (Dec. 2013), http://www.nielsen.com/content/dam/
corporate/us/en/reports-downloads/2013%20Reports/The-Cross-Platform-Report-A-Look-Across-Media-
3Q2013.pdf (estimating that during the third quarter of 2013, about 147.7 million Americans watched 6 hours and 
40 minutes of video over the Internet per month, and about 53.1 million Americans watched 5 hours and 48 minutes 
of video on a mobile phone per month).   
73
This includes revenues from subscription services as well as sales and rentals of full-length television programs 
and movies.  See SNL Kagan Media Trends at 158.
74
Sandvine Intelligent Broadband Networks, Global Internet Phenomena Report 5, fig.1 (2H 2013), 
https://www.sandvine.com/downloads/general/global-internet-phenomena/2013/2h-2013-global-internet-
phenomena-report.pdf; Sandvine Intelligent Broadband Networks, Fall 2010 Global Internet Phenomena Report 11, 
fig.7 (2010).
75
Press Release, Infonetics Research, Infonetics Research Raises VoLTE Forecast; Over-the-top Mobile VoIP 
Subscribers Nearing 1 Billion Mark (July 8, 2013), http://www.infonetics.com/pr/2013/Mobile-VoIP-Services-and-
Subscribers-Market-Highlights.asp.
Federal Communications Commission FCC 14-61
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technologies capable of providing broadband speeds of 25 Mbps up to 1 Gigabit, rural America and even 
some parts of urban America are falling farther and farther behind.  Recent data suggest that a majority of 
Americans living in urban areas (64 percent) have access to at least 25 Mbps/10 Mbps service, while only 
a substantial minority of Americans residing in rural areas (only 21 percent) have access to that same 25 
Mbps/10 Mbps service.
76
  We are similarly concerned as to whether advanced networks are being 
deployed to all Americans in urban areas, as the construction of new networks, especially competitive 
networks, is an outcome that must be encouraged.
34. In light of developments in the Internet ecosystem since 2010, we wish to refresh the 
record on the importance of protecting and promoting an open Internet.  We seek comment on the current 
role of the Internet’s openness in facilitating innovation, economic growth, free expression, civic 
engagement, competition, and broadband investment and deployment.  Particularly, we seek comment on 
the role the open Internet rules have had in investment in the broadband marketplace—networks and edge 
providers alike. We are similarly interested in understanding the role that the open Internet may play in 
the promotion of competition or in identifying barriers to infrastructure investment that an open Internet 
may eliminate or lessen.  We also seek comment on the role that the open Internet has for public 
institutions, such as public and school libraries, research libraries, and colleges and universities.
77
  
35. Additionally, we seek comment on the impact of the openness of the Internet on free 
expression and civic engagement.  For example, the percentage of Americans who use the Internet 
reached 87 percent in 2014—an increase of 8 percent from 2010, the year in which the Open Internet
Order was adopted—marking “explosive adoption” that has had “wide-ranging impacts on everything 
from: the way people get, share and create news . . . the way they learn; the nature of their political 
activity; their interactions with government; the style and scope of their communications with friends and 
family; and the way they organize in communities.”
78
  In light of the important role that the Internet now 
plays as a vehicle for communication of all sorts—both for consumers and content providers—how 
should we consider the potential impact on social and personal expression of an Internet whose openness 
was not protected?  For example, would there be particular impacts on political speech, on the ability of 
consumers to use the Internet to express themselves, or on the Internet’s role as a “marketplace of ideas” 
that serves the interests of democracy in general, serving even the interests of those Americans who listen 
even if they do not actively speak?
79
  Are there other ways in which we should understand free-expression 
interests and whether they may be impaired by a lack of openness?
80
                                                     
76
We estimate broadband deployment by relying on the broadband deployment data collected by National 
Telecommunications and Information Administration (NTIA) and the states, in coordination with the Commission, 
as part of the State Broadband Initiative (SBI) and called “SBI Data.”  Department of Commerce, NTIA, State 
Broadband Data and Development Grant Program, Docket No. 0660-ZA29, Notice of Funds Availability, 74 Fed. 
Reg. 32545 (July 8, 2009), http://www.ntia.doc.gov/files/ntia/publications/fr_broadbandmappingnofa_090708.pdf.  
77
See, e.g., Letter of Emily Sheketoff, ALA Washington Office, et al. to Thomas Wheeler, Chairman, Federal 
Communications Commission (filed Feb. 13, 2014). 
78
Susannah Fox & Lee Rainie, The Web at 25 in the U.S. 4, Pew Research Internet Project (2014)  
http://www.pewinternet.org/files/2014/02/PIP_25th-anniversary-of-the-Web_0227141.pdf.  The Pew Research 
Internet Project also reports that 73% of Internet users say that it would be somewhat hard or very hard to give up 
the Internet and that 56% of users say that “they have seen an online group come together to held a person or a 
community solve a problem.” Id. at 7, 22.
79
See Abrams v. United States, 250 U.S. 616, 630 (1919)  (Holmes. J., dissenting) (“The ultimate good desired is 
better reached by a free trade in ideas—that the best test of truth is the power of the thought to get itself adopted in 
the competition of the marketplace.”).
80
See, e.g., Marvin Ammori, First Amendment Architecture, Wisconsin L. Rev., Vol. 2012, No. 1 (2012).
Federal Communications Commission FCC 14-61
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36. At the same time, we are mindful of the possible tradeoffs the Commission recognized at 
the time it adopted the Open Internet Order.
81
  When it adopted the rules in 2010, the Commission’s 
primary focus was on the market between broadband providers and their end-user subscribers.  The record 
contained no evidence of U.S. broadband providers engaging in pay-for-priority arrangements, in which 
the broadband provider would agree with a third party to directly or indirectly prioritize some traffic over 
other traffic to reach the provider’s subscribers.
82
  As such, the Commission found that such arrangements 
would be a “significant departure from historical and current practice.”
83
   
37. In the years since, this second side of the market—between broadband providers and 
edge providers or other third parties—has gotten increasing attention.  In its arguments challenging the 
Order, Verizon expressed interest in pursuing commercial agreements with edge providers to govern the 
carriage of the edge providers’ traffic.
84
  We also note that such arrangements between broadband and 
edge providers have begun to emerge.  In January 2014, for example, AT&T launched a new sponsored 
data service, in which an edge provider enters an agreement with AT&T to sponsor and pay for data 
charges resulting from eligible uses of the sponsor’s content by an AT&T mobile subscriber.
85
  
38. We seek comment on the potential for, and development of, new business arrangements
in the market between broadband providers and edge providers.  What does the multi-sided market look 
like, and what are its effects on Internet openness?  Do some types of broadband and edge provider 
arrangements (or aspects of such arrangements) raise greater concerns about Internet openness than 
others?
86
    
2. Broadband Providers Have the Incentive and Ability to Limit Openness
39. The Open Internet Order found that broadband Internet providers had the incentives and 
ability to limit Internet openness, and that they had done so in the past.
87
  And the D.C. Circuit found that 
the Commission “adequately supported and explained” that absent open Internet rules, “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.”
88
As discussed further below, we seek to update the 
record to reflect marketplace, technical, and other changes since the 2010 Open Internet Order was 
adopted that may have either exacerbated or mitigated broadband providers’ incentives and ability to limit 
Internet openness.  We seek general comment on the Commission’s approach to analyzing broadband 
providers’ incentives and ability to engage in practices that would limit the open Internet, as well as more 
targeted comment as addressed below.
                                                     
81
Open Internet Order, 25 FCC Rcd at 17910-11, 17928-29, paras. 14, 39-40.
82
Id. at 17947-48, para. 76; see also Verizon and Verizon Wireless Comments, GN Docket No. 09-191, WC Docket 
No. 07-52, at Attach. C (filed Jan. 14, 2010) (Verizon Topper Declaration) (discussing the potential for a two-sided 
market but stating that “[u]nder current pricing arrangements, broadband providers charge only the consumer side of 
the market for the delivery of content of applications.”).
83
Open Internet Order, 25 FCC Rcd at 17947-48, para. 76; see also Verizon Topper Declaration. 
84
In its brief, Verizon argued that allowing broadband providers to enter into “arrangements (such as advertiser-
supported services) . . . would help recover the costs of building and maintaining broadband networks.”  See Joint 
Reply Brief of Appellants/Petitioners Verizon and MetroPCS at 7-8, Verizon v. FCC, No. 11-1355 (D.C. Cir. 
Dec. 21, 2012).
85
See News Release, AT&T, AT&T Introduces Sponsored Data for Mobile Data Subscribers and Businesses 
(Jan. 6, 2014), http://www.att.com/gen/press-room?pid=25183&cdvn=news&newsarticleid=37366&mapcode.
86
See infra paras. 96, 126, 138.  
87
Open Internet Order, 25 FCC Rcd at 17915-26, paras. 20-37.
88
Verizon, 740 F.3d at 645.
Federal Communications Commission FCC 14-61
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40. As noted above, the Commission has pursued policies to safeguard Internet openness for 
over a decade.  Thus, while the number of existing cases has been relatively few, we believe this to be 
primarily due to the fact that the Commission has had policies in place during the period in question that 
it has been ready to enforce.
89
  This is different from the experience under the European legal framework, 
which for the most part has not contained rules or policies prohibiting blocking and discriminatory 
practices like the Commission’s open Internet regulatory policies.
90
  In the absence of such rules and 
policies, commenters note more instances of broadband providers engaging in some level of restriction in 
Europe than the Commission has witnessed in the United States under its open Internet policies.
91
  For 
example, a survey conducted by the Body of European Regulators for Electronic Communications 
(BEREC) shows that European Internet service providers reported engaging in specific restrictions such 
as traffic degradation as well as blocking and throttling when accessing “specific applications (such as 
gaming, streaming, e-mail or instant messaging service) and, to a much lesser extent, when [accessing] 
specific content and application providers.”
92
  We seek comment on this analysis and ask whether there is 
some other explanation to account for this phenomenon.  
41. We also note that concerns related to the open Internet rules and norms have continued to 
occur.  For example, in 2012, the Commission reached a $1.25 million settlement with Verizon for 
refusing to allow tethering apps on Verizon smartphones, based on openness requirements attached to 
                                                     
89
See Letter from Barbara van Schewick to Marlene H. Dortch, Secretary, Federal Communications Commission, 
GN Docket Nos. 09-191, 14-28, at 2 (filed Mar. 4, 2014) (Barbara van Schewick Ex Parte Letter) (stating that 
“instances of blocking and discrimination in the US market for wireline broadband Internet access occurred in the 
presence of strong regulatory policies supporting network neutrality”); Alissa Cooper Comments at 3, 168 (noting 
that in the United Kingdom, notwithstanding competition between ISPs, discrimination still occurs).  But see CEA 
Comments at 2-3 (arguing that the competitive marketplace obviates the need for additional open Internet rules). 
90
Alissa Cooper Comments at 167 (“Where regulatory threat is present and internalized by ISPs, it fundamentally 
shapes traffic management, while its absence has an equally strong effect.”); Barbara van Schewick Ex Parte Letter 
at 2.
91
Barbara van Schewick Ex Parte Letter at 2 & Attach. A at 13, fig. 2  (discussing evidence of blocking and 
discrimination as noted by several sources, including the Body of European Regulators for Electronic 
Communications (BEREC), that shows the relative frequency of broadband providers reporting some level of 
restriction).  The European Parliament voted to adopt net neutrality rules in April 2014 that will now be considered 
by the 28 European Union Member States in order to become binding regulation.  To date, among European 
countries only the Netherlands and Slovenia have net neutrality regulations.  See Zack Whittaker, EU Passes Net 
Neutrality Law, Votes to End Throttling, Site Blocking, Between the Lines Blog, ZD Net (Apr. 3, 2014), 
http://www.zdnet.com/eu-net-neutrality-passes-vote-7000027998/.
92
Body of European Regulators for Electronic Communications, A View of Traffic Management and Other 
Practices Resulting in Restrictions to the Open Internet in Europe 8-9 (2012), available at 
http://apps.fcc.gov/ecfs/document/view?id=7521087926 (discussing several instances where operators gave 
preferential treatment to select over-the-top traffic).  Additionally, there is evidence that the second largest French 
ISP was automatically blocking ads in Internet traffic delivered to subscribers in January 2013. While the ISP 
ultimately removed the block following government intervention, press reports indicate that the block was motivated 
to pressure Google into compensating the ISP for the traffic generated by YouTube. Barbara van Schewick Ex 
Parte Letter s at 3; Cyrus Farivar, France’s Second Largest ISP Suspends Ad Blocking For Now (Jan. 7, 2013), 
ArsTechnica, http://arstechnica.com/business/2013/01/frances-second-largest-isp-suspends-ad-blocking-for-now/.  
Furthermore, the Voice on the Net (VON) Coalition Europe released a report identifying restrictions on Internet 
access by mobile networks based mainly on the operators’ terms and conditions. The report noted that in 2012, a 
U.K.-based mobile Internet access service provider contractually limited users from using services not affiliated 
with the ISP, including Internet-based streaming services, voice, peer-to-peer file sharing, or Internet-based video.  
VON Europe, Non-exhaustive Identification of Restrictions on Internet Access by Mobile Operators 17 (2012), 
http://www.scribd.com/doc/98641591/VON-Europe-Non-exhaustive-Indentification-of-Restrictions-on-Internet-
Access-by-Mobile-Operators.
Federal Communications Commission FCC 14-61
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Verizon’s Upper 700 MHz C-Block license.
93
  In the same year, consumers also complained when AT&T 
refused to permit Apple’s FaceTime iPhone and iPad application to use its mobile network, restricting its 
use to times when the end user was connected to Wi-Fi and thus to another broadband provider, although 
the Commission did not conclude whether such a practice violated our open Internet principles.
94
  We 
seek identification of, and comment on, actions taken by broadband providers—both domestically and 
internationally—since the adoption of the Open Internet Order that have threatened or could potentially 
threaten the Internet’s openness.  How should such incidents inform how we craft our rules on remand?
a. Economic Incentives and Ability
42. In the Open Internet Order, the Commission found that providers of broadband Internet 
access service had multiple incentives to limit Internet openness.  The Order concluded that the threat of 
broadband provider interference with Internet openness would be exacerbated by—but did not depend 
on—such providers possessing market power over potential subscribers in their choice of broadband 
provider. However, the Commission found that most residential customers have only one or two options 
for wireline broadband Internet access service, increasing the risk of market power, and found the future 
of mobile Internet access service as a competing substitute remained unclear.
95
  Moreover, the 
Commission emphasized that customers may incur significant costs in switching from one provider to 
another, thus creating “terminating monopolies” for content providers needing high-speed broadband 
service to reach end users.
96
43. The D.C. Circuit found that the Commission’s assessment of broadband providers’
incentives and economic ability to threaten Internet openness was not just supported by the record but 
also grounded in “common sense and economic reality.”
97
  It affirmed the Commission’s conclusions that 
vertically integrated broadband providers have incentives to interfere with competitive services and that 
broadband providers generally have incentives to accept fees from edge providers.
98
And the court cited 
with approval the Commission’s conclusion that a broadband provider would be unlikely to fully account 
for the harms resulting from such practices.
99
  The court also upheld the agency’s conclusion that such 
incentives could “produce widespread interference with the Internet’s openness in the absence of 
Commission action.”
100
  Finally, the court agreed that the Commission need not engage in a market power 
analysis to justify its rules, explaining that broadband providers’ ability to block or disadvantage edge 
providers depended on “end users not being fully responsive to the imposition of such restrictions,” not 
                                                     
93
News Release, Federal Communications Commission, Verizon Wireless to Pay $1.25 Million to Settle 
Investigation into Blocking of Consumers’ Access to Certain Mobile Broadband Applications (July 31, 2012), 
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-315501A1.pdf.
94
See David Kravets, AT&T Holding FaceTime Hostage is No Net-Neutrality Breach, Wired.com (Aug. 22, 2012), 
http://www.wired.com/threatlevel/2012/08/facetime-net-neutrality-flap/; see also Open Internet Advisory 
Committee, 2013 Annual Report (Aug. 20, 2013), at 39-46, http://transition.fcc.gov/cgb/oiac/oiac-2013-annual-
report.pdf (2013 OIAC Annual Report).
95
Open Internet Order, 25 FCC Rcd at 17923-24, paras. 32-33; Data Foundry et al. Comments at 1-2 (arguing that 
ISPs are able to leverage market power over transmission facilities into the logically separate Internet access 
market).
96
Open Internet Order, 25 FCC Rcd at 17924-25, para. 34.
97
Verizon, 740 F.3d at 644 (“The Commission's finding that Internet openness fosters the edge provider innovation 
that drives this ‘virtuous cycle’ was likewise reasonable and grounded in substantial evidence.”).
98
Id. at 645-46.
99
Id. at 646 (discussing “negative externalities” resulting from broadband provider behavior).
100
Id. at 649 (internal quotations omitted).
Federal Communications Commission FCC 14-61
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on “the sort of market concentration that would enable them to impose substantial price increases on end 
users.”
101
44. We seek to update the record underlying the Open Internet Order’s conclusion that 
broadband providers have incentives and the economic ability to limit Internet openness in ways that 
threaten to weaken or break the virtuous circle.  How have changes in the marketplace or technology 
since 2010 affected broadband providers incentives and economic ability to engage in such practices?  To 
what extent do broadband providers today have economic incentives and mechanisms to block or 
disadvantage a particular edge provider or class of edge providers?  To what extent do vertically
integrated providers have particularized incentives to discriminate—on price, quality, or other bases—in 
favor of affiliated products? What are broadband providers’ incentives to increase revenues by charging 
edge providers for access or prioritized access to the broadband provider’s end users?  Are there features 
of the Internet ecosystem that facilitate or impede a broadband provider’s ability to internalize the harms
caused by practices that limit openness?  Are there justifications for charging fees to edge providers that 
were not present in 2010?  We seek comment on these and other economic incentives and abilities that 
broadband providers may have to limit openness.
102
45. We generally seek comment on what economic tools broadband providers utilize to 
manage traffic on their networks.  Broadband providers may address traffic management through 
commercial terms and conditions on end users, such as pricing for different levels of throughput or 
through the use of “data caps.”  To what extent and in what ways do broadband providers use such tools 
to manage traffic, such as by excluding certain content from such an end user data cap?
103
  Might these 
tools be used to exploit market power or reduce competition? 
46. In addition, we seek comment on end users’ ability to switch providers if a particular 
broadband service does not meet their needs.  What is the extent of switching costs, and how do switching
costs affect the incentives and economic ability of providers to limit Internet openness?
104
  As discussed 
in the Open Internet Order and affirmed by the D.C. Circuit, both edge providers seeking access to end 
users and end users seeking access to edge providers are subject to the gatekeeper effect of a retail 
broadband provider.
105
  Absent multi-homing, an end user has only one option to reach a given edge 
provider’s content.
106
  To reach any given end user, an edge provider must ensure that it or its broadband
provider can reach the end user’s broadband provider.  Terms and conditions, price, or lack of other 
broadband providers, among other factors, can raise switching costs to the point where switching is 
inefficient, infeasible, or even impossible.
107
  We seek comment on these conclusions.  To what extent do 
                                                     
101
Verizon, 740 F.3d at 648.  
102
See, e.g., Public Knowledge and Common Cause Comments 4-7 (stating that data caps limit Internet openness).
103
See News Release, AT&T, AT&T Introduces Sponsored Data for Mobile Data Subscribers and Businesses (Jan. 
6, 2014), http://www.att.com/gen/press-room?pid=25183&cdvn=news&newsarticleid=37366&mapcode; 2013 
OIAC Annual Report; see also Public Knowledge & Common Cause Comments at 6-9 (arguing that, by creating a 
“special lane for affiliated content,” data caps have the potential to negatively impact the open Internet and the long 
term growth of the network).
104
See Open Internet Order, 25 FCC Rcd at 17921, para. 27; Vonage Comments at 5. 
105
Open Internet Order, 25 FCC Rcd at 17919, para 24.  But see AT&T Comments at 17 (“[A]ny broadband access 
provider that prevents innovative new content and applications from using its platform would inflict considerable 
harm on itself given that most consumers could switch to a different provider that does not engage in such self-
defeating behavior.”).
106
In this context, we use “multi-homing” to refer to a customer that subscribes to more than one Internet service 
provider, noting the subscriber may be either an end user or an edge provider.  See, e.g., Christiaan Hogendorn, 
Broadband Internet: Net Neutrality versus Open Access 15, Wesleyan University Economics Department (2007), 
http://chogendorn.web.wesleyan.edu/oa.pdf.
107
Open Internet Order, 25 FCC Rcd at 17921, para 27.
Federal Communications Commission FCC 14-61
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consumers face significant switching costs in choosing to change broadband access providers?  Which 
services, if any, are most vulnerable to a broadband provider’s market power because of the inability to 
effectively reach subscribers through other means?  To the extent that such switching costs exist, to what 
extent, if any, are they exacerbated by additional factors, such as the difficulty consumers may have in 
effectively monitoring the extent to which edge providers have difficulty reaching them, the number of 
effective substitutes a consumer may have among broadband providers, or the impact of bundled pricing 
and switching costs attached to the purchase or use of bundled services, such as a combined offering of 
broadband access along with video services and voice telephony?  Would all likely alternatives have 
similar incentives to limit openness, possibly for a different set of services?  We also seek comment on an 
end user’s ability to switch broadband providers in response to specific broadband provider practice, for 
example a broadband provider’s decision to charge an edge provider to reach the customer.  Are 
switching costs relevant to an edge provider’s interaction with a broadband provider and, if so, how?
Finally, what are the implications when consumers have no ability to switch providers because there is 
only one provider offering service to the consumer’s location?
47. We also seek comment on the state of competition in broadband Internet access service, 
and its effect on providers’ incentives to limit openness. We seek comment on the appropriate view of 
whether broadband services with substantially different technical characteristics are competitive 
substitutes. For example, how should we regard the ability of DSL service with speeds of, for example,
3 Mbps downstream and 768 kbps upstream to constrain conduct by a provider of high-speed broadband 
with speeds of, for example, 25 Mbps downstream and 3 Mbps upstream (or higher)?  How should we 
regard the geography of broadband competition? From an end user’s point of view, do national practices 
or market shares have any impact on edge providers, without regard to the definition of a geographic 
market?
48. In the fixed broadband context, we have seen evidence of limited choice between 
broadband providers in many areas of the country. As the speed threshold increases to 6 Mbps 
downstream and 1.5 Mbps upstream, the number of households that are located in census tracts with at 
least three providers that report serving customers at those higher speeds dips down to a mere 
34 percent.
108
  In many areas of the country, with respect to fixed Internet access, consumers may have 
only limited options, i.e., one or two fixed providers available.
109
We seek comment on the extent to 
which commercial practices differ in places where consumers have only one choice of a wireline 
broadband provider, two choices, or more than two choices.  We therefore also seek comment as to 
whether increased spectrum availability and technological developments in the mobile broadband 
marketplace, e.g., growth in 4G/ LTE availability, would affect the market power of fixed broadband 
providers.
110
  
49. We further seek general comment on our approach towards analyzing broadband provider 
incentives. Under the Commission’s reading, which the court upheld, our section 706 authority is not 
                                                     
108
Industry Analysis and Technology Division, Federal Communications Commission, Internet Access Services: 
Status as of December 31, 2012 62, Map 4 (2013), http://transition.fcc.gov/Daily_Releases/Daily_Business/
2013/db1224/DOC-324884A1.pdf (Internet Access Services Report).  The map shows the number of providers of 
fixed connections by census tract but does not necessarily reflect the number of choices available to a particular 
household nor does it measure competition.  
109
NTIA and Federal Communications Commission, National Broadband Map, www.broadbandmap.gov (last 
visited Apr. 8, 2014).  
110
Within the mobile sector, providers are in the process of deploying 4G/LTE networks.  LTE subscribers have 
grown from 215,000 at year end 2010 to almost 100 million by 2013.  LTE subscribers in the U.S. are expected to 
grow to almost 200 million by year end 2016.  The number of 4G-connected LTE devices in the U.S. market 
increased 158% since 2012.  Sixteenth Annual Report and Analysis of Competitive Market Conditions With Respect 
to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 11-186, Report, 28 FCC Rcd 3700, 
3857, para. 248 (2013). 
Federal Communications Commission FCC 14-61
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predicated on a finding of market power, specifically, that broadband providers need not be found to be
“benefiting from the sort of market concentration that would enable them to impose substantial price 
increases on end users.”
111
   Nor do we believe that the open Internet concerns described above solely 
arise in markets where broadband providers possess market power over subscriber prices.  We recognize, 
however, that the presence or absence of market power—over broadband subscriptions, over end users 
once they have chosen a broadband provider, and over content providers who wish to reach those end 
users—may inform an understanding of a broadband provider’s behavior in the Internet marketplace and 
its incentives to engage in practices that limit Internet openness.  Thus, we seek comment on whether the 
Commission should engage in a market power analysis with respect to broadband providers and, if so, 
how we should go about that analysis.   
50. We further seek comment on whether there are other economic theories that the 
Commission should consider to better understand and assess broadband providers’ incentives to engage in 
practices that affect the Internet’s openness.  For example, do broadband providers have an incentive to 
extract rents from upstream services whose price significantly exceeds the marginal cost of delivering 
those services to an additional customer? Are there positive network effects from widespread adoption of 
broadband services by consumers that we should recognize?
112
Do edge providers that incur significant 
sunk costs in the delivery of their output face “lock-in” problems if they become dependent on a 
particular pathway to their current or potential users?  In the absence of open Internet protections, would 
those edge providers face uncertainty that would hamper their ability to attract capital? Does the trend 
towards the caching of content closer to end users either increase such lock-in problems or, separately, 
limit the number of pathways by which an edge provider’s output can effectively reach current or 
potential end users? We seek comment on whether and how other theories and new evidence may
supplement or supplant the original Open Internet Order analysis. 
b. Technical Ability
51. The Open Internet Order likewise found that broadband providers have the technical 
ability to limit Internet openness.  As the Order explained, increasingly sophisticated network 
management tools enable providers to identify and differentiate the treatment of traffic on their own 
broadband Internet access service networks.
113
The D.C. Circuit agreed, finding “little dispute that 
broadband providers have the technological ability to distinguish between and discriminate against certain 
types of Internet traffic.”
114
We seek comment on this general conclusion and on how this ability to 
impose restrictions on edge providers and end users has increased or decreased with further developments 
in technology or business practices since the Open Internet Order. We also seek comment on provider 
abilities that were not identified in the Open Internet Order or elsewhere in this Notice, including 
                                                     
111
Verizon, 740 F.3d at 648.
112
One such model is “Metcalfe’s law” a rough empirical description of the value of a communications network, 
where n is the number of users in a network, the total value of the network is equivalent to n(n-1) or roughly n
2 
when 
n is large.  Carl Shapiro, Information Rules: A Strategic Guide to the Network Economy 184 (1999). The precise 
equation has been called into question, see Bob Briscoe et al., Metcalfe’s Law is Wrong, IEEE Spectrum 26-31 
(2006) (proposing a valuation equation of n log(n)), and we do not rely on the precise mathematical formulation of 
the effects that it predicts.
113
Open Internet Order, 25 FCC Rcd at 17923, para. 31. We recognize that broadband providers also have the 
ability to impact traffic and congestion in ways that go beyond the management of traffic within their networks.  In 
particular, we understand that broadband providers also manage traffic in the context of their relationships with 
other autonomous networks.  For example, traffic and congestion may be affected by interconnection arrangements 
for the exchange of Internet traffic between two networks as well as CDN-type arrangements in which third parties 
place equipment in or adjacent to the providers’ network.  As discussed in section III.B, the rules we propose today 
reflect the scope of the 2010 Open Internet Order, which applied to broadband provider conduct within its own 
network. 
114
Verizon, 740 F.3d at 646.  
Federal Communications Commission FCC 14-61
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identifying the particular ability and its relevance to this proceeding.  For example, one commenter has 
expressed concern about broadband providers offering prioritized service in a manner that may harm rural 
or minority end users.
115
Is it technically feasible for a broadband provider to block or degrade based on 
the location or neighborhood of the end user?  Is it likely that it would do so?  If so, how should our rules 
address this concern?
52. We seek comment on broadband providers’ ability to limit Internet openness through 
management of traffic on their own networks and limitations imposed on their end users.  Providers 
generally have the ability to manage traffic and congestion on their own networks and have developed a 
number of techniques to do so.
116
For example, a provider can use technical methods like packet 
classification, admission control and resource reservation, rate control and traffic shaping, as well as 
packet dropping and packet scheduling to identify and manage traffic on its network.
117
Such techniques 
may provide additional ability to discriminate in a way that is largely opaque to edge providers and end 
users.
118
We seek comment on the technical tools broadband providers can and do use to manage traffic 
on their networks. 
53. The Open Internet Order found that providers had in fact used their ability to limit 
openness, citing several instances where broadband providers had been subject to Commission 
enforcement proceedings for violating open Internet norms.
119
   In the Order, the Commission cited the 
Madison River case, the Comcast-BitTorrent case, as well as various mobile wireless Internet providers’ 
refusal to allow customers to use competitive payment applications, competitive voice applications, and 
remote video applications.
120
  The Commission also noted other allegations of blocking or degrading 
peer-to-peer traffic, but did not determine whether those specific practices violated open Internet 
principles.
121
  The D.C. Circuit noted these examples along with the Commission’s as persuasive 
justification for adopting open Internet rules.
122
  
                                                     
115
See Letter from Harold Feld, Senior Vice President, Public Knowledge, to Marlene H. Dortch, Secretary, Federal 
Communications Commission, GN Docket No. 14-28, at 4-5 (filed May 2, 2014).
116
Broadband Internet Technical Advisory Group Technical Working Group, Real time Network Management of 
Internet Congestion (2013), http://www.bitag.org/documents/BITAG_-_Congestion_Management_Report.pdf 
(BITAG Network Management Report).   In addition to technical tools described here, as described above, 
broadband providers can also employ economic tools to discriminate with respect to traffic on their networks.  See 
supra Section III.A.2.
117
See BITAG Network Management Report at 20-28.  In mobile broadband networks, service providers using 
Voice over LTE (VoLTE) technology may use the quality of service (QoS) feature of the IP multimedia subsystem 
(IMS) to deliver VoLTE traffic with higher priority than other types of traffic sharing the same LTE channel.  
Indeed, one essential requirement for high quality VoLTE deployment is ensuring the delivery of low latency voice 
traffic within the provider’s LTE network, which would require traffic discrimination using the QoS feature of the 
IMS.  See Lennart Norell, Eric Parsons, & Per Synnergren, Telephony Services Over LTE End-to-End 36, Ericsson 
Review (2010), http://www.ericsson.com/res/thecompany/docs/publications/ericsson_review/2010/lte_e2e.pdf; 
Spirent White Paper, VoLTE Deployment and the Radio Access Network The LTE User Equipment Perspective 3-5 
(Aug. 2012), http://www.spirent.com/~/media/White%20Papers/Mobile/VoLTE_Deployment_and_the_Radio_
Access_Network.pdf.
118
We note that other forms of discrimination in the Internet ecosystem may exist, but such conduct is beyond the 
scope of this proceeding. See AAF Comments at 2 (suggesting that edge providers may have the incentive and 
ability to engage in discriminatory conduct).
119
Open Internet Order, 25 FCC Rcd at 17925-27, paras. 35-37.
120
Id. at 17925, para 35 & n.107.
121
Id. at 17926, para. 36.
122
Verizon, 740 F.3d at 648-49 (“[T]hese incidents . . . buttressed the agency’s conclusion that broadband providers’ 
incentives and ability to restrict Internet traffic could produce ‘[w]idespread interference with the Internet’s 
(continued…)
Federal Communications Commission FCC 14-61
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B. Scope of the Rules
54. The rules adopted in the Open Internet Order applied to “broadband Internet access 
service,” which was defined as: 
A mass-market retail service by wire or radio that provides the capability to transmit data 
to and receive data from all or substantially all Internet endpoints, including any 
capabilities that are incidental to and enable the operation of the communications service,
but excluding dial-up Internet access service.  This term also encompasses any service 
that the Commission finds to be providing a functional equivalent of the service 
described in the previous sentence, or that is used to evade the protections set forth in this 
Part.
123
The Order defined “mass market” to mean a service marketed and sold on a standardized basis to 
residential customers, small businesses, and other end-user customers such as schools and libraries, 
including services purchased with support of the E-rate program.
124
  
55. The Verizon decision upheld the Commission’s regulation of broadband Internet access 
service pursuant to section 706 and did not disturb this aspect of the Open Internet Order.  Thus, the 
definition of “broadband Internet access service” remains a part of the Commission’s regulations.  We 
tentatively conclude that we should retain this definition without modification.  We seek comment on that 
conclusion.  The court in Verizon also stated that, apart from the service provided to end users, 
“broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge 
providers’ ‘carriers.’”
125
  We seek comment on whether this should be identified as a separate service and, 
if so, how we should define that service and what the regulatory consequences are, if any, of that 
definition.
56. We also seek comment on the following issues that arise in connection with the scope of 
the application of the rules we propose today.  
57. Specifically Identified Services.  The Open Internet Order excluded certain categories of 
services from the definition of broadband Internet access service, such as dial-up Internet access service
126
and multichannel video programming, the latter of which the Commission understood not to meet the 
definition of “provid[ing] the capability to transmit data to and receive data from all or substantially all 
Internet endpoints.”
127
  We tentatively conclude that we would maintain this approach, but seek comment 
on whether we should change this conclusion.
58. Enterprise Services.  The Open Internet Order excluded enterprise service offerings, 
which are typically offered to larger organizations through customized or individually negotiated 
arrangements.
128
Similarly, the Open Internet Order excluded virtual private network services, hosting,
or data storage services. The Commission explained that such services “typically are not mass market 
services and/or do not provide the capability to transmit data to and receive data from all or substantially 
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openness’ in the absence of Commission action. Such a ‘problem’ is doubtless ‘industry-wide.’”) (internal citations 
omitted).
123
47 C.F.R. § 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding that the 
market and regulatory landscape for dial-up Internet access service differed from broadband Internet access service).
124
Open Internet Order, 25 FCC Rcd at 17932, para. 45.
125
Verizon, 740 F.3d at 653.
126
47 C.F.R. § 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44.
127
Open Internet Order, 25 FCC Rcd at 17933, para. 47.
128
Id. at 17932, para. 45.
Federal Communications Commission FCC 14-61
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all Internet endpoints.”
129
The Open Internet Order also established that the rules did not apply to:  
(1) edge provider activities, such as the provision of content on the Internet;
130
and (2) premise operators, 
entities like coffee shops or bookstores, which offer Internet access services to their patrons.
131
We 
tentatively conclude that we would maintain this approach, but seek comment on whether we should 
change this conclusion. 
59. Internet Traffic Exchange.  The Open Internet Order explained that its rules did not apply 
beyond “the limits of a broadband provider’s control over the transmission of data to or from its 
broadband customers.”
132
  In other words, the Order applied to a broadband provider’s use of its own 
network but did not apply the no-blocking or unreasonable discrimination rules to the exchange of traffic 
between networks, whether peering, paid peering, content delivery network (CDN) connection, or any 
other form of inter-network transmission of data, as well as provider-owned facilities that are dedicated 
solely to such interconnection. Thus, the Order noted that the rules were not intended “to affect existing 
arrangements for network interconnection, including existing paid peering arrangements.”
133
  We 
tentatively conclude that we should maintain this approach, but seek comment on whether we should 
change our conclusion.  Some commenters have suggested that we should expand the scope of the open 
Internet rules to cover issues related to traffic exchange.
134
  We seek comment on these suggestions.  For 
example, how can we ensure that a broadband provider would not be able to evade our open Internet rules 
by engaging in traffic exchange practices that would be outside the scope of the rules as proposed?
60. Specialized Services.  In the Open Internet Order, the Commission recognized that 
broadband providers may offer “specialized services” over the same last-mile connections used to provide 
broadband service.  The Commission stated that these services can benefit end users and spur investment, 
but also noted the potential for specialized services to jeopardize the open Internet.
135
  Due to these 
concerns, the Commission stated that it would monitor these services, but that its rules would “not 
prevent broadband providers from offering specialized services such as facilities-based VoIP.”
136
  We 
tentatively conclude that we should maintain this approach and continue to closely monitor the 
development of specialized services to ensure that broadband providers are not using them to bypass the 
open Internet rules or otherwise undermine a free and open Internet.  We seek comment on this tentative 
conclusion.  How can we ensure that the specialized services exception is not used to circumvent our open 
Internet rules?  In addition, should specialized services be addressed within the scope of the 
“commercially reasonable” rule either as a safe harbor or among the factors for consideration?
137
Should 
the Commission define “specialized services”?
138
                                                     
129
We also note that our rules apply only as far as the limits of a broadband provider’s control over the transmission 
of data to or from its broadband customers.
130
Open Internet Order, 25 FCC Rcd at 17934-35, para. 50.
131
Id. at 17935-36, para. 52.
132
Id. at 17933, para. 47 n.150.
133
Id. at 17944, para. 67 n.209.
134
See, e.g., Level 3 Comments at 11-13; Cogent Comments at 31-33.
135
Open Internet Order, 25 FCC Rcd at 17909, 17965-66, paras. 7, 112-14.
136
Id. at 17922-23, 17965-66, paras. 39, 112-14.
137
See infra para. 139.
138
The Open Internet Order did not formally define “specialized services,” but described them as “services that 
share capacity with broadband Internet access service over providers’ last-mile facilities.”  Open Internet Order, 
25 FCC Rcd at 17965, para. 112; cf. 2013 OIAC Annual Report at 66-81 (identifying difficulties with defining 
“specialized services”).  By contrast, the net neutrality rules that the European Parliament voted to adopt in April 
2014 included a specific definition for “specialized services” as  “an electronic communications service optimised 
(continued…)
Federal Communications Commission FCC 14-61
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61. Reasonable Network Management. Although the Open Internet Order’s definition of 
broadband Internet access service did not itself address reasonable network management, the concept was 
incorporated into each of the 2010 rules. Specifically, the transparency rule “does not require public 
disclosure of competitively sensitive information or information that would compromise network security 
or undermine the efficacy of reasonable network management practices.”
139
  The 2010 no-blocking rule
was made expressly subject to “reasonable network management.”
140
  And the unreasonable 
discrimination rule expressly provided for reasonable network management, which was defined as 
follows: “A network management practice is reasonable if it is appropriate and tailored to achieving a 
legitimate network management purpose, taking into account the particular network architecture and 
technology of the broadband Internet access service.”
141
The Commission further concluded that it would 
“develop the scope of reasonable network management on a case-by-case basis.”
142
We tentatively 
conclude that we should continue the same approach. We seek comment on this conclusion as applied to 
an enhanced transparency rule, our re-adoption of the no-blocking rule, and the proposal to adopt a 
“commercially reasonable” standard.  How can we ensure that the ability of providers to engage in 
reasonable network management is not used to circumvent the open Internet protections implemented by 
our proposed rules?
62. Mobile Services. The Open Internet Order also adopted definitions for “fixed” and 
“mobile” Internet access service.  It defined “fixed broadband Internet access service” to expressly 
include “broadband Internet access service that serves end users primarily at fixed endpoints using 
stationary equipment, . . . fixed wireless services (including fixed unlicensed wireless services), and fixed 
satellite services.”
143
It defined “mobile broadband Internet access service” as “a broadband Internet 
access service that serves end users primarily using mobile stations.”
144
The impact of this distinction 
varied by rule. The transparency rule applies equally to both fixed and mobile broadband Internet access 
service. The no-blocking rule applied a different standard to mobile broadband Internet access 
services,
145
and mobile Internet access service was excluded from the unreasonable discrimination rule. 
We tentatively conclude that we should maintain the same approach in today’s Notice. We seek comment 
on this approach, which is discussed in more detail in the context of each of the proposed rules below.  
We recognize that there have been significant changes since 2010 in the mobile marketplace, including 
how mobile providers manage their networks, the increased use of Wi-Fi, and the increased use of mobile 
devices and applications.  We seek comment on whether and, if so, how these changes should lead us to 
revisit our treatment of mobile broadband service.  Specifically, we seek comment below on whether the 
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for specific content, applications or services, or a combination thereof, provided over logically distinct capacity, 
relying on strict admission control, offering functionality requiring enhanced quality from end to end, and that is not 
marketed or usable as a substitute for internet access service.”  Proposal for a Regulation of the European Single 
Market for Electronic Communications, at 242, COM (2013) 627 final (Mar. 26, 2014), 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+AMD+A7-2014-0190+237-
244+DOC+PDF+V0//EN; David Meyer, European Parliament Passes Strong Net Neutrality Law, Along with Major 
Roaming Reforms, Gigaom.com (Apr. 3, 2014), https://gigaom.com/2014/04/03/european-parliament-passes-strong-
net-neutrality-law-along-with-major-roaming-reforms/.
139
Open Internet Order, 25 FCC Rcd at 17937-38, para. 55.
140
47 C.F.R. § 8.5.
141
Open Internet Order, 25 FCC Rcd at 17952, para. 82; 47 C.F.R. § 8.11(d).
142
Open Internet Order, 25 FCC Rcd at 17952, para. 83.
143
47 C.F.R. § 8.11(b).
144
47 C.F.R. § 8.11 (c).
145
Open Internet Order, 25 FCC Rcd at 17959-61, paras. 99-103.
Federal Communications Commission FCC 14-61
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no-blocking rule should continue to distinguish between fixed and mobile broadband
146
and whether, 
under the commercially reasonable rule, mobile networks should be subject to the same totality-of-the-
circumstances test as fixed broadband.
147
  In addition, how should the definitions of “fixed” and “mobile” 
services be applied to a fixed broadband provider’s commercially deployed Wi-Fi service that is made 
available to the provider’s fixed broadband customers? How should such changes affect our treatment of 
reasonable network management for mobile providers?  Similarly, how should we treat mobile services 
that are deployed and/or marketed as express substitutes for traditional telecommunications or broadband 
services?  Finally, have there been changes in technology or the marketplace for the provision of satellite 
broadband Internet access service that should lead the Commission to reassess how its rules should apply 
to such services?
C. Transparency Requirements to Protect and Promote Internet Openness
1. The 2010 Transparency Rule
63. In the Open Internet Order, the Commission concluded that effective disclosure of 
broadband providers’ network management practices, performance, and commercial terms of service 
promotes competition, innovation, investment, end-user choice, and broadband adoption.
148
  To that end, 
the Commission adopted the following transparency rule:
A person engaged in the provision of broadband Internet access service shall publicly 
disclose accurate information regarding the network management practices, performance, 
and commercial terms of its broadband Internet access services sufficient for consumers 
to make informed choices regarding the use of such services and for content, application, 
service, and device providers to develop, market, and maintain Internet offerings.
149
64. The Commission determined that the best approach to implementing the transparency 
rule was to allow broadband providers flexibility, while providing guidance concerning effective 
disclosure.
150
The Commission stated that “effective disclosures will likely include” information 
concerning “some or all” of the following topics: (1) network practices, including congestion 
management, application-specific behavior, device attachment rules, and security measures; 
(2) performance characteristics, including a general description of system performance (such as speed and 
latency) and the effects of specialized services on available capacity; and (3) commercial terms, including 
pricing, privacy policies, and redress options.
151
In 2011, the Commission’s Enforcement Bureau and 
Office of General Counsel issued advisory guidance to further clarify compliance with the transparency 
requirements regarding point-of-sale disclosures, service descriptions, security measures, and the extent 
                                                     
146
See infra Section III.D.4.
147
See infra Section III.E.4.
148
Open Internet Order, 25 FCC Rcd at 17936, para. 53.
149
Id. at 17937, para. 54.
150
Id. at 17938-40, paras. 55-57.  In so doing, the Commission stated that broadband providers must, at a minimum, 
prominently display or provide links to disclosures on a publicly available, easily accessible website that is available 
to current and prospective end users and edge providers as well as the Commission, and must disclose relevant 
information at the point of sale.  Id. In addition, the Commission clarified that the transparency rule did not require 
public disclosure of competitively sensitive information or information that would compromise network security or 
undermine the efficacy of reasonable network management practices. Id.
151
Id. at 17938-39, para. 56 (noting that this list is not necessarily exhaustive). 
Federal Communications Commission FCC 14-61
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of required disclosures, while noting that “these particular methods of compliance are not required or 
exclusive; broadband providers may comply with the transparency rule in other ways.”
152
  
65. The D.C. Circuit’s decision in Verizon v. FCC upheld the transparency rule, which 
remains in full force, applicable to both fixed and mobile providers.
153
In today’s Notice, we inquire as to 
ways that the transparency rule can be improved, taking into account changes in the nature of the 
provision of broadband services since 2010. We believe we have ample authority not only for our 
existing transparency rule, but also for the enhanced transparency rule we propose today, whether the 
Commission ultimately relies on section 706, Title II, or another source of legal authority.  We seek 
comment on whether and how—if at all—the source of the Commission’s legal authority relied upon to 
adopt other open Internet rules would affect the authority or authorities that provide the strongest basis for 
any improvements to the transparency rule or otherwise would inform how we define the goal of 
transparency in general.
154
    
2. Enhancing Transparency to Protect and Promote Internet Openness
66. “Sunlight,” as Justice Brandeis has explained, “is . . . the best of disinfectants.”
155
  If 
designed correctly, disclosure policies are among the most effective and least intrusive regulatory 
measures at the Commission’s disposal.
156
Applied here, the Commission continues to believe that access 
to accurate information about broadband provider practices encourages the competition, innovation, and 
high-quality services that drive consumer demand and broadband investment and deployment.
157
The 
transparency rule thereby reflects the “virtuous circle” that, in the long term, unites the interests of end 
                                                     
152
See FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with 
Open Internet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Public Notice, 26 FCC 9411 
(2011) (Transparency Compliance PN). 
153
Verizon, 740 F.3d at 659 (affirming the transparency rule).
154
See infra Section III.F.
155
L. Brandeis, Other People’s Money, Chapter 5 (National Home Library Foundation ed. 1933), available at
http://www.law.louisville.edu/library/collections/brandeis/node/196.
156
See, e.g., Howard Beales, Richard Craswell & Steven C. Salop, The Efficient Regulation of Consumer 
Information, 24 J. L. & Econ. 491 at 513 (1981); Howard Beales, Richard Craswell & Steven C. Salop, Information 
Remedies for Consumer Protection, 71 Am. Econ. Rev. 410 at 411 (Papers & Proceedings, May 1981); Alissa 
Cooper, How Regulation and Competition Influence Discrimination in Broadband Traffic Management:  A 
Comparative Study of Net Neutrality in the United States and United Kingdom 47 (Sept. 2013), 
http://www.alissacooper.com/phd-thesis/ (“A policy of requiring ISPs to publicly disclose the details of their traffic 
management practices, whether combined with additional regulation or not, has enjoyed widespread support.”)
(Cooper Thesis); see also Letter from Kathleen Grillo, Senior Vice President, Federal Regulatory Affairs, Verizon, 
to Marlene H. Dortch, Secretary, Federal Communications Commission, GN Docket Nos. 12-269, 14-28, at 1 (filed 
Mar. 24, 2014) (arguing that “the Commission should rely primarily on consumer choice, competition, and 
transparency to guide Commission policy”) (emphasis added).
157
See, e.g., Organization for Economic Co-operation and Development, Enhancing Competition in 
Telecommunications: Protecting and Empowering Consumers 4, Directorate for Science, Technology and Industry, 
Committee for Information, Computer and Communications Policy (2008),  
http://www.oecd.org/dataoecd/25/2/40679279.pdf (stating that informed consumers “are necessary to stimulate 
firms to innovate, improve quality and compete in terms of price.  In making well-informed choices between 
suppliers, consumers not only benefit from competition, but they initiate and sustain it.”); see also Open MIC 
Comments at 4 (asserting that “the marketplace will function properly only if there is honest and full disclosure of 
all corporate policies and practices regarding network management practices”); CompTIA Comments at 3 (stating 
that “the transparency rule is vitally important today, and will play an even more significant role in a world in which 
ISPs and edge providers have flexibility to bargain with one another”); Consumer Federation of America Comments 
at 3 (suggesting that the Commission “maximize the power of transparency under Section 706 to promote 
competition and provide consumer protection”).
Federal Communications Commission FCC 14-61
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users, edge providers, and the broader Internet community.  As the Commission explained in the Open 
Internet Order, disclosures under the rule:  (1) help end users make informed choices regarding the 
purchase and use of broadband services and increase end users’ confidence in broadband providers’ 
practices; (2) ensure that edge providers have access to broadband providers’ network information 
necessary to develop innovative new applications and services; and (3) inform the Internet community 
and the Commission about broadband providers’ practices and conduct that could impact Internet 
openness.
158
In today’s Notice, we seek comment on the effectiveness of the existing transparency rule 
and on whether and, if so, how the rule should be enhanced to meet its goals with respect to end users, 
edge providers, the Internet community, and the Commission.   
67. Today, we seek general comment on how well the Commission’s existing transparency 
rule is working.  We are especially interested in comments that describe the current operation, benefits,
and shortcomings of the existing rule, how broadband providers are complying with it, and how we 
should measure such compliance.
159
  We are also mindful that the additional rules we propose today to 
protect Internet openness consistent with the D.C. Circuit’s decision may place even greater importance 
on the extent to which information about broadband providers’ practices is disclosed to end users, edge 
providers, and the Commission.  Taking all of that into account, we tentatively conclude that we should 
enhance the transparency rule to improve its effectiveness for end users, edge providers, the Internet 
community, and the Commission.  We seek comment on this tentative conclusion and on what burdens or 
compliance issues may be associated with this approach, including for smaller providers.  
68. Tailored disclosures.  In the Open Internet Order, the Commission stated that broadband 
providers may be able to satisfy the transparency rule through use of a single disclosure, and therefore did 
not require different types of disclosures to different parties such as individual end users, edge providers, 
the broader Internet community, and the Commission.
160
  We have concerns that a single disclosure may 
not provide the required disclosures in a manner that adequately satisfies the informational needs of all 
affected parties.  For example, some recent research suggests that consumers have difficulty 
understanding commonly used terms associated with the provision of broadband services.
161
  Edge 
providers, however, may benefit from descriptions that are more technically detailed.
162
  We therefore 
tentatively conclude that it would be more effective to require broadband providers to more specifically 
tailor disclosures to the needs of these affected parties.  We seek comment on this tentative conclusion, on 
the nature of the disclosures that should be tailored, and on what burdens or compliance issues, if any, 
may be associated with more targeted disclosures.  
a. Transparency to End Users
69. Since the Commission adopted the transparency rule, we have received hundreds of 
complaints from consumers suggesting that, under the rule, broadband providers may not be providing
end user consumers the accurate information they need and have a right to receive.
163
  Of particular 
                                                     
158
Open Internet Order, 25 FCC Rcd at 17936-37, para. 53. 
159
We note that an informal review of broadband provider disclosures conducted by Commission staff found that 
the majority are providing some form of disclosure statements, but that many do not appear to provide all the 
information the rule was designed to disclose.  
160
Open Internet Order, 25 FCC Rcd at 17940, para. 58. 
161
Cooper Thesis at 186-88 (citing a study which found that consumers do not understand basic terminology such as 
“traffic management”); see also 2013 OIAC Annual Report at 82-88 (noting studies that indicate consumers are 
confused when choosing service providers).
162
See, e.g., Cogent Comments at 17 (asserting that “the information provided to date by many broadband providers 
has been of limited or no utility to end users or edge providers”).
163
Our analysis of consumer complaints received since the transparency rule took effect shows a significant number 
of consumer complaints about provider speeds, charges, and other commercial practices that the rule was designed 
(continued…)
Federal Communications Commission FCC 14-61
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concern to many consumers is that the speed of their service falls short of the advertised speed.
164
Many 
consumers complain that they have been charged amounts greater than advertised rates, including fees 
and charges beyond basic rates.
165
  We have also received a number of consumer complaints raising 
questions about the source of slow or congested services.
166
  Consumers have also reported surprise at 
broadband providers’ statements about slowed or terminated service based on consumers’ “excessive 
use.”  Other consumers report confusion about how data consumption is calculated for purposes of data 
caps.
167
  
70. We seek comment on the extent to which the existing transparency rule is effectively 
informing end users.  We are interested both in what information broadband providers are disclosing to 
end users and how that information is being disclosed.  In addition, we seek comment on the incentives 
and ability of broadband providers to provide service at lower quality or higher prices than their 
subscribers expected when they enrolled, and on the incentives and ability of subscribers to choose other 
options if their broadband providers fail to live up to these expectations.  If a subscriber is locked in to a 
particular provider, how can transparency rules bring the performance of that provider up to the 
subscriber’s expectations?
71. In light of the consumer complaints discussed above, we also consider enhancements to 
the existing rule with respect to the content, form, and method of broadband providers’ disclosures to end 
users.  
72. Content and Form of Disclosure.  We seek comment on whether there are ways to make 
the content and format of disclosures more accessible and understandable to end users.  With respect to 
content, should the Commission require the disclosure of specific broadband provider network practices, 
performance characteristics (e.g., effective download speeds, upload speeds, latency, and packet loss),
and/or terms and conditions of service to end users (e.g., data caps)?  We are particularly interested in 
whether there are network practices, performance characteristics, or commercial terms relating to 
broadband service that are particularly essential but not easily discoverable by end users absent effective 
disclosure.  With respect to format, both academic research and the Commission’s experience with 
consumer issues have demonstrated that the manner in which providers display information to consumers 
can have as much impact on consumer decisions as the information itself.
168
  We therefore seek comment 
(Continued from previous page)                                                            
to disclose.  Excerpts from some of those complaints are included below.  In some cases, however, it is difficult to 
discern whether the consumer’s frustration is with slow speeds or high prices generally, or instead with how the 
service as actually provided differs from what the provider has advertised.
164
For example, one consumer stated that he “was promised 50Mbps of Internet speed.  At no time during [his] 
service [had he] ever had this speed of service and the deceptive claim remains on [the provider’s] website and in 
marketing materials.”
165
One consumer complained that actual bill is “almost 20%” higher than advertised price due to fees.
166
For example, one consumer stated that “I was sold Internet access, but I believe bandwidth through to Netflix is 
being artificially restricted.  I have checked access to other providers and it is greater than 10X that of Netflix.  
I have contacted Netflix to verify their function.  Their equipment is functioning properly.”  
167
One consumer complained that the vendor stated the file size as 2.1 megabytes (MB), but the provider counted 
download as 144 MB.
168
See generally James M. Lacko & Janis K. Pappalardo, Improving Consumer Mortgage Disclosures: An 
Empirical Assessment of Current and Prototype Disclosure Forms, FTC Bureau of Economics Report (June 2007), 
http://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf (stating that quantitative consumer testing 
shows that the form of mortgage cost disclosure affects consumer understanding of mortgage costs); Sumit Agarwal, 
John C. Driscoll, Xavier Gabaix & David Laibson, Learning in the Credit Card Market (Feb. 8, 2008) 
http://scholar.harvard.edu/files/laibson/files/learning_credit_042413.pdf (stating that consumer knowledge about 
credit card fee plans, including how to avoid late fees, depreciates rapidly over time); see also Eugenio J. Miravete, 
(continued…)
Federal Communications Commission FCC 14-61
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on best practices for displaying and formatting relevant disclosures for end users, including any potential 
costs and burdens to broadband providers.
169
  For example, the Open Internet Advisory Committee 
(OIAC) has proposed the use of a standardized label for Internet service that includes basic information 
such as performance speed (i.e., upload and download speed), price (i.e., monthly fee averaged over three 
years), and usage restrictions (i.e., any points at which the applicable terms of service change, including 
data usage caps and any charges, speed reductions, or other penalties for exceeding a cap) that consumers 
can use to comparison shop for service.
170
  Are there lessons we can learn regarding effective disclosure 
practices from independent consumer research or disclosure in other approaches to standardized labels?
171
  
Should the information be made available in a machine-readable format, such as XML, that might allow 
the Commission, industry associations, or other organizations to easily access and synthesize information 
for consumers?
73. Network Practices. With respect to data caps, should we require disclosures that permit 
end users to identify application-specific usage or to distinguish which user or device contributed to 
which part of the total data usage?  Should we require disclosure of any type of traffic exempted from any 
data caps, and how end users can find their current consumption levels?  Should we require that 
disclosures explain any restrictions on tethering for mobile devices?  Should the Commission expand its 
transparency efforts to include measurement of other aspects of service such as packet loss, packet 
corruption, latency, and jitter in addition to upstream and downstream speed?  Should the Commission 
require the reporting of actual achieved results for each category?  If providers offer different tiers of 
service to their end users, should providers be required to make disclosures by tier?  What should be the 
required timing of any such disclosures?  Is it important that network practices be disclosed in advance of 
their implementation?
74. Method of Disclosure.  The Transparency Compliance PN advised broadband providers 
that they can comply with the point-of-sale disclosure requirement by, for instance, “directing prospective 
customers at the point of sale, orally and/or prominently in writing, to a web address at which the required 
disclosures are clearly posted and updated.”
172
  We seek comment on whether that approach is adequate 
or whether the Commission should consider alternative approaches.    
(Continued from previous page)                                                            
Choosing the Wrong Calling Plan? Ignorance and Learning, 93 Am. Econ. Rev. 297 (2003) (stating that consumers 
select rationally among telephone calling plans).
169
In 2011, the United Kingdom’s largest Internet service providers agreed to a voluntary Code of Practice which 
requires each one to produce a comparable table of traffic management information called a Key Facts Indicator 
(KFI).  See, e.g., Ofcom, Improving Traffic Management Transparency, 
http://consumers.ofcom.org.uk/2011/11/improving-traffic-management-transparency/ (last visited May 12, 2014).
170
See 2013 OIAC Annual Report at 82-88 (containing information about the OIAC Label Study); see also New 
America Foundation, Broadband Truth-in-Labeling, Open Technology Initiative (2009), 
http://newamerica.net/sites/newamerica.net/files/policydocs/NAF_OTI_Broadband_Truth_in_Labeling-09-
2009.pdf.
171
For example, the Federal Trade Commission’s Energy Guide labeling program requires standard labels on certain 
appliances that disclose estimated yearly operating cost and energy use.  See 16 C.F.R. Part 305.  The Federal Food, 
Drug, and Cosmetic Act (FD&C Act) and the Fair Packaging and Labeling Act are the federal laws governing food 
products under the Food and Drug Administration’s jurisdiction.  See 21 U.S.C. §§ 301-399; 15 U.S.C. §§ 1451-
1461.  The FD&C Act was amended by the Nutrition Labeling and Education Act of 1990, which requires most 
foods to bear nutrition labeling and requires food labels that bear nutrient content claims and certain health messages 
to comply with specific requirements.  See 21 U.S.C. § 343-1.
172
See Transparency Compliance PN, 26 FCC Rcd at 9413-14 (clarifying that the rule does not compel the 
distribution of disclosure materials in hard copy or extensive training of sales employees to provide disclosures 
themselves).
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b. Transparency to Edge Providers
75. As noted above, the Commission also adopted the transparency rule to ensure that 
broadband providers would disclose sufficient information to permit “content, application, service, and 
device providers to develop, market, and maintain Internet offerings.”
173
  Some commenters have 
suggested that current disclosures provide insufficient information for edge providers.
174
  We seek 
comment on how the existing transparency rule is working and how we can enhance its effectiveness with 
respect to edge providers. Should we view some categories of edge providers, such as start-up 
companies, as having distinct needs and, if so, what would be the implications for an enhanced 
transparency rule?  
76. We also seek comment on the extent to which the transparency rule does, or should, 
disclose useful information to providers who seek to exchange traffic with broadband provider networks.  
In other words, should we view transit, CDN, or other providers engaged in Internet traffic exchange as a 
class of persons whose interests are similar to those of edge providers who wish “to develop, market, and 
maintain Internet offerings,” perhaps because they may have such edge providers as their customers?  For 
instance, many edge providers utilize the services of an intermediary CDN, such as Akamai, EdgeCast, 
Limelight, or Level 3, or cloud service providers such as Amazon, Microsoft, or RackSpace, which 
provide the servers upon which the applications run and also interconnect directly with broadband 
providers.  Other edge providers bypass these networks and interconnect directly with broadband 
providers through peering arrangements.  Some edge providers, such as Google or Amazon, may act both 
as content providers for their own services and as CDNs or cloud service providers for other services.  We 
seek comment on whether these subgroups have distinguishable needs for information that could be 
provided through disclosure and, if so, what kind of information would be most useful.  
c. Transparency to the Internet Community and the Commission
77. The Common Interests of End Users, Edge Providers, and the Broader Internet 
Community. We seek comment on the extent to which the existing transparency rule fully reflects the 
“virtuous circle” that, in the long term, unites the interests of end users, edge providers, the broader 
Internet community, and the Commission.  Are there ways to enhance the transparency rule to further 
facilitate the virtuous circle?  What other disclosures might encourage and improve the deployment of 
broadband in the United States?
78. We also seek comment—relevant to all stakeholders—on whether and, if so, how the 
Commission should enhance the existing transparency rule to ensure the effectiveness of, and compliance 
with, the other rules we propose in today’s Notice.  For example, to ensure the effectiveness of the no-
blocking rule proposed below, should the Commission mandate that broadband providers disclose—in a 
more rigorous and consistent way—the expected performance end users can expect from their broadband 
service?
175
  To improve information about broadband provider practices for end users, edge providers, 
and the broader Internet community, we tentatively conclude that broadband providers must disclose in a 
timely manner to consumers, edge providers, and the public (and, of course, the Commission) when they 
make changes to their network practices as well as any instances of blocking, throttling, and pay-for-
priority arrangements, or the parameters of default or “best effort” service as distinct from any priority 
service.
79. Measuring Broadband Performance.  The Open Internet Order requires broadband 
providers to disclose accurate information regarding network performance for each broadband service 
they provide.
176
  The accuracy and availability of such network performance information is a common 
                                                     
173
47 C.F.R. § 8.3.
174
See, e.g., Cogent Comments at 10-23; Open MIC Comments at 4.
175
See infra Section III.D.3.
176
Open Internet Order, 25 FCC Rcd at 17937-39, paras. 54, 56.
Federal Communications Commission FCC 14-61
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linchpin for end users, edge providers, and all stakeholders in the Internet community.  As noted in the 
Order, the Commission launched a broadband performance measurement project called “Measuring 
Broadband America” (MBA) to accurately measure key performance metrics, including baseline 
connection speed and latency.
177
  To satisfy their obligations under the transparency rule, all of the 
12 largest fixed broadband providers chose to participate in the measurement program.
178
  Last year the 
Commission expanded its MBA program to include mobile broadband by releasing a Mobile Broadband 
Speed Test App, an open-source, crowdsourcing program to assess mobile broadband network 
performance nationwide.
179
  The app measures mobile broadband and Wi-Fi network performance and 
delivers to consumers an in-depth view of key metrics related to their mobile broadband experience.  We 
seek comment on the effectiveness of this approach for providing consumers with useful information 
regarding the performance of both fixed and mobile broadband networks.  We seek comment on whether 
participation in MBA should continue to satisfy the requirement that actual speeds be disclosed.
180
  Are 
there areas of this program that can be improved to provide more useful information to consumers?
181
  
80. More generally, are there more efficient or more comprehensive ways to measure 
network performance metrics, including for broadband providers not participating in MBA?  For 
example, could the ability to measure and report network performance be included in the end user’s own 
network modem or residential gateway?  Do such functionalities currently exist, or are they in 
development?
182
  Are there academic or other external research organizations that could assist the 
Commission in collecting and analyzing information about traffic, congestion, and other features of the 
Internet?
183
  Should the Commission mandate the use of monitoring devices, like those used in MBA?  
How can performance metrics most accurately measure the actual download and upload speeds a 
consumer can expect to experience, rather than “up to” speeds or “last-mile” performance?  Should the 
Commission look to an external advisory group to aid in the development and feasibility of performance 
metrics and measurement?
81. Congestion.  The Open Internet Order highlighted the value of providing end users with 
information about the sources of congestion that might impair the performance of edge-provider 
services.
184
  As the Open Internet Order explained, “it is often difficult for end users to determine the 
causes of slow or poor performance of content, applications, services or devices.”
185
At the same time, 
the Commission recognized that “congestion management may be a legitimate network management 
                                                     
177
Id. at 17940, para. 58 n.188.
178
See, e.g., Transparency Compliance PN, 26 FCC Rcd at 9414.
179
See News Release, Federal Communications Commission, FCC Unveils Mobile Broadband Speed Test App to 
Empower Consumers (Nov. 14, 2013), http://www.fcc.gov/document/fcc-unveils-mobile-broadband-speed-test-app-
empower-consumers.
180
See Office of Engineering and Technology & Consumer and Governmental Affairs Bureau, Federal 
Communications Commission, Measuring Broadband America, http://www.fcc.gov/measuring-broadband-america 
(last visited May 12, 2014).
181
See, e.g., Cogent Comments at 10-17 (suggesting a number ways to improve the MBA program including more 
localized data, more frequent release of “unaudited” data, and tests that would allow for comparison of traffic that 
originates outside a provider’s network to that which originates within the network).
182
For example, the Internet Engineering Task Force (IETF) has started a related standards effort.  See Internet 
Engineering Task Force, Large-Scale Measurement of Broadband Performance, 
https://datatracker.ietf.org/wg/lmap/charter/ (last visited May 12, 2014).
183
See, e.g., The Cooperative Association for Internet Data Analysis, Home, http://www.caida.org/home/ (last 
visited May 12, 2014).
184
See Open Internet Order, 25 FCC Rcd at 17938-39, 17944, paras. 56, 70.
185
Id. at 17944, para. 70.
Federal Communications Commission FCC 14-61
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purpose.”
186
  But the Commission also emphasized the importance of the disclosure to end users of 
“descriptions of congestion management practices” including “indicators of congestion” and “the typical 
frequency of congestion.”
187
  
82. Since the 2010 Open Internet Order, some have suggested that sources of congestion that 
impact end users may originate beyond the broadband provider’s network or in the exchange of traffic 
between that network and others.  An end user’s inability to ascertain the source of congestion could lead 
to confusion, for example, to the filing of an unjustified complaint against a broadband provider (if the 
source of the congestion were elsewhere) or a mistaken decision by the end user to purchase additional 
bandwidth to improve performance (again, if the source of congestion were elsewhere).  Edge providers 
and other stakeholders also have expressed a need for greater information about network congestion.
188
  
83. In light of these concerns, we tentatively conclude that we should require that broadband 
providers disclose meaningful information regarding the source, location, timing, speed, packet loss, and 
duration of network congestion.  We seek comment on this tentative conclusion, including on how to 
implement it in a practical manner that provides meaningful information to end users, edge providers, and 
other stakeholders without causing undue burden on broadband providers.  For example, should the 
information to be disclosed be based upon a sampling taken at given points in time, and if so, what would 
be an appropriate interval for such sampling?  We note that Cogent has made suggestions about 
enhancements to the transparency rule along these lines and proposing specific means of implementation, 
upon which we seek comment.
189
  In making the foregoing tentative conclusion and seeking comment on 
how to implement it, we emphasize that we are positing that the public would be served by additional 
information concerning the existence and duration of congestion, regardless of its cause, so that there is 
greater understanding of the impact of that congestion on the performance of a broadband provider’s 
network, if any.  We do not, however, propose to expand the scope of the open Internet rules in any 
fashion to regulate traffic exchange, though, as noted above, we ask for public input on this tentative 
conclusion.
190
d. Transparency for Mobile Broadband
84. The Commission currently applies the same transparency requirement to both fixed and 
mobile providers, reasoning that end users need a clear understanding of “network management practices, 
performance, and commercial terms, regardless of the broadband platform they use to access the 
Internet.”
191
  We seek comment on how we should assess the effectiveness of the existing rule in the 
mobile broadband context.  For example, most mobile broadband plan offerings have generally had lower 
data usage limits than those offered for fixed broadband services.  Accordingly, do mobile broadband 
                                                     
186
Id. at 17955, para. 91.
187
Id. at 17938, para. 56.
188
See, e.g., Cogent Comments at 10-17; Level 3 Comments at 3. 
188
See Cogent Comments at 10-23.
188
See supra Section III.C.2.a.
189
See Cogent Comments at 10-23.
190
See supra Section III.B. 
191
See Open Internet Order, 25 FCC Rcd at 17958-59, para. 97.  The Order also provided certain clarifications 
regarding how this requirement applied to mobile broadband providers, specifying that such providers were required 
“to disclose their third-party device and application certification procedures, if any; to clearly explain their criteria 
for any restrictions on use of their network; and to expeditiously inform device and application providers of any 
decisions to deny access to the network or of a failure to approve their particular devices or applications.”  Id. at 
17959, para. 98.
Federal Communications Commission FCC 14-61
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subscribers have an enhanced need to understand, monitor, and more flexibly adjust their mobile data 
usage needs than the fixed broadband users?    
85. We seek comment on whether and, if so, how enhancements to the transparency rule 
should apply to mobile broadband network providers.  Would the enhanced transparency requirements 
described herein, or others, help meet the information needs of mobile broadband device and application 
developers as well as the needs of end users?  How can we make sure that the disclosure requirements 
discussed above are appropriate and effective for mobile broadband in view of the many operational 
factors that may influence performance of mobile broadband networks, including the mobile access 
technology, the weather, the distance to the serving cell site, the number of users in a cell site, and device 
capability?
192
  Should the nature of disclosure to customers of wireless networks be different if the 
wireless service is provided by a network as an explicit substitute for copper-based, traditional service, 
including voice and DSL?
e. Burdens of Enhanced Transparency on Broadband Providers
86. We seek comment on the extent to which adopting enhanced transparency requirements 
would create particular burdens in either the fixed or the mobile broadband environment and whether and 
how such burdens would affect the pace of innovation, investment, and growth. How can we achieve the 
public benefits of enhanced disclosure requirements without imposing unreasonable burdens on the 
broadband providers? Are there ways to minimize the costs and burdens associated with any enhanced 
disclosure requirements?  Are there ways the Commission or industry associations could reduce any such 
burdens, for example through the use of a voluntary industry standardized glossary, or through the 
creation of a dashboard that permits easy comparison of the policies, procedures, and prices of various 
broadband providers throughout the country? 
3. Compliance and Enforcement
87. In the Open Internet Order, the Commission noted that a key objective of the 
transparency rule is to enable the Commission to collect information necessary to assess, report, and 
enforce the open Internet rules.
193
  As discussed further below, we seek comment on how the Commission 
can best design a process for enforcing the transparency rule that provides certainty, flexibility, and 
access for all affected parties.
194
  Should the Commission permit individuals to report possible 
noncompliance with our open Internet rules anonymously or take other steps to protect the identity of 
individuals who may be concerned about retaliation for raising concerns?  We propose that the 
consequences of a failure to comply with our transparency rule should be significant and include 
monetary penalties.  We seek comment on the most effective methods to ensure ongoing compliance with 
the transparency rule.  How can we ensure that these disclosure requirements are as effective and 
effectively enforced as disclosure requirements in other areas of the law, such as disclosures to the 
Securities and Exchange Commission?  Should the Commission require broadband providers to certify 
that they are in compliance with the required disclosures, particularly if the current flexible approach is 
amended to require more specific disclosures?
195
  Should we also require broadband providers to submit 
                                                     
192
See Transparency Compliance PN, 26 FCC Rcd at 9415 (recognizing that “measuring performance can be more 
challenging for mobile broadband than for fixed”).
193
See Open Internet Order, 25 FCC Rcd at 17937, para. 53.
194
See infra Section III.H.
195
Cf., e.g., 47 C.F.R. § 64.2009(e) (requiring telecommunications carriers to file an annual certification confirming 
that it has established operating procedures adequate to ensure compliance with the customer proprietary network 
information (CPNI) rules). 
Federal Communications Commission FCC 14-61
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reports containing descriptions of current disclosure practices?
196
  If so, should we modify our existing
process for protecting the confidentiality of competitively sensitive information?
197
  
88. We also seek comment on whether the Commission can better promote transparency 
through its own outreach and reporting mechanisms.
198
  Should the Commission establish and make 
public a list of those broadband providers that block or otherwise limit certain types of traffic?  Should the 
Commission collect and publish information on pay-for-priority arrangements?  In what timeframe should 
the Commission require providers to report such changes in their traffic management policies to the 
Commission?  We invite comment on the merits of these options, and any other suggestions commenters 
may deem relevant, to ensure full compliance with the transparency rule, including identification of any 
regulatory burdens this might entail for broadband providers.
D. Preventing Blocking of Lawful Content, Applications, Services, and Nonharmful 
Devices
89. We believe that, as the Commission found in the Open Internet Order, “the freedom to 
send and receive lawful content and to use and provide applications and services without fear of blocking 
is essential to the Internet’s openness and to competition in adjacent markets such as voice 
communications and video and audio programming.”
199
  The D.C. Circuit acknowledged the validity of 
this policy rationale for the no-blocking rule adopted in the Open Internet Order, but vacated the rule 
because it found that the Commission had failed to provide a legal rationale under which the prohibition 
would not impermissibly subject broadband providers to common carriage regulation.
200
  To address the 
ongoing concerns with the harmful effects that blocking of Internet traffic would have on Internet 
openness, we propose to adopt the text of the no-blocking rule that the Commission adopted in 2010, with 
a clarification that it does not preclude broadband providers from negotiating individualized, 
differentiated arrangements with similarly situated edge providers (subject to the separate commercial
reasonableness rule or its equivalent).  So long as broadband providers do not degrade lawful content or 
service to below a minimum level of access, they would not run afoul of the proposed rule.  We also seek 
comment below on how to define that minimum level of service. Alternatively, we seek comment on 
whether we should adopt a no-blocking rule that does not allow for priority agreements with edge 
providers and how we would do so consistent with sources of legal authority other than section 706, 
including Title II.
201
  
90. It is important to understand the relationship between the proposed no-blocking and 
commercial reasonableness rules. Although the proposed no-blocking rule only establishes a minimum 
level of service, and thus allows room for individualized negotiations, the proposed commercial 
reasonableness rule separately applies to any and all conduct, including by asking whether paid 
prioritization can be barred outright and by asking whether to bar practices that harm competition, 
consumers, and the free exercise of speech.  
                                                     
196
See, e.g., Open Internet NPRM, 24 FCC Rcd at 13111, para. 128.
197
47 C.F.R. § 0.459.
198
See, e.g., Open MIC Comments at 4 (suggesting that the Commission require ISPs to make available all their 
filings regarding network management practices including those in legal proceedings and with other federal 
regulatory agencies).
199
Open Internet Order, 25 FCC Rcd at 17941-42, para. 62.
200
Verizon, 740 F.3d at 658.
201
See infra Section III.F.  For example, to the extent the Commission relies on Title II, would sections 201(b) and 
202(a) of the Act compel a different result than provision of a minimum level of service?  See 47 U.S.C. § 201(b) 
(prohibiting unjust or unreasonable “charges, practices, [or] classifications”); 47 U.S.C. § 202(a) (prohibiting 
“unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services”). 
Federal Communications Commission FCC 14-61
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1. The 2010 No-Blocking Rule
91. 2010 Open Internet Order.  In the Open Internet Order, the Commission adopted a no-
blocking rule to preserve the openness that was and remains a core expectation of end users.
202
  The Open 
Internet Order noted that a no-blocking principle had been broadly accepted since its inclusion in the 
Commission’s 2005 Internet Policy Statement,
203
and the Internet Policy Statement itself reflected 
expectations and practices of how the Internet should and did work.
204
  A more limited variation of the 
rule applied to mobile broadband providers, due to the operational constraints that affect mobile 
broadband services, the rapidly evolving nature of the mobile broadband technologies, and the generally 
greater amount of consumer choice for mobile broadband services than for fixed.
205
   
92. D.C. Circuit Opinion in Verizon v. FCC.  The D.C. Circuit struck down the no-blocking 
rule after finding that the Commission had failed to provide a legal justification that would take the rule 
out of the realm of impermissible common carriage.
206
  The court stated that it was “somewhat less clear” 
whether the no-blocking rule constituted per se common carriage regulation than whether the 
antidiscrimination rule did.
207
  Nonetheless, the court concluded that the no-blocking rule, at least as 
described in the Open Internet Order, required broadband providers to serve edge providers 
indiscriminately.
208
  The no-blocking rule thereby imposed per se common carriage rules and thus 
violated the Communications Act’s prohibition on the imposition of common carrier obligations on 
providers of information services.
209
    
93. The court intimated that the no-blocking rule could pass scrutiny, however, if broadband 
providers could engage in individualized bargaining while subject to the rule.  The court reasoned that “if 
the relevant service that broadband providers furnish is access to their subscribers generally, as opposed 
to access to their subscribers at the specific minimum speed necessary to satisfy the anti-blocking rules, 
then these rules, while perhaps establishing a lower limit on the forms that broadband providers’ 
arrangements with edge providers could take, might nonetheless leave sufficient ‘room for individualized 
bargaining and discrimination in terms’ so as not to run afoul of the statutory prohibitions of common 
carrier treatment.”
210
  Such a practice would allow for individualized bargaining where providers would 
not be required “to hold themselves out to serve all comers indiscriminately on the same or standardized 
terms.”
211
  If the Commission’s no-blocking rule allowed individualized bargaining above the minimum 
level of service necessary, then the rule might not create per se common carriage obligations.
212
  The 
court noted that although the Commission had asserted this interpretation of the rule at oral argument, the 
                                                     
202
See Open Internet Order, 25 FCC Rcd at 17941-42, para. 62.  
203
Id.  See generally Internet Policy Statement, 20 FCC Rcd 14986.
204
See Press Release, Chairman Kevin J. Martin, Comments on Commission Policy Statement (Aug. 5, 2005) (“The 
evidence today is that their Internet access consumers have the ability to reach any Internet content.  Indeed, cable 
and telephone companies’ practices already track well the Internet principles we endorse today.”), 
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A2.pdf.
205
Open Internet Order, 25 FCC Rcd at 17956-57, 17959-60, paras. 94-95, 99.  
206
Verizon, 740 F.3d at 658.
207
Id. at 657.
208
Id. at 651.
209
See id. at 655-58.
210
See id. at 658.
211
Id.
212
See id.; see also id. at 667-68 (Silberman, J., dissenting in part) (“By exceeding the minimum level of service, the 
majority suggests, the broadband providers would have wide latitude to engage in individualized bargaining.”).
Federal Communications Commission FCC 14-61
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court could not consider it as a possible basis for upholding the rule because the Commission had not 
advanced this position in the Open Internet Order.
213
2. Proposal to Adopt a No-Blocking Rule 
94. We continue to believe that safeguarding consumers’ ability to access and effectively use 
the lawful content, applications, services, and devices of their choice on the Internet is an essential 
component of protecting and promoting the open Internet.  Therefore, we tentatively conclude that we 
should adopt the text of the rule that the Commission adopted in the Open Internet Order, which 
provided:  
A person engaged in the provision of fixed broadband Internet access service, insofar as 
such person is so engaged, shall not block lawful content, applications, services, or non-
harmful devices, subject to reasonable network management.
214
A person engaged in the provision of mobile broadband Internet access service, insofar as 
such person is so engaged, shall not block consumers from accessing lawful websites, 
subject to reasonable network management; nor shall such person block applications that 
compete with the provider’s voice or video telephony services, subject to reasonable 
network management.
215
95. We believe this to be the public policy that will best serve Internet openness.  While 
maintaining this rule text, we propose to make clear that the no-blocking rule would allow individualized 
bargaining above a minimum level of access to a broadband provider’s subscribers—the revised rationale 
the court suggested would be permissible rather than per se common carriage—but, also consistent with 
the court’s analysis, separately subject such practices to scrutiny under the commercially reasonable 
practices rule (or its equivalent).  We believe that by preserving end users’ ability to access the Internet 
content of their choice, reinstating a no-blocking rule would increase demand for broadband services and 
thus increase investment in broadband network infrastructure and technologies.
216
  We seek comment on 
the proposed no-blocking rule and its potential effect on broadband investment and deployment, including 
whether and under what circumstances broadband providers have incentives to block content.  We also 
seek comment on possible approaches other than adopting the text of the 2010 rule.  Should we modify 
the text of the rule to explicitly address the minimum level of access required, as discussed below?  
96. Alternatively, we seek comment on whether we should adopt a no-blocking rule that 
either itself prohibits broadband providers from entering into priority agreements with edge providers or 
acts in combination with a separate rule prohibiting such conduct.
217
  As discussed below, the record in 
this proceeding reflects numerous public concerns about the potential for priority agreements to harm an 
open Internet.
218
  How could we address such concerns in the context of the no-blocking rule?  If the 
                                                     
213
Id. at 658-59 (quoting the Commission counsel’s statement at oral argument that “it’s not common carriage to 
simply have a basic level of required service, if you can negotiate different levels with different people”).  
214
Open Internet Order, 25 FCC Rcd at 17942, para. 63.  Consistent with the 2010 rule, the phrase “content, 
applications, services” in the proposed rule for fixed broadband service “refers to all traffic transmitted to or from 
end users of a broadband Internet access service, including traffic that may not fit cleanly into any of these 
categories.”  Id. at 17942, para. 64 & n.200.
215
Id. at 17959, para. 99.  
216
See, e.g., CompTIA Comments at 3 (explaining that following the striking down of the no-blocking rule, “a 
number of CompTIA’s member companies, all of which were small edge providers, voiced concern that ISPs would 
now charge them for access to their customers and block them if they refused to pay”).
217
See infra paras. 126, 138.
218
See infra n.250.  
Federal Communications Commission FCC 14-61
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Commission were to proceed down this alternative path, how should the Commission define “priority”?  
Are “priority” agreements broader than “pay-for-priority,” possibly including the exchange of 
consideration other than money?  Are there other arrangements between broadband providers and edge 
providers that have the potential to harm Internet openness and should be addressed within the no-
blocking rule?  Commenters should address the legal bases and theories, including Title II, that the 
Commission could rely on for such a no-blocking rule, and how different sources of authority might lead 
to different formulations of the no-blocking rule.  
3. Establishing the Minimum Level of Access under the No-Blocking Rule
97. As noted above, the D.C. Circuit suggested that the Commission’s 2010 no-blocking rule 
could be interpreted as requiring broadband providers to “furnish . . . access to their subscribers 
generally” while “establishing a lower limit on the forms that broadband providers’ arrangements with 
edge providers could take”—and that under that interpretation the rule might not impose common carrier 
status on broadband providers.
219
  Consistent with the court’s ruling, we tentatively conclude that the 
revived no-blocking rule should be interpreted as requiring broadband providers to furnish edge providers 
with a minimum level of access to their end-user subscribers.
220
We tentatively conclude that our 
proposed no-blocking rule would allow broadband providers sufficient flexibility to negotiate terms of 
service individually with edge providers, consistent with the court’s view that we must permit providers 
to “adapt . . . to individualized circumstances without having to hold themselves out to serve all comers 
indiscriminately on the same or standardized terms.”
221
We reiterate that, as discussed further below, 
under the proposed rules contained herein such individualized arrangements for priority treatment would 
be subject to scrutiny under the proposed commercial reasonableness rule and prohibited under that rule if 
they harm Internet openness. We seek comment on these tentative conclusions.
98. Requiring this minimum level of access under the no-blocking rule will ensure that all 
users have access to an Internet experience that is sufficiently robust, fast, and effectively usable.
222
This 
includes both end-user consumers and edge providers of all types and sizes, including those content 
providers who do not enter into specific arrangements with broadband providers.  In short, our approach
will enable consumers to access the content, services, and applications they demand and ensure that 
innovators and edge providers have the ability to offer new products and services.  We seek comment on 
this analysis.  
99. Under the approach described by the D.C. Circuit, “broadband providers [would] have no 
obligation to actually provide an edge provider with the minimum service necessary to satisfy the rules,” 
because they could instead “deliver all edge providers’ traffic” in a manner that exceeds that minimum, 
and they would then be free to “negotiate separate agreements with each individual edge provider” and 
also to “charge similarly-situated edge providers completely different prices for the same service.”
223
  Are 
there alternative approaches that, consistent with the Verizon decision, would avoid per se common 
                                                     
219
Verizon, 740 F.3d at 658. 
220
Such actions, permissible under the no-blocking rule, would, of course, be separately subject to the proposed 
commercially reasonable practices standard set out below.  See infra Section III.E.
221
Verizon, 740 F.3d at 652 (quoting Cellco P’ship v. FCC, 700 F.3d 534, 548 (D.C. Cir. 2012)).  In this regard, we 
view the operation of the no-blocking rule separate from any other impact on broadband providers that might arise 
from application of the legal standard, factors, and dispute resolution framework discussed below.  See infra 
Sections III.E, III.F, III.H.
222
See infra Appx. A (proposing a definition of “block” for purposes of the no-blocking rule).
223
Verizon, 740 F.3d at 658.  We note that a broadband provider’s discretion in setting rates could be constrained to 
some degree by the commercially reasonable standard and dispute resolution framework discussed below, if adopted 
by the Commission.  See infra Sections III.E, III.H.  As we explain below, that proposed standard would not 
constitute per se common carriage.
Federal Communications Commission FCC 14-61
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carriage?  Are there forms of price discrimination that, even if appropriate under the no-blocking rule, 
should be separately subject to the commercial reasonableness rule or its equivalent?   
100. We also seek comment on how, consistent with this interpretation, we should define or 
clarify the minimum level of access required by the rule, or otherwise define what provider conduct 
would constitute “blocking” under the rule.  In our view, a defined minimum level of access provides 
assurances both to end users, by helping them understand the potential uses of their service, and to edge 
providers.  Such assurances should enhance consumer demand, which drives investment both in the 
network and at the edge.  
101. We also seek comment on how “minimum level of access” should be defined to provide 
the robust, fast, and effectively usable access discussed above.  Should we define the minimum level of 
access from the perspective of end users, edge providers, or both?  Should the minimum level of access be 
dynamic, evolving over time, and if so, how can that flexibility be incorporated into the rule?  In the 
following paragraphs, we describe in alphabetical order several possible options by which we may define 
a minimum level of access under the no-blocking rule.  We seek comment on these options and on any 
approaches by which the Commission should define the minimum level of access.  For each of these 
potential options, we seek comment on its advantages and disadvantages, on its legal sustainability under 
Verizon, and on how effective it would be at protecting the open Internet, including the ease or difficulty 
with which violations can be identified and remedied.  We seek comment on how the Commission should 
implement, monitor compliance with, and enforce the rule, under each of the options described.  For each 
option, we also seek comment on whether the minimum level of access should be reflected in providers’ 
disclosures under an enhanced transparency rule.  Under any of these options, we seek comment on how 
the minimum level of access should be measured.  Should the Commission measure technical parameters, 
based on a sample, focusing on speed, packet loss, latency, or other factors?  Where in the network should 
such measurement take place to ensure an accurate measure of the broadband provider’s performance?  
Finally, we recognize that from time to time a provider may be unable to provide such a minimum level 
of access temporarily for a variety of reasons.
224
  We seek comment on how the Commission should 
distinguish such temporary inadvertent failures from intentional or prolonged blocking, including whether 
the Commission should consider exempting incidents of blocking that last for less than a specified 
amount of time.    
102. Best Effort.  One way to define a minimum level of access is as a requirement that 
broadband providers apply no less than a “best effort” standard to deliver traffic to end users.
225
  For any 
particular type of Internet traffic, best-effort delivery would represent the “typical” level of service for 
that type of traffic—in effect, routing traffic according to the “traditional” architecture of the Internet.
226
  
Broadband providers would be free to negotiate “better than typical” delivery with edge providers, and 
would be prohibited (subject to reasonable network management) from delivering “worse than typical” 
service in the form of degradation or outright blocking.  We seek comment on this potential approach.  
                                                     
224
Aside from complete outages (which are not the subject of this Notice), we note that in some cases inadvertent 
action or circumstances outside a provider’s control may cause a subset of traffic to be blocked.  For example, if a 
connection with one of several peering partners is severed, some Internet traffic may seem unacceptably slow while 
other traffic appears normal.  Alternatively, a provider engaged in reasonable network management (such as 
blocking the source of a distributed denial of service attack) may inadvertently block other traffic due to a 
transcription error.  If steps are taken in a timely manner to correct such problems, we would not anticipate 
considering such action to violate a no-blocking rule.     
225
See, e.g., S. Floyd & M. Allman, Comments on the Usefulness of Simple Best-Effort Traffic 9-14, Internet 
Engineering Task Force (July 2008), https://tools.ietf.org/html/rfc5290.
226
Open Internet NPRM, 24 FCC Rcd at 13086, para. 56 (“The Internet has traditionally relied on an end-to-end, 
open architecture, in which network operators use their ‘best effort’ to deliver packets to their intended destinations 
without quality-of-service guarantees.”).
Federal Communications Commission FCC 14-61
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Would “best effort” be measured against the technical capacity of a particular broadband provider’s 
network capacity and characteristics?
103. Minimum Quantitative Performance.  Another way to define a minimum level of access 
is through specific technical parameters, such as a minimum speed.  To the extent that commenters 
believe that the Commission should promulgate a rule that establishes specific technical parameters for 
the required minimum level of access, what should those parameters be?  Should they identify specific 
speeds of service, or would it be preferable to identify specific problems that a minimum level of service 
would avoid (such as preventing latency and jitter for services that tolerate them poorly)?
227
  Would the 
Commission need to differentiate between different broadband access technologies?  While this approach 
would provide greater certainty than other approaches, a specific technical definition of minimum access 
could become outdated as available broadband network technologies change and available broadband 
speeds improve.  How frequently would we need to revisit a specific technical definition of minimum 
access to ensure that it keeps up with advances in broadband service?
104. An Objective, Evolving “Reasonable Person” Standard.  Another approach to defining a 
minimum level of access to broadband providers’ end users is to think of it as the level that satisfies the 
reasonable expectations of a typical end user.  We might think of this as a “reasonable person” standard of 
access.  For example, a typical end user may reasonably expect the ability to access streaming video from 
any provider, place and receive telephone calls using the VoIP service of the end user’s choosing, and 
access any lawful web content.  Under this approach, a broadband provider that satisfies these and other 
reasonable expectations would be in compliance with the no-blocking rule.  One possible advantage of 
this approach to defining minimum access is flexibility:  the absence of a specific technical definition 
means that the standard for compliance can evolve as the expectations in the marketplace change without 
further Commission action.  On the other hand, this approach may create less certainty than other 
approaches might and could be more difficult to enforce.  We seek comment generally on a “reasonable 
person” standard for defining minimum access, and in particular, how this standard could be crafted to be 
sufficiently objective and predictable to provide certainty to broadband providers and edge providers.  
4. Application of the No-Blocking Rule to Mobile Broadband  
105. As noted above, the 2010 no-blocking rule applied differently to mobile broadband 
providers than to fixed, and today’s Notice would maintain that approach.  The previous rule prohibited 
mobile broadband providers from blocking consumers from accessing lawful websites or blocking 
applications that compete with the provider’s voice or video telephony services. We propose to adopt the 
same approach as in the 2010 obligation, which would prohibit mobile broadband providers from 
blocking lawful web content as well as applications that compete with the mobile broadband providers’ 
own voice or video telephony services, subject to reasonable network management.  We seek comment on 
this proposal.  
106. In addition, we seek comment on whether it would serve the public interest to expand the 
rule’s scope to include reasonable access to all applications that compete with the mobile broadband 
Internet access provider’s other services, not just those that compete with voice or video telephony 
services, subject to reasonable network management practices.  Should the application of the no-blocking 
rule to mobile broadband providers turn on whether mobile service was marketed to consumers as a 
substitute for a fixed telecommunications service previously offered by the provider or its affiliate?  How 
would treating mobile broadband differently from fixed broadband affect consumers in different 
demographic groups, including those who rely solely on mobile broadband for Internet access?
228
  How 
                                                     
227
See Vonage Comments at 8 (urging the Commission to “define a baseline throughput level” that “reflect[s] 
changing consumer expectations while recognizing legitimate technical constraints”). 
228
For example, according to the Pew Research Internet Project, in 2011, Blacks and Latinos were more than twice 
as likely as whites to rely on their smartphones as their exclusive source of Internet access (38% of Black/Latino 
smartphone users versus 17% of white non-Hispanic smartphone users), and those with incomes of less than 
(continued…)
Federal Communications Commission FCC 14-61
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should the Commission consider applying a no-blocking rule to facilities-based mobile providers versus 
resellers?
107. We also seek comment on whether and how we should define a minimum level of access 
in the context of the proposed no-blocking rule for mobile broadband, or otherwise clarify what 
constitutes “blocking,” and whether that definition should be different for mobile broadband than for 
fixed.  For each of the approaches discussed above to define a “minimum level of access,” we seek 
comment on any particular benefits or difficulties that such approach would present.  
108. We recognize that there have been substantial mobile marketplace changes and 
developments since 2010, including the increased use of Wi-Fi technology, and seek comment on whether 
and how such changes should impact our no-blocking rule for mobile broadband.  We seek comment on 
the extent to which we should take into account the increasing provision of Wi-Fi by broadband 
providers,
229
and the growing use of Wi-Fi by end users for the off-load of wireless broadband, as we 
consider the application of the no-blocking rule to mobile broadband services.
230
    
5. Applicability of the No-Blocking Rule to Devices
109. The 2010 no-blocking rule prohibited fixed broadband providers from blocking non-
harmful end-user devices, and the rule we propose today would do the same.  We seek comment on how 
this treatment of non-harmful devices fits into the Verizon court’s interpretation of the rule.  Should the 
ability to attach non-harmful devices to broadband service be included among the reasonable end-user 
expectations listed above, or should we analyze non-harmful devices differently?    
E. Codifying an Enforceable Rule to Protect the Open Internet That Is Not Common 
Carriage Per Se
110. Separate and distinct from the no-blocking rule, we believe that establishing an 
enforceable legal standard for broadband provider practices is necessary to preserve Internet openness, 
protect consumers, and promote competition.  While the D.C. Circuit vacated the Commission’s rule 
prohibiting “unreasonable discrimination” by fixed broadband providers on the theory that it “so limited 
broadband providers’ control over edge providers’ transmissions that [it] constitute[d] common carriage 
per se,” the court underscored the validity of the “commercially reasonable” legal standard the 
Commission used in the data roaming context and the court upheld in Cellco.
231
  
111. Today, we tentatively conclude that the Commission should adopt a revised rule that, 
consistent with the court’s decision, may permit broadband providers to engage in individualized 
(Continued from previous page)                                                            
$30,000 were more than twice as likely as those with incomes of $50,000 or more to do so (40% versus 17%).  
Aaron Smith, Smartphones as an Internet Appliance, Pew Research Internet Project (July 2011),  
http://www.pewinternet.org/
2011/07/11/smartphones-as-an-internet-appliance/.
229
Kevin Fitchard, Comcast is Turning Homes Into Public Wi-Fi Hotspots, Bloomberg Businessweek (June 11, 
2013), http://www.businessweek.com/articles/2013-06-11/comcast-is-turning-homes-into-public-wi-fi-hotspots 
(describing Comcast’s wireless gateway that transmits two signals with each functioning as a separate network 
where the household that owns or rents the router can access the first network, and any Comcast broadband 
customer can access the second network).
230
See New America Foundation & Open Technology Institute Comments at 10-11 (contending that the 
Commission should apply the same openness provisions to both fixed and mobile broadband networks and that 
consumers should have the same right to use the Internet whether their device is “‘connected over WiFi to a wired 
LAN, or moments later, connected over a wireless carrier’s network”); see also NCTA Comments at 8-10 (arguing 
that applying different rules to fixed and mobile creates marketplace distortions that may hamper cross-platform 
broadband competition).
231
Verizon, 740 F.3d at 655; see also Cellco, 700 F.3d 534.  
Federal Communications Commission FCC 14-61
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practices, while prohibiting those broadband provider practices that threaten to harm Internet openness.  
Our proposed approach contains three essential elements: (1) an enforceable legal standard of conduct 
barring broadband provider practices that threaten to undermine Internet openness, providing certainty to 
network providers, end users, and edge providers alike, (2) clearly established factors that give additional 
guidance on the kind of conduct that is likely to violate the enforceable legal standard, and 
(3) encouragement of individualized negotiation and, if necessary, a mechanism to allow the Commission 
to evaluate challenged practices on a case-by-case basis, thereby providing flexibility in assessing 
whether a particular practice comports with the legal standard.  We seek comment below on the design 
and justification of this rule.  
112. Alternatively, we also seek comment on whether the Commission should adopt an 
alternative legal standard to govern broadband providers’ practices.  How can we ensure that our 
proposed rule sufficiently protects against harms to the open Internet?  How would the rule we propose 
today change if the Commission were to rely on Title II (or other sources of legal authority) to adopt rules 
to protect and promote Internet openness?
232
  We seek comment on how the goal of the proposed rule—to 
prevent those broadband provider practices that limit Internet openness—could best be achieved.  
1. The 2010 No Unreasonable Discrimination Rule
113. 2010 Open Internet Order.  The Commission adopted a no unreasonable discrimination 
rule to prevent fixed broadband providers from engaging in harmful conduct when transmitting lawful 
network traffic over a consumer’s broadband Internet access service.
233
  The antidiscrimination rule 
prohibited fixed broadband providers from unreasonably discriminating against network traffic subject to 
reasonable network management.
234
  Unlike the transparency and no-blocking rules the Commission 
adopted in 2010, the no unreasonable discrimination rule did not apply to mobile broadband Internet 
access service providers.
235
  
114. D.C. Circuit Opinion in Verizon v. FCC.  The D.C. Circuit vacated the antidiscrimination 
rule because it found that the rule improperly relegated fixed broadband providers to common carrier 
status.
236
  This violated the statutory ban on common carrier treatment of information service providers
because the Commission had classified broadband providers “not as providers of ‘telecommunications 
services’ but instead as providers of ‘information services.’”
237
  The court disagreed with the 
                                                     
232
See infra Section III.F.
233
Open Internet Order, 25 FCC Rcd at 17944, para. 68.  The rule stated, “A person engaged in the provision of 
fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in 
transmitting lawful network traffic over a consumer’s broadband Internet access service.  Reasonable network 
management shall not constitute unreasonable discrimination.”  Id. 
234
Id.  The broad purpose of the “no unreasonable discrimination” rule was “to encourage competition and remove 
impediments to infrastructure investment while protecting consumer choice, free expression, end-user control, and 
the ability to innovate without permission.”  Id. at 17949, para. 78; see also id. at 17909-25, 17927-31, 17951-57, 
paras. 13-34, 38-42, 80-92.  
235
Id. at 17958, para. 96.
236
Verizon, 740 F.3d at 655-56; see also id. at 656-57 (differentiating the antidiscrimination provision at issue in the 
Open Internet Order from other Commission rules that survived common carrier challenges because unlike the rule 
at issue in Southwestern Cable, which was “limited to remedying a specific perceived evil,” the rule here “is not so 
limited, as the compelled carriage obligation applies in all circumstances and with respect to all edge providers”).
237
Id. at 650; see also id. at 631 (“[T]he Commission classified other types of broadband providers, such as DSL 
and wireless, which includes those offering broadband Internet service for cellular telephones, as information 
service providers exempt from Title II’s common carrier requirements.”) (citing Appropriate Framework for 
Broadband Access to the Internet Over Wireline Facilities, 20 FCC Rcd 14853, 14862, para. 12 (2005); Appropriate 
Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, 22 FCC Rcd 5901, 5901-02, 
para.1 (2007); United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of 
(continued…)
Federal Communications Commission FCC 14-61
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Commission’s interpretation to the contrary,
238
finding that by compelling fixed broadband providers to 
serve all edge providers who provided content, services, and applications over the Internet without 
unreasonable discrimination, the rule compelled those providers to hold themselves out “to serve the 
public indiscriminately”—thus treating them as common carriers.
239
  
115. In making its determination, the court relied on its previous decision in Cellco, where it 
upheld the Commission’s data roaming requirements against a common carrier challenge.
240
  The court 
suggested that had the Commission shown that the “no unreasonable discrimination” standard adopted in 
the Open Internet Order differed from the “nondiscrimination” standard applicable to common carriers, 
the rule might have withstood judicial review similar to the data roaming rule at issue in Cellco.
241
  This is 
because the rule in Cellco “expressly permit[ted] providers to adapt roaming agreements to 
‘individualized circumstances without having to hold themselves out to serve all comers indiscriminately 
on the same or standardized terms.’”
242
  The court went on to suggest that, unlike the data roaming rules 
at issue in Cellco, which listed specific factors to consider in a case-by-case determination of whether a 
data roaming provider’s conduct and offerings were commercially reasonable based on the totality of the 
circumstances,
243
the Open Internet Order did not attempt to “ensure that [the] reasonableness standard 
(Continued from previous page)                                                            
Broadband over Power Line Internet Access Service as an Information Service, 21 FCC Rcd 13281, 13281, para. 1 
(2006)). 
238
Verizon, 740 F.3d at 652-56 (rejecting the Commission’s premise that broadband providers did not serve as 
“carriers” for edge providers).  
239
Id. at 655-56. 
240
Cellco, 700 F.3d 534.  The Cellco court turned aside a facial challenge to the data roaming rules, while reminding 
the Commission that it could consider “as applied” challenges if the Commission were to apply its rules in a manner 
that, in fact, relegated network providers to common carrier status.  Id. at 548-49.  We remain cognizant of the 
Court’s admonition in that circumstance, and in this one.
241
Verizon, 740 F.3d at 656.  The court held that the Commission had forfeited the argument, made in footnote 251 
of the Open Internet Order, that the antidiscrimination rule did not constitute per se common carriage because the 
Open Internet rules permitted broadband providers to engage in “reasonable network management,” because the 
Commission had failed to raise the argument in its appellate brief.  Id.  However, the court went on to explain that 
the argument would have failed, in any event, because there was no basis on which to distinguish it from the “just 
and reasonable” legal standard that applies to common carriers.  Id.
242
Id. at 652 (citing Cellco, 700 F.3d at 548) (some internal quotations removed).  The data roaming rule 
specifically states that “providers may negotiate the terms of their roaming arrangements on an individualized 
basis.”  In other words, providers may offer data roaming arrangements on commercially reasonable terms and 
conditions tailored to individualized circumstances without having to hold themselves out to serve all comers 
indiscriminately on the same or standardized terms.  Reexamination of Roaming Obligations of Commercial Mobile 
Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report and 
Order, 26 FCC Rcd 5411, 5433, para. 45 (2011) (Data Roaming Order). 
243
Data Roaming Order, 26 FCC Rcd at 5452-53, para. 86.  In determining whether negotiations were commercially 
reasonable, the Commission stated it would consider the following factors: “whether the host provider has 
responded to the request for negotiation; whether it has engaged in a persistent pattern of stonewalling behavior, and 
the length of time since the initial request; whether the terms and conditions offered by the host provider are so 
unreasonable as to be tantamount to a refusal to offer a data roaming arrangement; whether the parties have any 
roaming arrangements with each other, including roaming for interconnected services such as voice, and the terms 
of such arrangements; whether the providers involved have had previous data roaming arrangements with similar 
terms; the level of competitive harm in a given market and the benefits to consumers; the extent and nature of 
providers’ build-out; significant economic factors, such as whether building another network in the geographic area 
may be economically infeasible or unrealistic, and the impact of any ‘head-start’ advantages; whether the requesting 
provider is seeking data roaming for an area where it is already providing facilities-based service; the impact of the 
terms and conditions on the incentives for either provider to invest in facilities and coverage, services, and service 
quality; whether there are other options for securing a data roaming arrangement in the areas subject to negotiations 
(continued…)
Federal Communications Commission FCC 14-61
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remains flexible.”
244
  The D.C. Circuit suggested that a rule preventing certain types of conduct by 
broadband providers might be acceptable, given the manner in which the Commission has classified 
broadband providers, if the Commission articulated a discrete, flexible standard that prohibited practices 
that could reasonably be understood to harm Internet openness, while allowing individualized broadband 
provider practices, akin to the “commercially reasonable” standard adopted by the Commission in the 
data roaming context.
245
2. Proposed Elements of an Enforceable Legal Rule
a. Prohibiting Only Commercially Unreasonable Practices 
116. Sound public policy requires that Internet openness be the touchstone of a new legal 
standard.  Accordingly, we tentatively conclude that the Commission should adopt a rule requiring 
broadband providers to use “commercially reasonable” practices in the provision of broadband Internet 
access service.  Our proposed approach is both more focused and more flexible than the vacated 2010 
non-discrimination rule.  It would prohibit as commercially unreasonable those broadband providers’ 
practices that, based on the totality of the circumstances, threaten to harm Internet openness and all that it 
protects.  At the same time, it could permit broadband providers to serve customers and carry traffic on an 
individually negotiated basis, “without having to hold themselves out to serve all comers indiscriminately 
on the same or standardized terms,” so long as such conduct is commercially reasonable.
246
  The D.C. 
Circuit explained that such an approach distinguished the data roaming rules at issue in Cellco from 
common carrier obligations.
247
  We seek general comment on this approach, and more targeted comment 
below.  
117. With respect to this approach in general, we tentatively conclude that it should operate 
separately from the no-blocking rule that we also propose to adopt. In other words, the presence or 
absence of the no-blocking rule would have no impact on the presence or absence of the “commercially 
reasonable” standard, and vice versa. This would mean that conduct acceptable under the no-blocking 
rule would still be subject to independent examination under the “commercially reasonable” standard. 
We seek comment on this approach.
118. The core purpose of the legal standard that we wish to adopt, whether the “commercially 
reasonable” standard or another legal formulation, is to effectively employ the authority that the Verizon 
court held was within the Commission’s power under section 706. In essence, the court upheld the 
Commission’s judgment that (1) section 706 grants substantive power to the Commission to take actions, 
including removing barriers to infrastructure investment and promoting competition in 
(Continued from previous page)                                                            
and whether alternative data roaming partners are available; events or circumstances beyond either provider’s 
control that impact either the provision of data roaming or the need for data roaming in the proposed area(s) of 
coverage; the propagation characteristics of the spectrum licensed to the providers; whether a host provider’s 
decision not to offer a data roaming arrangement is reasonably based on the fact that the providers are not 
technologically compatible; whether a host provider’s decision not to enter into a roaming arrangement is reasonably 
based on the fact that roaming is not technically feasible for the service for which it is requested; whether a host 
provider’s decision not to enter into a roaming arrangement is reasonably based on the fact that changes to the host 
network necessary to accommodate the request are not economically reasonable; whether a host provider’s decision 
not to make a roaming arrangement effective was reasonably based on the fact that the requesting provider’s 
provision of mobile data service to its own subscribers has not been done with a generation of wireless technology 
comparable to the technology on which the requesting provider seeks to roam; other special or extenuating 
circumstances.”  Id.
244
Verizon, 740 F.3d at 657.
245
Id. 
246
Id. at 652 (quoting Cellco, 700 F.3d at 548) (internal quotations removed).  
247
Id. at 652.
Federal Communications Commission FCC 14-61
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telecommunications markets, that will promote the deployment of broadband networks; (2) the 
Commission was within its authority to conclude that the “virtuous circle” can be adversely impacted by 
broadband network practices that, over the long term, depress end user demand, which then threatens
broadband deployment; and (3) threats to the open Internet, such as limitations on users to access the 
content of their choice or speak their views freely, are therefore within the authority of the Commission to 
curb. In selecting a legal standard, the Commission not only wishes to avoid subjecting broadband 
networks to common carriage per se, it also wishes to choose a legal standard whose valid adoption 
renders unnecessary the adjudication of any question other than whether the adopted legal standard has 
been violated. This is the distinction between the authority to adopt a standard and its subsequent 
application.
248
119. Are there alternative legal standards, whether in analogous contexts or otherwise 
identified by commenters, that the Commission should consider?  Is there an existing standard that would 
serve a similar purpose to what we propose here and that would prevent the harms to Internet 
openness?
249
  If so, how, and if not, what would any differences be?  Could the Commission modify its 
approach to “reasonable network management” in ways that would establish a more flexible legal 
standard that would not constitute common carriage per se?  Commenters advocating alternative legal 
standards should explain why they are preferable, both in terms of the substantive requirements of the 
alternative standard (such as how they would address providers’ conduct, offerings, and practices) and its 
implementation (such as whether and how it may permit individualized decision-making), and how they 
would protect an open Internet.  And, as to the “commercially reasonable” standard or any other, we seek 
comment on whether there are sources of law or practice the Commission should rely upon in explaining 
the meaning and application of that standard.
120. We also seek comment on how a rule requiring broadband providers to engage in 
commercially reasonable practices with respect to delivery of traffic to and from end users should apply 
in circumstances in which no individualized negotiation occurs between the edge provider and the 
broadband provider.  To cite just a few of many possible examples, consider a start-up VoIP service, a 
politically oriented website with an audience of fewer than 100 unique visitors per day, a social 
networking application narrowly focused on a particular demographic, or peer-to-peer communications 
among individuals.  Not all of those actors may seek to enter into a contract with a broadband provider;
they may simply wish to reach its subscribers.  We seek comment on the impact of this difference on the 
selection and/or application of the general legal standard.
                                                     
248
It is axiomatic that an as-applied challenge to a rule would invalidate an application of the rule, but the rule itself 
may otherwise remain broadly applicable. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985).  Thus, 
assuming the rule is facially sustained by a reviewing court, the Commission would not be required to re-litigate its 
underlying determination that adoption of the rule will promote deployment.  47 U.S.C. § 1302(b). Because the 
commercially reasonable practices rule requires a determination that an entity did not act in a commercially 
reasonable manner, the inquiry is, then, not whether the Commission has authority to adopt the regulation, but 
whether the Commission may enforce the regulation in a particular set of circumstances. See Colo. Right to Life 
Comm., Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007) (holding that an as-applied challenge is limited to 
testing “the application of [a regulation] to the facts of a plaintiff’s concrete case”). For example, the D.C. Circuit 
determined that the Commission’s data roaming rule—the legal standard adopted—was facially valid and within the 
Commission’s authority, but that the application of that standard could still be subject to subsequent challenge.  See 
Cellco, 700 F.3d at 548.
249
For example, Section 628(b) of the Communications Act prohibits cable operators and certain programming 
vendors from engaging in “unfair methods of competition or unfair or deceptive acts or practices, the purpose or 
effect of which is to hinder significantly or to prevent any multichannel video programming distributor from 
providing satellite cable programming or satellite broadcast programming to subscribers or consumers.”  47 U.S.C. 
§ 548(b).  The Commission has established processes for making case-by-case determinations of whether certain 
practices are “unfair” under section 628(b) of the Act.  See 47 C.F.R. § 76.1003.
Federal Communications Commission FCC 14-61
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121. As an alternative to our proposed approach, we seek comment on whether the 
Commission should adopt a different rule to govern broadband providers’ practices to protect and 
promote Internet openness.  As mentioned above, a number of parties have expressed concerns about the 
effect of pay-for-priority agreements on Internet openness.
250
  How can the Commission ensure that the 
rule it adopts sufficiently protects against harms to the open Internet, including broadband providers’
incentives to disadvantage edge providers or classes of edge providers in ways that would harm Internet 
openness?  Should the Commission adopt a rule that prohibits unreasonable discrimination and, if so, 
what legal authority and theories should we rely upon to do so?  If the Commission ultimately adopts a
Title II approach, how should the Commission define the rule in light of the requirements under sections 
201 and 202 of the Act?
251
    
b. Factors to Guide Application of the General Legal Standard
122. Similar to the Commission’s approach in the data roaming context, we propose to 
identify factors the Commission can use to administer the proposed commercially reasonable practices 
standard.
252
  These pre-defined factors would provide guidance to encourage commercially reasonable 
individualized practices and, if disputes arise, provide the basis for the Commission to evaluate whether, 
taking into account the totality of the circumstances on a case-by-case basis as discussed below, a 
particular practice satisfies the enforceable legal standard.  
123. We seek comment on this approach and what factors the Commission should adopt to 
ensure commercially reasonable practices that will protect and promote Internet openness.  We discuss 
below several categories of factors, noting that there is considerable overlap between these categories, and 
that they are not mutually exclusive.  As with the data roaming rule, we tentatively conclude that a review 
of the totality of the circumstances should be preserved through the creation of a “catch all” factor 
                                                     
250
See, e.g., Letter from Emily Sheketoff, ALA, Prudence Adler, ARL, and Diana Obligner, EDUCAUSE, to 
Marlene H. Dortch, Secretary, Federal Communications Commission, GN Docket No. 14-28, at 2 (filed Feb. 13, 
2014) (“Prioritized delivery to end users, if allowed, will favor those content, application and service providers who 
can pay for it.  Paid prioritization and other forms of preferential access will significantly disadvantage libraries, 
education, and other non-profit institutions.” (emphasis omitted)); Future of Music Coalition Comments at 2-3 
(expressing concern about “a future where the Internet becomes a pay-to-play environment where only those with 
the deepest pockets can guarantee delivery of their content”); Letter from Barbara van Schewick, Professor of Law, 
Stanford Law School to Tom Wheeler, Chairman, Federal Communications Commission, GN Docket No. 14-28, 
Attach. A at 5-6 (filed Apr. 25, 2014) (noting the potential for access fees to “significantly increase the costs of 
offering applications, content and services, which would fundamentally change the environment for innovation and 
free speech on the Internet” as well as create “two classes of speakers—those who can pay to receive better 
treatment (e.g., large, established companies or wealthy individuals) and those who cannot afford to do so—often 
individuals and groups with unpopular or new viewpoints, like activists and artists”); Free Press Comments at 6 (“A 
world in which broadband providers charge for priority access to their customers, and discriminate freely against 
any content, service or application they see fit to disfavor, is not a world the Commission should entertain 
creating.”); Letter from Sarah Morris, Senior Policy Council, New America Foundation, to Marlene H. Dortch, 
Secretary, Federal Communications Commission, GN Docket No. 14-28, at 1 (filed May 2, 2014) (expressing “deep 
concern” that “the draft rules would be insufficient to protect consumers from discrimination”).
251
See 47 U.S.C. § 201(b) (prohibiting unjust or unreasonable “charges, practices, [or] classifications); id. at 
§ 202(a) (prohibiting “unjust or unreasonable discrimination in charges, practices, classifications, regulations, 
facilities or services”).
252
Data Roaming Order, 26 FCC Rcd at 5452-53, para. 86.  As discussed above, in invalidating the 2010 no 
unreasonable discrimination rule as common carriage per se, the D.C. Circuit distinguished it from the commercially 
reasonable, factor-based approach adopted by the Commission in its Data Roaming Order and upheld by the court 
in Cellco.  We recognize that there are significant differences between the open Internet and the data roaming 
contexts, including a broader range of open Internet practices at issue and a greater diversity of parties affected by 
such practices.  Thus, while we look to our data roaming approach for guidance, we propose to develop factors 
specific to the open Internet context.
Federal Communications Commission FCC 14-61
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designed to ensure that rules can be applied evenly and fairly in response to changing circumstances and 
that all users have an Internet experience that affords them access to a minimum level of service sufficient 
to protect and promote an open Internet.  Further, we seek comment on providers’ experiences with the 
“commercially reasonable” practices standard in the data roaming context, and on how such experiences 
might inform our thinking as we develop the “commercially reasonable” practices standard for the open 
Internet.
124. Impact on Present and Future Competition.  The Commission has previously observed 
that unfair competitive advantages can jeopardize innovation on the edge and impair otherwise lawful 
delivery of products and services.
253
  For that reason, we seek comment on how we should construct
factors in applying the commercially reasonable legal standard to assess the impact of broadband provider 
practices on present and future competition.  We understand this competition inquiry to extend beyond an 
application of antitrust principles to include, for example, the predicted impact of practices on future 
competition.
125. To what extent should such competition-oriented factors focus on market structure and 
the extent of competition in a given market?  For example, should we consider factors that the 
Commission has used in case-by-case adjudications under section 628(b) of the Act, which proscribes 
certain “unfair methods of competition” by cable operators and certain programming vendors?
254
  Are 
                                                     
253
Open Internet Order, 25 FCC Rcd at 17909-25, 17927-31, paras. 13-34, 38-42.
254
Under section 628(b) of the Act, the Commission has held that determining whether challenged conduct is 
“unfair” requires “balancing the anticompetitive harms of the challenged conduct against the procompetitive 
benefits.”  47 U.S.C. § 548(b).  To find a violation under section 628(b) of the Act, the Commission must make two 
independent judgments.  First, the Commission must determine that the defendant has engaged in unfair methods of 
competition or unfair or deceptive acts or practices.  If the Commission finds unfair acts or practices, then the 
Commission must determine that the unfair acts or practices had the purpose or effect of hindering significantly or 
preventing a multichannel video programming distributor (MVPD) from providing satellite cable programming to 
subscribers or consumers.  See, e.g., Dakota Telecom Inc. v. CBS Broadcasting, File No. 5381-P, Memorandum 
Opinion and Order, 14 FCC Rcd 10500 (Cable Services Bur. 1999).  The Commission has determined that specific 
practices are likely to be prohibited under section 628(b).  For example, the Commission established a rebuttable 
presumption that an MVPD’s withholding of a terrestrially delivered Regional Sports Network (RSN) from another 
MVPD creates the harm targeted by section 628(b), based in part on the finding that such programming is “very 
likely to be both non-replicable and highly valued by consumers.”  Review of the Commission’s Program Access 
Rules and Examination of Programming Tying Arrangements, MB Docket No. 07-198, First Report and Order, 25 
FCC Rcd 746, 782, para. 52 (2010), aff’d in part, Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 703 (D.C. Cir. 
2011).  Under this presumption, the Commission found that MSG/Cablevision’s withholding of HD versions of the 
Madison Square Garden RSN from Verizon was “unfair” and created the harm targeted by section 628(b).  See 
Verizon Tel. Companies & Verizon Servs. Corp. v. Madison Square Garden, L.P. and Cablevision Systems Corp., 
File No. CSR-8185-P, Order, 26 FCC Rcd 13145, 13160-77, paras. 18-41 (Media Bur. 2011), aff’d, Verizon Tel. 
Companies & Verizon Servs. Corp. v. Madison Square Garden, L.P. and Cablevision Systems Corp, File No. CSR-
8185-P, Memorandum Opinion and Order, 26 FCC Rcd 15849, 15852-53, para. 8 (2011) (“Determining whether 
challenged conduct is ‘unfair’ requires balancing the anticompetitive harms of the challenged conduct against the 
procompetitive benefits.”); see also AT&T Servs., Inc. & S. New England Tel. Co. d/b/a AT&T Connecticut v. 
Madison Square Garden, L.P. and Cablevision Systems Corp, File No. CSR-8185-P, Order, 26 FCC Rcd 13206, 
13222-40, paras.19-42 (Media Bur. 2011) (finding that withholding of the HD versions of the MSG and MSG+ 
RSNs from AT&T was an “unfair act”), aff’d, AT&T Servs., Inc. & S. New England Tel. Co. d/b/a AT&T 
Connecticut v. Madison Square Garden, L.P. and Cablevision Systems Corp., File No. CSR-8185-P, Memorandum 
Opinion and Order, 26 FCC Rcd 15849 (2011).  The Commission has also prohibited exclusive arrangements for 
delivering cable television service to multiple dwelling unit (MDU) properties, given that “[e]xclusivity clauses that 
run in favor of cable operators typically are a complete bar to entry into MDUs by fiber-deploying LECs such as 
Verizon, AT&T, and Qwest, as well as [private cable operators].”  Exclusive Service Contracts for Provision of 
Video Services in Multiple Dwelling Units and Other Real Estate Developments, MB Docket No. 07-51, Report and 
Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 20235, 20240 para. 9 (2007), aff’d, Nat’l Cable & 
(continued…)
Federal Communications Commission FCC 14-61
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there other competition-oriented standards in other contexts (including those outside of 
telecommunications) that we should look to for guidance?
126. We propose that the competitive factors should also examine the extent of an entity’s 
vertical integration and/or its relationships with affiliated entities. For example, broadband providers 
sometimes offer an affiliated streaming video service over their broadband network in competition with 
many other third-party broadband and edge providers’ services.
255
  How can we ensure that competition is 
not harmed in such situations?  We note that the no-blocking rule as applied to mobile Internet access 
service specifically prohibits broadband providers from blocking “applications that compete with the 
provider’s voice or video telephony services.”
256
  And the Commission looked to a similar restriction to 
address harms raised by the Comcast-NBCU transaction.
257
  In light of such concerns, we propose to 
adopt a rebuttable presumption that a broadband provider’s exclusive (or effectively exclusive) 
arrangement prioritizing service to an affiliate would be commercially unreasonable. We seek comment 
on this proposal.  
127. More generally, we seek comment on the use of rebuttable presumptions as a tool to 
focus attention on the likely impacts of particular practices.  What source or law, either within the 
Communications Act or in other statutes, would help us craft the creation and use of rebuttable 
presumptions?
258
  Are there particular rebuttable presumptions that should be used, for example, dealing 
with some or all forms of exclusive contracts, or particularized degradation of services?
128. How can the Commission ensure that parties are acting in a commercially reasonable 
manner without foreclosing the creation of pro-competitive opportunities through certain forms of price 
discrimination or exclusivity agreements?  Should we develop factors modeled in part after those that the 
Commission uses in determining whether an exclusive contract between a vertically integrated cable 
operator and cable-programming vendor would serve the public interest?
259
  Should the Commission 
adopt a rebuttable presumption that broadband provider conduct that forecloses rivals (of the provider or 
its affiliates) from the competing marketplace is commercially unreasonable?
(Continued from previous page)                                                            
Telecomms. Ass’n v. FCC, 567 F.3d 659 (D.C. Cir. 2009); see also 15 U.S.C. § 18 (“[T]he effect of such acquisition 
may be to substantially lessen competition . . . .”). 
255
For example, Comcast is a co-owner of the online video website Hulu.com.  See About, Hulu.com, 
http://www.hulu.com/about (last visited Apr. 10, 2014); see also Applications of Comcast Corporation, General 
Electric Company and NBC Universal, Inc. For Consent to Assign Licenses and Transfer Control of Licensees, MB 
Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4268, para. 78 (2011) (“We conclude that 
Comcast-NBCU will have the incentive and ability to discriminate against, thwart the development of, or otherwise 
take anticompetitive actions against [online video distributors (OVDs)].”).  
256
See supra Section III.D.4.
257
See Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. For Consent to 
Assign Licenses and Transfer Control of Licensees, MB Docket No. 10-56, Memorandum Opinion and Order, 
26 FCC Rcd 4238, 4275, para. 94 (2011) (“[N]either Comcast nor Comcast-NBCU shall prioritize affiliated Internet 
content over unaffiliated Internet content.”).
258
U.S. Dept. of Justice and Federal Trade Commission, Horizontal Merger Guidelines § 5.3 (2010), 
http://www.justice.gov/atr/public/guidelines/hmg-2010.html#5c.
259
See 47 C.F.R. § 76.1002(c)(4).  In determining whether a cable operator may enter into an exclusive contract with 
certain types of affiliated programming vendors, the Commission considers the following factors regarding the 
effect of the exclusive contract on the distribution of video programming in areas served by the cable operator: 
(i) the effect on the development of competition in local and national multichannel video programming distribution 
markets; (ii) the effect on competition from multichannel video programming distribution technologies other than 
cable; (iii) the effect on the attraction of capital investment in the production and distribution of new satellite-
delivered cable programming; (iv) the effect on diversity of programming in the multichannel video programming 
distribution market; and (v) the duration of the exclusive contract.  Id.  
Federal Communications Commission FCC 14-61
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129. Impact on Consumers. In addition to the competitive factors, the Commission proposes 
to adopt factors to examine the extent to which broadband providers’ practices could harm consumers.  In 
the Open Internet Order, the Commission looked to, among other things, the extent of transparency and 
end-user control in assessing whether a practice is unreasonably discriminatory.
260
  We believe these 
factors would likewise be relevant to assessing whether a practice is commercially reasonable.  What 
continued role does the existing or enhanced transparency rule have in ensuring that consumers are 
receiving correct information from broadband providers and not being misled?
130. We believe that consumers of broadband access service should have the ability to 
exercise meaningful choices.  How can we factor consumer choice into our analysis of what is 
commercially reasonable? Should the Commission look for guidance to section 628 of the Act, which 
makes it unlawful for cable operators and their affiliated satellite cable programming vendors to engage in 
“unfair or deceptive acts or practices” with certain purposes and effects?
261
  
131. Impact on Speech and Civic Engagement.  The open Internet serves as a critical platform 
for speech and civic engagement.  As noted above, the ability of citizens and content providers to use this 
open platform to communicate with one another and express their views to a wide audience at very low 
costs drives further Internet use, consumer demand, and broadband investment and deployment.
262
  We 
therefore propose to adopt a factor or factors in applying the commercially reasonable standard that assess 
the impact of broadband provider practices on free exercise of speech and civic engagement.  
132. Technical Characteristics.  We also propose to examine the relevant technical 
characteristics associated with broadband providers’ practices.  In the Data Roaming Order, for example, 
the Commission looked to the technical characteristics of the service at issue, including the technical 
feasibility of a requested service as well as the technical compatibility of providers’ networks.
263
  We seek 
comment on how the Commission should consider such technical characteristics in assessing whether a 
broadband provider’s practice is commercially reasonable.  The application of the legal standard to 
satellite Internet access service presents one example.  How should the Commission account for the 
technical differences between satellite and terrestrial broadband services when examining commercially 
reasonable behavior for satellite broadband providers?  
133. “Good Faith” Negotiation.  The Commission has imposed good faith negotiation 
requirements in a variety of contexts.  For example, the Commission explicitly requires television 
broadcasters and multichannel video programming distributors (MVPDs) to negotiate retransmission 
consent agreements in good faith.
264
   The Commission also mandated good faith negotiations for dealings 
between certain spectrum licensees.
265
  Would adopting a similar framework for evaluating negotiations 
                                                     
260
Open Internet Order, 25 FCC Rcd at 17944, para. 70 (explaining that “[d]ifferential treatment of traffic is more 
likely to be reasonable the more transparent to the end user that treatment is”).
261
47 U.S.C. § 548(b).
262
See supra Section III.A.1; Open Internet Order, 25 FCC Rcd at 17912-15, paras. 15-18.
263
Data Roaming Order, 26 FCC Rcd at 5452-53, para. 86.
264
See, e.g., Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 
Reciprocal Bargaining Obligation, MB Docket No. 05-89, Report and Order, 20 FCC Rcd 10339, 10340-41, 10345-
46, paras. 3-4, 6, 15 (2005); Implementation of Section 207 of the Satellite Home Viewer Extension and 
Reauthorization Act of 2004 Reciprocal Bargaining Obligation, MB Docket No. 05-89, Notice of Proposed 
Rulemaking, 20 FCC Rcd 5448, paras. 3-4 (2005); Implementation of the Satellite Home Viewer Improvement Act of 
1999; Retransmission Consent Issues: Good Faith Negotiation and Exclusivity, CS Docket No. 99-363, First Report 
and Order, 15 FCC Rcd 5445 (2000); Amendment of the Commission’s Rules Related to Retransmission Consent, 
MB Docket No. 10-71, Report and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 3351 (2014) 
(2014 Retransmission Order).
265
See, e.g., Gemini International, Inc. and Sprint Nextel, WT Docket No. 02-55, Memorandum Opinion and Order, 
22 FCC Rcd 6651, 6655-56, paras. 15-16 (2007); Petition for Declaratory Ruling Concerning the Requirement of 
(continued…)
Federal Communications Commission FCC 14-61
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between parties in the open Internet context serve the public interest, convenience, and necessity? How 
should such a “good faith” test be applied where parties do not seek to enter into contractual relationships 
with each other?
134. Industry Practices. How, if at all, should the fact that conduct is an industry practice 
impact the application of the “commercially reasonable” rule? What should be treated as an “industry 
practice”? For example, should that term be limited to express standards adopted by standards-setting 
organizations or similar entities? If so, should the make-up or processes used by such a standards-setting 
organization be considered? If not, how should the existence of an “industry practice” be effectively 
established for purposes of the application of the “commercially reasonable” rule, and how should the 
Commission best evaluate potential harms to competition arising from coordinated conduct in a market 
with a limited number of participants?
266
135. Other Factors.  We seek comment on any additional factors the Commission should 
consider in assessing whether a particular practice or set of practices by a broadband provider is 
commercially reasonable, given the importance of preventing harms to an open Internet.  Are there other 
factors that the Commission adopted in the Data Roaming Order that we should incorporate here?
267
  
How can the Commission best include a factor to capture special or extenuating circumstances to ensure 
that it can take into account the totality of the circumstances, particularly given the rapid evolution of the
Internet marketplace and technology?  
c. Case-by-Case Evaluations for Commercial Reasonableness
136. As discussed,
268
we tentatively conclude that we will adopt a case-by-case approach,
considering the totality of the circumstances, when analyzing whether conduct satisfies the proposed
commercially reasonable legal standard, or another legal standard ultimately adopted.  We believe that, in 
conjunction with the factors listed above, this approach will provide the advantage of certainty and 
guidance to broadband providers and edge providers—particularly smaller entities that might lack 
experience dealing with broadband providers—while also allowing parties flexibility in their 
individualized dealings.  We seek comment on whether there is another avenue or mechanism we should 
use when evaluating commercial reasonableness.
3. Potential Conduct That Is Per Se Commercially Unreasonable 
137. In Southwestern Cable, the Supreme Court concluded that a Commission requirement 
that cable systems carry local broadcast signals did not constitute common carriage even though the 
Commission’s rule applied to all cable systems in defined circumstances. As the Supreme Court later 
noted, that holding “was limited to remedying a specific perceived evil [that] did not amount to a duty to 
hold out facilities indifferently for public use.”
269
In Verizon, the D.C. Circuit likewise explained that the 
Southwestern Cable regulation “imposed no obligation on cable operators to hold their facilities open to 
the public generally, but only to certain broadcasters if and when cable operators acted in ways that might 
harm those broadcasters.”
270
Thus, consistent with Supreme Court precedent and the Verizon decision, 
the Commission may be able to identify specific practices that do not satisfy the commercially reasonable 
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Good Faith Negotiations Among Economic Area Licensees and Incumbent Licensees in the Upper 200 Channels of 
the 800 MHz Band, PR Docket No. 93-144, Memorandum Opinion and Order, 16 FCC Rcd 4882, 4884, para. 4 
(2001).
266
See infra para. 176; Open Internet Order, 25 FCC Rcd at 17946, para. 74.
267
See supra n.243.
268
See supra para. 61; see also infra Section III.H.
269
FCC v. Midwest Video Corp., 440 U.S. 689, 706 n.16 (1979).
270
Verizon, 740 F.3d at 656.
Federal Communications Commission FCC 14-61
49
legal standard.  For example, we note that the data roaming rule upheld by the D.C. Circuit’s Cellco
decision states that “[c]onduct that unreasonably restrains trade . . . is not commercially reasonable.”
271
Similarly, the Commission recently concluded that certain joint activities between certain television 
stations, which are not regulated as common carriers, in the negotiation of retransmission consent fees are 
a per se violation of the requirement of “good faith” negotiation.
272
Are there any practices that, 
consistent with the Verizon court’s reasoning, could be viewed as per se commercially unreasonable? 
138. Some have suggested that the Commission go even beyond the requirements of the Open 
Internet Order to impose flat bans on pay-for-priority service.
273
  We seek comment on these suggestions, 
including whether all pay-for-priority practices, or some of them, could be treated as per se violations of 
the commercially reasonable standard or under any other standard based on any source of legal 
authority.
274
  We emphasize that section 706 could not be used to reach some conduct under this judicially
recognized approach to circumvent the principle that the proposed rules will not, in any circumstances, 
constitute common carriage per se. If the Commission were to ultimately rely on a source of authority 
other than section 706 to adopt a legal standard for broadband provider practices, such as Title II, we seek 
comment on whether and, if so, how we should prohibit all, or some, pay-for-priority arrangements, 
consistent with our authority, to protect and promote Internet openness. 
4. Potential Safe Harbors
139. Similar to the approach of identifying practices ex ante that would not satisfy the 
commercially reasonable legal standard, the Commission may be able to identify specific services that 
would be treated separately from the application of the commercially reasonable legal standard.  We seek 
comment on this approach and how the services below should be considered under such an approach.  
140. Application to Mobile Broadband. The Commission chose not to apply its no 
unreasonable discrimination rule to mobile broadband providers in 2010 based on considerations 
including the rapidly evolving nature of mobile technologies, the increased amount of consumer choice in 
mobile broadband services, and operational constraints that put greater pressure on the concept of 
reasonable network management for mobile broadband services.
275
We have tentatively concluded that 
we will continue that approach in the proposed rules.
276
Alternatively, should the Commission account 
for different characteristics of mobile service as a factor in its application of the commercially reasonable 
standard, subject to mobile providers’ reasonable network management?  How would maintaining our 
previous approach for mobile broadband affect end users across different demographic groups, including 
end users who rely solely on mobile broadband for Internet access?
277
141. Non-exclusive, non-affiliated agreements.  AT&T has suggested that the Commission
exclude from its review of particular practices any agreement between a broadband provider and an edge
provider if the agreement is not exclusive and if the edge provider is not an affiliate of the broadband 
provider. AT&T explains that subjecting broadband providers to case-by-case scrutiny in such cases 
“would unnecessarily impede efficient and pro-consumer arms-length commercial dealings.”
278
We seek 
                                                     
271
Data Roaming Order, 26 FCC Rcd at 5433, para. 45.
272
See generally 2014 Retransmission Order, 29 FCC Rcd 3351.
273
See Adam Clark Estes, WSJ: The FCC’s New Net Neutrality Rules Will OK Pay-to-Play, Gizmodo.com (Apr. 23, 
2014), http://gizmodo.com/wsj-the-fccs-new-net-neutrality-rules-will-ok-pay-to-p-1566738354. 
274
See supra Section III.E.3.
275
See Open Internet Order, 25 FCC Rcd at 17956-59, paras. 93-98.
276
See supra para. 62. 
277
See supra n.228. 
278
AT&T Comments at 3. AT&T further explains that this is because, in these situations, the “ISP is neither 
favoring its own content, applications, or services nor providing a service on an exclusive basis.” Id. at 12.
Federal Communications Commission FCC 14-61
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comment on whether this approach should be adopted to limit the scope of the commercially reasonable 
standard and whether it could be made consistent with the protections afforded by the rule.
F. Legal Authority
142. In this Notice, we propose to adopt rules to protect and promote the open Internet.  For 
the reasons set forth below, we believe we have ample authority to do so.
279
  We propose that the 
Commission exercise its authority under section 706, consistent with the D.C. Circuit’s opinion in 
Verizon v. FCC, to adopt our proposed rules.  We also seek comment on the nature and the extent of the 
Commission’s authority to adopt open Internet rules relying on Title II, and other possible sources of 
authority, including Title III.  Additionally, we seek comment on the Commission's authority under any of 
the legal theories discussed below to address any transition or implementation issues associated with any 
open Internet rules adopted in this proceeding, such as the effect on existing agreements.
280
1. Section 706
143. We seek comment on our authority under section 706.
281
  We interpret sections 706(a) 
and (b) as independent and overlapping grants of authority that give the Commission the flexibility to 
encourage deployment of broadband Internet access service through a variety of regulatory methods, 
including removal of barriers to infrastructure investment and promoting competition in the 
telecommunications market, and, in the case of section 706(b), giving the Commission the authority to act 
swiftly when it makes a negative finding of adequate deployment.
282
  The rules we propose today would 
be authorized by sections 706(a) and (b) because they would “encourage the deployment” of advanced 
telecommunications capability by promoting competition in the telecommunications market and removing 
barriers to infrastructure investment.
283
  We also seek comment on the relevant differences between 
                                                     
279
For an in-depth description of the factual basis for the adoption of rules, see supra Sections III.A-E.
280
When implementing requirements in other contexts the Commission has, for example, addressed the impact on 
preexisting agreements. See, e.g., Promotion of Competitive Networks in Local Telecommunications Markets, 
WT Docket No. 99-217, Report and Order, 23 FCC Rcd 5385, 5387-91, paras. 8-13 (2008) (prohibiting carriers 
from entering into contracts that would make them the exclusive provider of telecommunications services in 
residential multiple tenant environments and that carriers may not enforce existing exclusivity contracts); Exclusive 
Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments, 
MB Docket No. 07-51, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 20235 (2007) 
(prohibiting the enforcement of existing exclusivity clauses and the execution of new ones by cable operators and 
others subject section 628 in the context of multiple dwelling units (MDUs) and other real estate developments); see 
also, e.g., Amendment of the Commission's Rules Related to Retransmission Consent, MB Docket No. 10-71, Report 
and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 3351, 3391, para. 66 (2014) (seeking comment 
on “how elimination of the exclusivity rules would affect existing exclusivity contracts and broadcasters’ ability to 
enforce those contracts”).
281
Section 706 of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 706, 110 Stat. 56, 153 (1996) (1996 
Act), as amended in relevant part by the Broadband Data Improvement Act (BDIA), Pub. L. No. 110-385, 122 Stat. 
4096 (2008), is now codified in Title 47, Chapter 12 of the United States Code.  See 47 U.S.C. § 1301 et seq. 
282
Verizon, 740 F.3d at 637 (“The question, then, is this: Does the Commission’s current understanding of section 
706(a) as a grant of regulatory authority represent a reasonable interpretation of an ambiguous statute? We believe it 
does.”); id. at 641 (“Contrary to Verizon’s arguments, we believe the Commission has reasonably interpreted section 
706(b) to empower it to take steps to accelerate broadband deployment if and when it determines that such 
deployment is not reasonable and timely.”); Open Internet Order, 25 FCC Rcd at 17968-72, paras. 117-23 
(articulating a theory of authority under section 706(a)-(b)); Public Knowledge and Common Cause Comments at 
27-28. 
283
See supra Sections III.C.2; III.D.2; III.E.2.
Federal Communications Commission FCC 14-61
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sections 706(a) and (b) and how, if at all, those differences should impact our exercise of authority 
here.
284
  
144. To the extent that we rely on our authority under section 706(b), we seek comment on 
how we should treat the existence of and the findings in the Commission’s Broadband Progress Reports 
for the purposes of this proceeding.  Could and should the Commission incorporate findings that satisfy 
section 706(b) in this proceeding?  Finally, we seek comment on the extent to which the disparity between 
metropolitan areas and rural deployment of broadband or within metropolitan areas should impact our 
conclusions as to whether advanced telecommunications capability is being reasonably and timely 
deployed.
145. We also seek comment on how to construe the specific terms and definitions in section 
706.  For example, “advanced telecommunications capability” is defined “without regard to any 
transmission media or technology, 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.”
285
  It is clear that broadband Internet access service is such “advanced 
telecommunications capability,” but we also seek comment on what other broadband-enabled services 
may fall within the definition of “advanced telecommunications capability.”
286
  Should the Commission 
interpret the term “advanced telecommunications capability” to require that certain practices accompany a 
broadband provider’s deployment to ensure that end users receive “high-speed, switched, broadband 
telecommunications capability that enables users to originate and receive high-quality voice, data, 
graphics, and video telecommunications?”  In addition, we note that Congress did not define 
“deployment.”  We believe Congress intended this term to be construed broadly, and thus, consistent with 
precedent, we have interpreted it to include the extension of networks as well as the extension of the 
capabilities and capacities of those networks.
287
  
                                                     
284
There are significant differences between the authorities granted in each provision.  For example, while both 
section 706(a) and (b) permit the Commission to enact measures that promote competition in the 
telecommunications market, section 706(b) permits the Commission to act by promoting competition in the 
“telecommunications market” while section 706(a) limits the Commission to promoting competition in the “local 
telecommunications market.” Also, while section 706(a) gives the Commission general authority to encourage the 
deployment of broadband regardless of findings under section 706(b), section 706(b) gives the Commission 
authority to take “immediate action.”  Compare 47 U.S.C. § 1302(a) (“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.”), with 47 U.S.C. § 1302(b) (“If the Commission[] 
determin[es] [that advanced telecommunications capability is not being deployed to all Americans in a reasonable 
and timely fashion], 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.”). 
285
47 U.S.C. § 1302(d)(1).
286
See Open Internet Order, 25 FCC Rcd at 17968, para. 117 (“‘[A]dvanced telecommunications capability,’ as 
defined in the statute, includes broadband Internet access.”); National Broadband Plan for our Future, GN Docket 
No. 09-51, Notice of Inquiry, 24 FCC Rcd 4342, 4390, Appx. para. 14 (2009) (stating that “advanced 
telecommunications capability” includes broadband Internet access); Inquiry Concerning the Deployment of 
Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, CC Docket No. 
98-146, Report, 14 FCC Rcd 2398, 2400, paras. 1, 20 (1999) (stating that section 706 addresses “the deployment of 
broadband capability”).  Even when broadband Internet access is provided as an “information service” rather than a 
“telecommunications service,” see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 977-
78 (2005), it involves “telecommunications.”  47 U.S.C. § 153(24).
287
See Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a 
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the 
Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, GN Docket No. 11-121, 
(continued…)
Federal Communications Commission FCC 14-61
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146. In section 230(b) of the Communications Act, Congress also set forth statutory 
“polic[ies] of the United States”:  to “promote the continued development of the Internet,” to promote 
“technologies which maximize user control over what information is received” over the Internet, and to 
“preserve the vibrant and competitive free market that presently exists for the Internet, unfettered by 
Federal or State regulation.”
288
  We continue to believe the Commission’s interpretation of section 706 is 
bolstered by these congressional policies.
289
  We seek comment on how the Commission should read 
section 230(b) in exercising its section 706 authority.
147. We also seek comment generally on how the court’s decision in Verizon v. FCC should 
inform our exercise of legal authority.
290
  The D.C. Circuit upheld the Commission’s interpretation of its 
authority under section 706,
291
concluding that the factual predicate that the Commission had laid 
justifying its regulations was reasonable and that such a factual predicate was reasonably linked to the 
Commission’s exercise of authority.
292
  However, because the court determined that the Commission’s 
no-blocking and anti-discrimination rules impermissibly regulated broadband providers as common 
carriers, the court vacated those rules, and remanded for further proceedings consistent with the 
opinion.
293
  We seek comment generally on how the court’s Verizon decision should impact our exercise 
of authority here.
294
  Are there principles raised in Judge Silberman’s separate opinion concurring in part 
and dissenting in part that are relevant to our exercise of authority as to the new rules proposed, or upon 
which we otherwise seek comment, here?
2. Title II
148. We seek comment on whether the Commission should rely on its authority under Title II 
of the Communications Act,
295
including both (1) whether we should revisit the Commission’s 
classification of broadband Internet access service as an information service and (2) whether we should 
(Continued from previous page)                                                            
Report, 27 FCC Rcd 10342, 10363, para. 27 (2012) (2012 Eighth Broadband Progress Report) (“Congress intended 
the annual section 706(b) inquiries to be broader than a narrow examination of  physical network deployment . . . 
Accordingly, our inquiry includes an assessment of a variety of factors indicative of broadband availability, such as 
broadband cost, quality, and adoption by consumers.”).  But see CEA Comments at 4.
288
47 U.S.C. §§ 230(b)(1), (3) (emphasis added).
289
See Open Internet Order, 25 FCC Rcd at 17967, para. 116.
290
See Public Knowledge and Common Cause Comments at 27-28 (discussing the Commission’s broad authority 
under section 706 pursuant to Verizon v. FCC). But see generally Full Service Network Comments (arguing that the 
D.C. Circuit’s decision was fatally flawed for a number of reasons). 
291
Verizon, 740 F.3d at 635 (“[S]ection 706 of the 1996 Telecommunications Act . . . furnishes the Commission 
with the requisite affirmative authority to adopt [open Internet] regulations.”).
292
Id. at 644 (“[T]he Commission’s prediction that the Open Internet Order regulations will encourage broadband 
deployment is, in our view, both rational and supported by substantial evidence. . . . [T]he Commission has more 
than adequately supported and explained its conclusion that edge-provider innovation leads to the expansion and 
improvement of broadband infrastructure.”). But see id. at 665 (Silberman J., concurring in part and dissenting in 
part) (“[T]he Commission’s failure to conduct a market power analysis is fatal to its attempt to regulate, because it 
means that there is inadequate evidence to support the lynchpin of the Commission’s economic theory.”).
293
Id. at 659 (“[A]lthough we reject Verizon’s challenge to the Open Internet Order’s disclosure rules, we vacate 
both the anti-discrimination and the anti-blocking rules.”).
294
See generally id.
295
See, e.g., Cogent Comments at 2 (the Commission should use Title II authority); Voices for Internet Freedom 
Comments at 1 (same); Vonage Comments at 2 (Title II authority and authority under section 706 are 
complementary); Public Knowledge and Common Cause Comments at 15-18 (section 706 is insufficient to adopt 
strong open Internet rules, but Title II gives the Commission requisite authority).  But see, e.g., American Action 
Forum Comments at 9 (the Commission should take Title II reclassification off the table). 
Federal Communications Commission FCC 14-61
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separately identify and classify as a telecommunications service a service that “broadband providers . . . 
furnish to edge providers.”
296
  For either of these possibilities, we seek comment on whether and how the 
Commission should exercise its authority under section 10 (or section 332(c)(1) for mobile services) to 
forbear from specific obligations under the Act and Commission rules that would flow from the 
classification of a service as telecommunications service.      
149. Title II—Revisiting the Classification of Broadband Internet Access Service.  In a series 
of decisions beginning in 2002, the Commission has classified broadband Internet access service offered 
over cable modem,
297
DSL and other wireline facilities,
298
wireless facilities,
299
and power lines
300
as an 
information service, which is not subject to Title II and cannot be regulated as common carrier service.
301
  
In 2010, following the D.C. Circuit’s Comcast decision, the Commission issued a Notice of Inquiry (2010 
NOI) that, among other things, asked whether the Commission should revisit these decisions and classify 
a telecommunications component service of wired broadband Internet access service as a 
“telecommunications service.”
302
  The Commission also asked whether it should similarly alter its 
approach to wireless broadband Internet access service, noting that section 332 requires that wireless 
services that meet the definition of “commercial mobile service”
303
be regulated as common carriers 
                                                     
296
Verizon, 740 F.3d at 656.
297
See Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable 
Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,
GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC
Rcd 4798, 4824, para. 41 (2002) (Cable Modem Declaratory Ruling), aff’d sub nom. Nat’l Cable & Telecomms. 
Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
298
Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 
02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed 
Rulemaking, 20 FCC Rcd 14853, 14863-65, 14909-12, paras. 14-17, 103-06 (2005).
299
Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket 
No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901, 5909-10, 5912-14, paras. 19-26, 29-33 (2007).
300
United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband over 
Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and 
Order, 21 FCC Rcd 13281 (2006).
301
47 U.S.C. § 153(24) (“The term ‘information service’ means the offering of a capability for generating, 
acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via 
telecommunications, and includes electronic publishing, but does not include any use of any such capability for the 
management, control, or operation of a telecommunications system or the management of a telecommunications 
service.”); 47 U.S.C. § 153(50) (“The term ‘telecommunications’ means the 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.”); 47 U.S.C. § 153(53) (“The term ‘telecommunications service’ means the offering of 
telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly 
to the public, regardless of the facilities used.”); 47 U.S.C. § 153(51) (“A telecommunications carrier shall be treated 
as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services 
. . . .”).
302
Framework for Broadband Internet Service, GN Docket No. 10-127, Notice of Inquiry, 25 FCC Rcd 7866 (2010) 
(2010 NOI).  Specifically, the Commission sought comment on whether to classify as a telecommunications service 
“Internet connectivity,” which it defined as “the functions that ‘enable [end users] to transmit data communications 
to and from the rest of the Internet.’” Id. at 7894, para. 64.  The docket opened by the 2010 NOI remains open.  To 
ensure that it remains current, we hereby direct the Wireline Competition Bureau to issue a public notice to refresh 
the record in that proceeding including the inquiries contained herein.
303
Commercial mobile service is defined “as any mobile service (as defined in section 153 of this title) that is 
provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible 
users as to be effectively available to a substantial portion of the public, as specified by regulation by the 
Commission.”  47 U.S.C. § 332(d)(1).  The Commission has defined “commercial mobile radio service” or “CMRS” 
(continued…)
Federal Communications Commission FCC 14-61
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under Title II.
304
  In response, the Commission received substantial comments on these issues.  We now 
seek further and updated comment on whether the Commission should revisit its prior classification 
decisions and apply Title II to broadband Internet access service (or components thereof).  How would 
such a reclassification approach serve our goal to protect and promote Internet openness?  What would be 
the legal bases and theories for particular open Internet rules adopted pursuant to such an approach?  
Would reclassification and applying Title II for the purpose of protecting and promoting Internet 
openness impact the Commission’s overall policy goals and, if so, how?   
150. What factors should the Commission keep in mind as it considers whether to revisit its 
prior decisions?  Have there been changes to the broadband marketplace that should lead us to reconsider 
our prior classification decisions?  To what extent is any telecommunications component of that service 
integrated with applications and other offerings, such that they are “inextricably intertwined” with the 
underlying connectivity service?
305
  Is broadband Internet access 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?”
306
  If not, should the Commission compel the offering of such 
functionality on a common carrier basis even if not offered as such?  For mobile broadband Internet 
access service, does that service fit within the definition of “commercial mobile service”?
307
We also note 
that on May 14, 2014, Representative Henry Waxman, Ranking Member of the Committee on Energy and 
Commerce of the U.S. House of Representatives, sent a letter to Chairman Wheeler proposing an 
approach to protecting the open Internet whereby the Commission would proceed under section 706 but 
use Title II as a “backstop authority.”
308
  We seek comment on the viability of that approach.
151. Title II—Classification of the Broadband Providers’ Service to Edge Providers.  Separate 
from the reclassification of “broadband Internet access service,” we seek comment on how the 
Commission should consider broadband providers’ service to edge providers and whether that service (or 
some portion of it) is subject to Title II regulation.  As mentioned above, in Verizon, the D.C. Circuit 
stated that “broadband providers furnish a service to edge providers, thus undoubtedly functioning as 
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as a list of “mobile services that shall be treated as common carriage services and regulated as commercial mobile 
radio services . . . pursuant to Section 332 of the Communications Act.”  47 C.F.R. § 20.9(a).
304
2010 NOI, 25 FCC Rcd at 7907-09, paras. 101-05.
305
Brand X, 545 U.S. at 978.
306
47 U.S.C. § 153(46).  A key feature of whether a provider is engaged in common carriage is if it “make[s] 
capacity available to the public indifferently”; it can also be compelled to offer service on a common carrier basis if 
“the public interest requires common carrier operation of the proposed facility.” Cable & Wireless PLC, File No. 
SCL-96-005, Memorandum Opinion and Order, 12 FCC Rcd 8516, 8522, paras. 14-15 (1997); see also U.S. 
Telecom Ass’n v. FCC, 295 F.3d 1326, 1329 (D.C. Cir. 2002) (“[C]ommon carrier status turns on: (1) whether the 
carrier ‘holds himself out to serve indifferently all potential users’; and (2) whether the carrier allows ‘customers to 
transmit intelligence of their own design and choosing.’” (citation omitted)); Virgin Islands Tel. Co. v. FCC, 198 
F.3d 921 (D.C. Cir. 1999); Nat’l Ass’n of Regulatory Utility Comm’rs v. FCC, 533 F.2d 601, 608-09 (D.C. Cir. 
1976); Nat’l Ass’n of Regulatory Utility Comm’rs v. FCC, 525 F.2d 630, 642 (D.C. Cir. 1976). Whether a provider 
has made a common carriage offering “must be determined on a case-by-case basis.” Bright House Networks, LLC,
et al. v. Verizon California, Inc., et al., File No. EB-08-MD-002, Memorandum Opinion and Order, 23 FCC Rcd 
10704, 10717-19, paras. 37-40 (2008) (finding that carriers offered common carriage service despite lacking a tariff, 
website posting, or any other advertisement, because providers self-certified themselves as common carriers, entered 
into publicly available interconnection agreements, and obtained state certificates of public convenience and 
necessity), aff’d sub nom. Verizon Cal., Inc. v. FCC, 555 F.3d 270, 275-76 (D.C. Cir. 2009). 
307
See 47 U.S.C. § 332; 47 C.F.R. § 20.3.
308
Letter from Rep. Henry Waxman, Ranking Member, Committee on Energy and Commerce, to Thomas Wheeler, 
Chairman, Federal Communications Commission at 2 (May 14, 2014), http://democrats.energycommerce.house.gov
/sites/default/files/documents/Wheeler-Title-II-Backup-Option-2014-5-14.pdf.  
Federal Communications Commission FCC 14-61
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edge providers’ ‘carriers.’”
309
  We understand such service to include the flow of Internet traffic on the 
broadband providers’ own network, and not how it gets to the broadband providers’ networks.  The 
Commission in the Open Internet Order understood the 2010 rules to regulate “broadband Internet access 
service,” which the Commission classified as an information service.  That service, however, is by 
definition a “mass-market retail service” providing the capability to send and receive data from “all 
Internet end points.”
310
  Does the “service” contemplated by the court between broadband providers and 
edge providers fit that definition?  We seek comment on whether and, if so how, the Commission should 
separately identify and classify a broadband service that is furnished by broadband providers’ to edge 
providers in order to protect and promote Internet openness.  
152. Some have made proposals suggesting that the Commission could apply Title II to such 
services to achieve our open Internet objectives.  For example, on May 5, 2014, Mozilla filed a petition 
requesting that the Commission (1) recognize remote delivery services in terminating access networks; 
(2) classify these services as “telecommunications services” under Title II of the Act; and (3) forbear from 
any “inapplicable or undesirable provisions of Title II” for such services.
311
  Mozilla states that, unlike the 
end-user facing broadband services the Commission has classified as information services, the
Commission has not classified the service that broadband Internet providers to remote endpoints, 
particularly to entities not in privity with the broadband provider.
312
  These services, Mozilla argues, can 
and should be classified as telecommunications services, subject to whatever Title II regulations the 
Commission deems appropriate.
313
  Similarly, academics from Columbia University have submitted an 
alternate proposal to classify Internet-facing services that a broadband provider offers.
314
  This theory 
would split broadband Internet access service into two components:  first, the subscriber’s “request [for] 
data from a third-party provider; and second, the content provider’s response to the subscriber.”
315
  The 
proposal would classify the latter “sender-side” traffic, sent in response to a broadband provider’s 
customer’s request as a telecommunications service, subject to Title II.
316
  According to the proposal, this 
is a stand-alone offer of telecommunications—transmission between points specified by the end-user.
317
  
We seek comment on these proposals and other suggestions for how the Commission could identify and 
classify such services and apply Title II to achieve our goals of protecting and promoting Internet 
openness.
153. Title II—Forbearance.  If the Commission were to reclassify broadband Internet access 
service as described above or classify a separate broadband service provided to edge providers as a 
“telecommunications service,” such a service would then be subject to all of the requirements of the Act 
and Commission rules that would flow from the classification of a service as a telecommunications 
service or common carrier service.  Should the Commission take such an approach, we seek comment on 
the extent to which forbearance from certain provisions of the Act or our rules would be justified in order 
                                                     
309
Verizon, 740 F.3d at 653.
310
See 47 C.F.R. § 8.11(a).
311
Mozilla, Petition to Recognize Remote Delivery Services in Terminating Access Networks and Classify Such 
Services as Telecommunications Services Under Title II of the Communications Act, GN Docket Nos. 09-91, 14-28, 
WC Docket No. 07-52, at ii, 10-13 (filed May 5, 2014) (Mozilla Petition).
312
Id. at 6-9.
313
Id. at 10-13.
314
Letter from Tim Wu and Tejas Narechania, Columbia University to Marlene H. Dortch, Secretary, Federal 
Communications Commission, GN Docket No. 14-28 (filed Apr. 14, 2014) (Wu & Narechania Ex Parte Letter).
315
Id., Attach. at 13.
316
Id., Attach. at 13-14.
317
Id. Attach. at 15; 47 U.S.C. § 153(50).
Federal Communications Commission FCC 14-61
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to strike the right balance between minimizing the regulatory burden on providers and ensuring that the 
public interest is served.
318
  For mobile broadband services, we seek comment on whether and how the 
Commission should apply section 332(c)(1) in addition to section 10 forbearance.
319
154. In the 2010 NOI, the Commission contemplated that, if it were to classify the Internet 
connectivity component of broadband Internet access service, it would forbear from applying all but a 
handful of core statutory provisions—sections 201, 202, 208, and 254—to the service.
320
  In addition, the 
Commission identified sections 222 and 255 as provisions that could be excluded from forbearance, 
noting that they have “attracted longstanding and broad support in the broadband context.”
321
  We 
received considerable comment in that proceeding and seek further and updated comment.
322
  
Commenters should list and explain which provisions should be exempt from forbearance and which 
should receive it in order to protect and promote Internet openness.  Commenters should also detail which 
services should receive forbearance, list the provisions from which they believe the Commission should 
forbear, and provide justification for the forbearance.  Commenters should also define the relevant 
geographic and product markets in which the services or providers should receive forbearance.  
155. For mobile broadband services, we also seek comment on the extent to which forbearance 
should apply, if the Commission were to classify mobile broadband Internet access service as a CMRS 
service subject to Title II.  The 2010 NOI also asked whether the Commission could and should apply 
section 332(c)(1) as well as section 10 in its forbearance analysis for mobile services.
323
  We received 
considerable comment in that proceeding and seek further and updated comment here.   
3. Other Sources of Authority
156. Title III.  We further seek comment on the Commission’s authority to adopt open Internet 
rules for mobile broadband services under Title III of the Communications Act.  The Supreme Court has 
found that Title III endows the Commission with “expansive powers” and a “comprehensive mandate to 
                                                     
318
Section 10 of the Communications Act provides that the Commission shall forbear from applying a provision of 
the Act or the Commission’s rules to a telecommunications carrier or telecommunications service (or a class thereof)  
if:  (1) enforcement of that provision is not necessary to ensure just, reasonable, and non-discriminatory practices; 
(2) enforcement is not necessary to protect consumers; and (3) forbearance is consistent with the public interest.  
47 U.S.C. § 160(a).  “In making the determination under subsection (a)(3) [that forbearance is in the public interest,] 
the Commission shall consider whether forbearance from enforcing the provision or regulation will promote 
competitive market conditions, including the extent to which such forbearance will enhance competition among 
providers of telecommunications services.  If the Commission determines that such forbearance will promote 
competition among providers of telecommunications services, that determination may be the basis for a Commission 
finding that forbearance is in the public interest.”  47 U.S.C. § 160(b).  
319
47 U.S.C. § 332(c)(1).  Under that provision, the Commission may render provisions other than section 201, 202, 
or 208 inapplicable “only if the Commission determines that—(i) enforcement of such provision is not necessary in 
order to ensure that the charges, practices, classifications, or regulations for or in connection with that service are 
just and reasonable and are not unjustly or unreasonably discriminatory; (ii) enforcement of such provision is not 
necessary for the protection of consumers; and (iii) specifying such provision is consistent with the public interest.”  
Id.
320
2010 NOI, 25 FCC Rcd at 7895, para. 68.
321
Id.
322
See Letter from Robert Quinn, AT&T to Marlene H. Dortch, Secretary, Federal Communications Commission, 
GN Docket No. 14-28 at 1 (filed May 14, 2014) (stating that “forbearance would not address the many serious 
implications of reclassification”) (emphasis in original). 
323
2010 NOI, 25 FCC Rcd at 7909, para. 104.
Federal Communications Commission FCC 14-61
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‘encourage the larger and more effective use of radio in the public interest.’”
324
  Section 303 of the Act, in 
particular, authorizes the Commission to exercise its authority as “the public interest, convenience, and 
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,” and to establish obligations, not inconsistent with law, as may 
be necessary to carry out the provisions of the Act .
325
  It further directs the Commission to “generally 
encourage the larger and more effective use of radio in the public interest.”
326
  Likewise, section 316 of 
the Act authorizes the Commission to adopt “new conditions on existing licensees” when taking such 
action will “promote the public interest, convenience, and necessity.”
327
  The Commission may exercise 
this authority on a license-by-license basis or through a rulemaking,
328
even if the affected licenses were 
awarded at auction.
329
157. We find that these provisions provide authority for the Commission to adopt open 
Internet rules for mobile broadband service providers.  Particularly, we find that it is within our authority 
to “prescribe the nature of the service to be rendered by each class of licensed stations and each station 
within any class,” consistent with what the “public interest, convenience, and necessity requires” to apply 
open Internet rules to mobile broadband service providers.
330
  We seek comment on this interpretation of 
our Title III authority.  
158. Other Sources of Authority.  We seek comment on other sources of authority that the 
Commission may utilize to underpin the adoption of these rules.  For example, the Open Internet Order
delineated a number of arguments for authority under a variety of statutory provisions.
331
  We also seek 
comment on the theory that the Commission may underpin open Internet rules by using its discretion to 
define the scope of common carriage.
332
  In addition, we seek comment on the Commission’s authority to 
adopt rules under the World Trade Organization’s Basic Agreement on Trade in Telecommunications.
333
  
We seek comment on the efficacy of those, and other justifications for the rules we propose adopting 
here.  
4. Constitutional Considerations
159. Finally we seek comment on other legal limitations and barriers to adoption of the rules 
we propose today, including First Amendment and Due Process considerations.  In the Open Internet 
Order, the Commission concluded that “broadband providers typically are best described not as 
‘speakers,’ but rather as conduits for speech,” and that the open Internet rules therefore did not implicate 
                                                     
324
CNBC v. United States, 319 U.S. 190 (1943) (quoting 47 U.S.C. § 303(g)); see also Cellco, 700 F.3d at 542 
(upholding the Commission’s authority to require licensees to offer data roaming arrangements on commercially 
reasonable terms and conditions).
325
47 U.S.C. § 303(b), (r).
326
47 U.S.C. § 303(g).
327
47 U.S.C. § 316.
328
See WBEN Inc. v. United States, 396 F.2d 601, 618 (2d Cir. 1968).
329
See 47 U.S.C. § 309(j)(6); Celtronix Telemetry v. FCC, 272 F.3d 585 (D.C. Cir. 2001).
330
47 U.S.C. § 303(b).
331
The Commission alternatively relied on a variety of provisions under Titles I, II, III, and VI as authority for 
adopting the rules. See Open Internet Order, 25 FCC Rcd at 17972-81, paras. 124-137.
332
See Public Knowledge and Common Cause Comments 22-27.
333
See generally Jennifer A. Manner and Alejandro Hernandez, An Overlooked Basis of Jurisdiction for Net 
Neutrality: The World Trade Organization Agreement on Basic Telecommunications Services, 22 CommLaw 
Conspectus 60 (2014).
Federal Communications Commission FCC 14-61
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broadband providers’ First Amendment rights.
334
  The Commission also found that even if the rules “did 
implicate expressive activity, they would not violate the First Amendment”
335
because they would 
advance an important government interest—“ensur[ing] the public’s access to a multiplicity of 
information sources and maximiz[ing] the Internet’s potential to further the public interest”—without 
burdening “‘substantially more speech than is necessary.’”
336
  We seek comment on these findings.  We 
do not anticipate constitutional, statutory, or other legal barriers to adopting the rules we propose today, 
but we nonetheless seek comment on these matters.  Are there modifications we could make to the 
proposals we make today that would avoid constitutional questions?  
G. Other Laws and Considerations
160. The Open Internet Order provided that the open Internet rules did not alter broadband 
providers’ rights or obligations with respect to other laws or safety and security considerations.
337
  The 
Commission further established that the rules did not prohibit broadband providers from making 
reasonable efforts to address transfers of unlawful content and unlawful transfers of content.
338
  We 
tentatively conclude that this continues to be the correct approach in light of the rules proposed in today’s 
Notice.  We therefore propose to retain these regulations without modification.  We seek comment on this 
tentative conclusion.
H. Enforcement and Dispute Resolution
1. Background
161. The Open Internet Order allowed parties to file informal complaints pursuant to section 
1.41 of the Commission’s rules and promulgated a set of formal complaint rules.
339
The formal complaint 
rules give the Commission flexibility to shift the burden of proof or production where appropriate and to 
structure and streamline the process to the extent possible.
340
Due to the technical nature of potential 
disputes, however, the Open Internet Order stressed the importance of direct negotiations and 
consultation with independent technical bodies in hope that parties would be able to resolve disputes 
before availing themselves of the complaint processes.
341
Thus, the policy of the Commission has been to 
encourage the filing of informal, rather than formal, complaints, and thus it was not surprising that the 
Commission did not receive any formal complaints following the adoption of the Open Internet Order.  
As noted above, the Commission has received many informal complaints from consumers alleging 
violations of the Open Internet Order.  In addition, the Commission takes notice of public commentary 
and events, which may lead the Enforcement Bureau to initiate its own investigation.  We seek comment 
on the efficiency and functionality of the complaint processes adopted in, and used pursuant to, the Open 
Internet Order. 
2. Designing an Effective Enforcement Process
162. The Verizon decision and our earlier data roaming rules provide a blueprint for the 
creation of a dispute resolution process to govern the rules we propose today to protect and promote the 
open Internet.  Of course, there are significant potential differences between the data roaming and open 
                                                     
334
Open Internet Order, 25 FCC Rcd at 17982, para. 141.
335
Id. at 17983, para. 145.
336
Id. at 17984, para. 146.
337
47 C.F.R. § 8.9; Open Internet Order, 25 FCC Rcd at 17963-64, paras. 108-10.
338
47 C.F.R. § 8.9; Open Internet Order, 25 FCC Rcd at 17964-65, para. 111.
339
Open Internet Order, 25 FCC Rcd at 17986-89, paras. 153-59; 47 C.F.R. §§ 8.12-17. 
340
Open Internet Order, 25 FCC Rcd at 17988, para. 157.
341
See id. at 17986, 17988, paras. 151, 159.
Federal Communications Commission FCC 14-61
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Internet environments.  For example, in Cellco, the D.C. Circuit considered a circumstance in which an 
identified party, a wireless carrier, would desire to enter into a business arrangement with another 
identified party, another wireless carrier.  The rule at issue was designed to create circumstances that both 
incented individualized bargaining and, in specific circumstances, curbed the limits of such negotiation 
where necessary to serve the public interest.  A similar circumstance could arise in the open Internet 
context, if for example, an app developer wished to enter into a contractual arrangement with a broadband 
provider.  But it is just as possible that the entity that feels aggrieved by an alleged violation of an open 
Internet rule does not seek a direct contractual relationship with a broadband provider.  That could arise, 
for example, if a website is blocked or if an edge provider feels that it is being harmed by differential 
treatment afforded by a broadband provider to its own affiliate.  For this reason, the dispute resolution 
mechanism adopted by the Commission to enforce our proposed open Internet rules should be designed to 
operate between parties that do not necessarily desire to enter into a binding agreement.  
163. We tentatively conclude that an effective institutional design for the rules proposed in 
today’s Notice must include at least three elements.  First, there must be a mechanism to provide legal 
certainty, so that broadband providers, end users and edge providers alike can better plan their activities in 
light of clear Commission guidance.  Second, there must be flexibility to consider the totality of the facts 
in an environment of dynamic innovation.  Third, there must be effective access to dispute resolutions by 
end users and edge providers alike.  We seek comment on these elements.  Are there others that should be 
considered?  Should any be eliminated?  What forms of dispute resolution would be the best strategy to 
implement “data-driven decision-making”?
342
  
164. We believe we have ample legal authority to design an effective enforcement and dispute 
resolution process, whether the Commission ultimately relies on section 706, Title II, or another source of 
legal authority.  We seek comment on whether and how, if at all, the source of the Commission’s legal 
authority would affect our dispute resolution and enforcement proposals.
343
  
a. Legal Certainty
165. The Commission has a responsibility to provide certainty, guidance, and predictability to 
the marketplace as we protect and promote the open Internet.  The most important form of guidance is, of 
course, the adoption by the Commission of a particular legal standard in the forthcoming rulemaking.  As 
with the “commercially reasonable” standard employed in our data roaming rule, the purpose of such a 
legal standard is allow broadband providers, end users, and edge providers to measure broadband-
provider conduct against a known rule of law, both prospectively and retroactively.  Under the existing 
rules, formal complaints would also result in Commission orders that would both decide a specific 
complaint and provide useful guidance on the application of our proposed open Internet rules—
particularly in those cases where the adjudicated set of facts is representative of a larger industry practice.  
What other forms of guidance would be helpful?  For example, is there value in establishing a business-
review-letter approach similar to that of the Antitrust Division of the Department of Justice, whereby 
entities concerned about certain practices under the new rules may ask the Commission for a statement of 
its current enforcement intentions with respect to that conduct and by which the Commission would 
publish both the request for review and its response?
344
  If adopted, would it make sense to have such a 
prospective review process be administered jointly by the Enforcement Bureau and the Office of General 
Counsel, or should such prospective reviews be considered by the full Commission?  Should such 
guidance be binding or non-binding?  How might petitions for declaratory ruling be helpful?
                                                     
342
Phil Weiser, Institutional Design, FCC Reform and the Hidden Side of the Administrative States, Working Paper 
09-01 38 (2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1336820.
343
See supra Section III.F.
344
See 28 C.F.R. § 50.6; Dep’t. of Justice, Pilot Program Announced to Expedite Business Review Process (1992), 
http://www.justice.gov/atr/public/busreview/201659a.pdf.
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166. Non-Binding Staff Opinions.  Are there other mechanisms by which the Commission can 
provide guidance before broadband providers initiate practices that are within the scope of the open 
Internet rules?  For example, the Commission could designate certain staff to offer parties non-binding 
views on the likelihood that a particular practice by a broadband provider is commercially reasonable or 
commercially unreasonable (assuming that were the applicable legal standard ultimately adopted).  The 
Commission has some experience with this non-binding, advisory approach to interpretation of its 
rules.
345
While this type of informal guidance from staff is not binding, it may provide parties with 
helpful information as they consider whether and how to resolve a dispute privately and outside of the 
complaint process.  Should we establish a similar process for helping parties anticipate issues or resolve 
disputes that might arise under our proposed open Internet rules?  If so, should the non-binding guidance 
be made public in any way, or should it provide a confidential basis for early consultation?  We 
emphasize that these sorts of non-binding processes would always be in addition to, and not in lieu of, the 
right of parties to seek binding determinations from the Commission through the formal or informal 
complaint process, declaratory rulings, or other mechanisms we adopt to resolve disputes and allegations 
of violations of our open Internet rules.  
167. Enforcement Advisories.  Another type of guidance can come in the form of enforcement 
advisories. For example, the Enforcement Bureau and the Office of General Counsel issued an 
enforcement advisory in 2011, providing additional insight into the application of the transparency rule.
346
Is it helpful to have these bureaus issue such advisories periodically where issues of potential general 
application come to, or are brought to, their attention? Should such enforcement advisories be considered 
binding policy of the Commission, or merely a recitation of staff views?
b. Flexibility
168. Our process for promoting and protecting Internet openness through the rules we propose 
today must be flexible enough to account for the totality of circumstances, including Internet evolution 
and innovation from all sources over time.  In the Open Internet Order, the Commission stated that it 
would make certain determinations on a case-by-case basis.
347
The Commission also stated in the Data 
Roaming Order that it would determine whether the terms and conditions of a proffered data roaming 
arrangement were commercially reasonable on a case-by-case basis, taking into consideration the totality 
of the circumstances.
348
  Based on the Commission’s precedent in using this decision-making process, we 
tentatively conclude that we will adopt a similar case-by-case analysis and consider the totality of the 
circumstances to consider alleged violations of our proposed open Internet rules.  Such an approach 
would, for example, allow the Commission to consider any sources of innovation when analyzing 
whether conduct meets the legal standard ultimately adopted by the Commission.  Moreover, this 
approach helps to ensure that, as new circumstances exist, the Commission and interested parties will be 
advantaged by a culture of learning that, drawing on the strengths of common-law reasoning, reflects the 
experiences of the present, as well as the logic of the past.
349
  We seek comment on whether the 
                                                     
345
See Federal Communications Commission, Market Disputes Resolution Division, 
http://www.fcc.gov/encyclopedia/market-disputes-resolution-division (last visited Apr. 24, 2014). 
346
FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with Open 
Internet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Public Notice, 26 FCC Rcd 9411 
(Enforcement Bur./Office Gen. Counsel 2011).
347
See supra para. 61.
348
Data Roaming Order, 26 FCC Rcd at 5432, para. 42.
349
See, e.g., Oliver Wendell Holmes, Jr., The Common Law at 1 (1881): “The life of the law has not been logic: it 
has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public 
policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal 
more to do than the syllogism in determining the rules by which men should be governed. The law embodies the 
story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the 
(continued…)
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combination of a certain legal standard and a case-by-case approach provides the best means of both 
providing guidance and cabining administrative discretion, while ensuring that a system of dispute 
resolution is both focused on facts and founded on the strengths of common-law reasoning.
169. Fact Finding Processes. In implementing either an informal or formal complaint 
process, how should the Commission structure its fact-finding processes? What level of evidence should 
be required in order to bring a claim?  Are there other circumstances where initial pleading standards or 
burdens of production should be either higher or lower? In general, what is the showing required for the 
burden of production shift from the party bringing the claim to the other party in a dispute?  Should 
interim relief be available?  Should the process permit parties to seek expedited treatment of claims and, if 
so, under what circumstances?
c. Effective Access to Dispute Resolution  
170. To be effective in protecting and promoting Internet openness, the process for enforcing 
the rules we propose today must be accessible to a diverse array of affected parties.  As noted above, the 
Open Internet Order contemplated informal and formal complaints but did not include any alternative 
mechanisms for either providing guidance beforehand or resolution in the wake of a challenge to an 
existing practice.  But, as also noted above, the rules proposed in today’s Notice will operate in an 
environment in which a complaining party may not have sought, or may not even want, to enter into a 
contractual arrangement with a broadband provider. Moreover, the ability of edge providers to effectively 
access a dispute resolution is important to the administrative effectiveness of any legal regime that the 
Commission might adopt. To what extent should the structure of edge provider market segments impact 
the kind of regime that the Commission adopts? For example, although 17 broadband access providers 
accounted for about 93 percent of U.S. retail subscribers in 2013,
350
near the end of that year there were 
almost 900 app developers that each served more than one million active users globally.
351
  And app 
developers as a group may be quite a bit smaller than broadband providers; one estimate in 2013 
calculated that 65 percent of app developers garner less than $35,000 per year.
352
  Moreover, individuals 
are themselves quite capable of serving as edge providers, for example aspiring musicians who upload 
videos to sites such as YouTube.
353
  
171. How can a dispute resolution system be best structured to account for individuals and 
small businesses that may not have the same legal resources and effective access to the Commission as 
broadband providers?  We propose to create an ombudsperson whose duty will be to act as a watchdog to 
protect and promote the interests of edge providers, especially smaller entities.  Should initial pleading or 
procedural requirements be adopted that make access to Commission processes by individuals or small 
businesses less cumbersome?  
(Continued from previous page)                                                            
axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and 
what it tends to become. We must alternately consult history and existing theories of legislation. But the most 
difficult labor will be to understand the combination of the two into new products at every stage.”
350
Jeff Baumgartner, Top U.S. MSO’s & Telcos Added 2.6M Broadband Subs in 2013, Multichannel News (Mar. 
17, 2014), http://www.multichannel.com/news/technology/top-us-msos-telcos-added-26m-broadband-subs-
2013/325549.
351
Tony Danova, There Are Almost 900 Different App Developers That Have Over 1 Million Active Users, Business 
Insider (Nov. 11, 2013), http://www.businessinsider.com/there-are-almost-900-different-app-developers-that-have-
over-1-million-active-users-2013-11.
352
Scott Austin, The Surprising Numbers Behind Apps, Wall Street Journal Digits Blog (Mar. 11, 2013),
http://blogs.wsj.com/digits/2013/03/11/the-surprising-numbers-behind-apps/.
353
Leigh Goessl, How Musicians Can Use the Internet to Increase Exposure, Entertainment: Scene 360 (Jan. 1, 
2014), http://www.entertainmentscene360.com/index.php/how-musicians-can-use-the-internet-to-increase-exposure-
31667/.
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3. Complaint Processes, Enforcement, and Additional Forms of Dispute 
Resolution
172. Complaint Processes. We tentatively conclude that the same three means by which the 
Commission focused on potential open Internet violations after the adoption of the Open Internet Order, 
namely self-initiated investigation, informal complaints, and formal complaints, should be used as well to 
enforce any new open Internet rules. We seek comment on this tentative conclusion. Are there ways we 
can improve our informal complaint process to make it easier to access and more effective, especially for 
consumers and small businesses with limited resources?  For example, should the 
Commission create a separate Open Internet complaint category for consumers filing informal complaints 
under the open Internet rules? Should the Commission permit individuals to report possible 
noncompliance with our Open Internet rules anonymously or take other steps to protect the identity of 
individuals who may be concerned about retaliation for raising concerns?  
173. Enforcement.  We tentatively conclude that enforcement of the transparency rule and any 
enhanced transparency rule that is adopted in this proceeding should proceed under the same dispute 
mechanisms that will apply to the proposed no-blocking rule and the legal standard for provider practices 
ultimately adopted by the Commission. We also tentatively conclude that violations of the rules would be 
subject to forfeiture penalties, as appropriate, under the Act.  We seek comment on these tentative 
conclusions. 
174. Additional Forms of Dispute Resolution—Alternative Dispute Resolution.  In addition to 
the Commission processes noted above to provide guidance, flexibility, and access, we seek comment on 
whether additional dispute resolutions should be adopted.  Should we adopt measures to require or 
encourage disputes over the legality of broadband provider practices to be resolved through alternative 
dispute resolution processes, such as arbitration?  Would such an approach be sufficiently accessible to 
smaller edge providers, or would a different dispute resolution process be more appropriate?  Are there 
any legal considerations, limitations, or concerns that the Commission should consider with adopting an 
alternative dispute resolution procedure, including arbitration or mediation by a third party?
354
  We note 
that under our informal dispute resolution procedures, Commission staff can mediate disputes if parties 
voluntarily request such a process.  During such mediations, for instance, the staff may ask parties to 
submit their best offers to facilitate negotiations.  We also can adopt specific rules to determine 
appropriate remedies and rapid resolution of formal complaints, including a requirement that parties 
provide their best and final offers to help Commission staff determine an appropriate remedy if a violation 
of the rule is found.
355
  We seek comment on the benefits and costs of such an approach in this context.  
175. Additional Forms of Dispute Resolution—Multistakeholder Processes.  We also seek 
comment on whether a multistakeholder approach to the enforcement of our proposed open Internet rules 
would work in this context, in whole or in part.  For example, should the Commission provide an initial 
forum for discussion and thereafter encourage stakeholders, should they so choose, to independently 
develop standards that they consider to meet the governing legal standards?  Such standards might then be 
shared with the Commission for consideration, or the stakeholders might publicize their proposed 
standards and encourage industry to use them as best practices.  If the Commission employed a model 
similar to that of NTIA’s multistakeholder privacy process, are there lessons we can learn from that 
                                                     
354
For example, under the Alternative Dispute Resolution Act, an agency “may not require any person to consent to 
arbitration as a condition of entering into a contract or obtaining a benefit.”  5 U.S.C. § 575(a)(3).  We note, 
however, that this restriction does not prevent the Commission from requiring parties to submit to third-party 
arbitration so long as the arbitration is subject to de novo review by the Commission. See, e.g., Comcast Corp.,
Petition for Declaratory Ruling that The America Channel is not a Regional Sports Network, File No. CSR-7108, 
Order, 22 FCC Rcd 17938, 17948, para. 4, n.13 (2007).
355
In the Data Roaming Order, the Commission reserved the right to require both parties to provide their best and 
final offers to help Commission staff determine an appropriate remedy if a violation of the rule was found.  Data 
Roaming Order, 26 FCC Rcd 5411, 5450-51, paras. 79, 83.
Federal Communications Commission FCC 14-61
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experience?
356
  How can a multistakeholder process best further the goals of providing guidance, 
flexibility, and access?  
176. Additional Forms of Dispute Resolution—Technical Advisory Groups. We also seek 
comment on whether and how the Commission should incorporate the expertise of technical advisory 
groups into a new open Internet framework in a manner that could serve the goals of providing guidance, 
flexibility and access.  For example, should we invite the Open Internet Advisory Committee (OIAC), the 
Broadband Internet Technical Advisory Group (BITAG), the Internet Engineering Task Force (IETF), or 
the North American Network Operators Group (NANOG) to recommend to the Commission or public 
more generally industry best practices or other codes of conduct that would either serve as presumptive 
safe harbors and/or help determine whether a broadband provider is in compliance with our open Internet 
rules?
357
  Or, rather than asking industry groups and other interested parties to play a role ex ante, should 
the Commission instead ask them generally, or specific groups in particular, to weigh in on specific 
disputes once they are brought to the Commission’s attention?
358
  We seek comment generally on how the 
inclusion of advisory groups might strengthen the open Internet framework and reduce the burdens of 
compliance. Similarly, we seek comment on the potential value of allowing providers to opt into 
voluntary codes of conduct or other suggested best practices that may serve as presumptive safe harbors.   
IV. PROCEDURAL MATTERS
A. Paperwork Reduction Act Analysis
177. This document contains proposed new information collection requirements.  The 
Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and 
the Office of Management and Budget (OMB) to comment on the information collection requirements 
contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13.  
In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see
44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information 
collection burden for small business concerns with fewer than 25 employees.
B. Initial Regulatory Flexibility Analysis
178. As required by the Regulatory Flexibility Act of 1980 (RFA),
359
the Commission has 
prepared an Initial Regulatory Flexibility Analysis (IRFA) for this Notice of Proposed Rulemaking, of the 
possible significant economic impact on small entities of the policies and rules addressed in this 
document.  The IRFA is set forth in Appendix B.  Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments 
                                                     
356
For example, the Department of Commerce directed the NTIA to convene multistakeholder processes to develop 
legally enforceable codes of conduct specifying how consumer data privacy rules should apply in specific business 
contexts.  NTIA’s role in the privacy multistakeholder process is to “help the parties reach clarity on what their 
positions are and whether there are options for compromise toward consensus, rather than substituting [the NTIA’s] 
own judgment.” The White House, Consumer Data Privacy in a Networked World: A Framework for Protecting 
Privacy and Promoting Innovation in the Global Digital Economy 23-26, 27 (Feb. 2012), 
http://www.whitehouse.gov/sites/default/files/privacy-final.pdf.    
357
Open Internet Order, 25 FCC Rcd at 17989, para. 162.  The Open Internet Advisory Committee is an inclusive 
and transparent body comprised of a balanced group including consumer advocates; Internet engineering experts; 
content, application, and service providers; network equipment and end-user-device manufacturers and suppliers; 
investors; broadband service providers; and other parties the Commission may deem appropriate.  The Committee 
aids the Commission in tracking developments with respect to the freedom and openness of the Internet, including 
technical standards and issues relating to mobile broadband and specialized services. The Committee reports to the 
Commission and make recommendations it deems appropriate concerning the open Internet framework.  Id. 
358
2013 OIAC Annual Report at 39-46 (AT&T Face Time Case Study). 
359
See 5 U.S.C. § 603.
Federal Communications Commission FCC 14-61
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on the Notice indicated on the first page of this document.  The Commission’s Consumer and 
Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of Proposed 
Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA).
360
C. Comment Filing Procedures
179. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 C.F.R. §§ 1.415, 
1.419, interested parties may file comments and reply comments on or before the dates indicated on the 
first page of this document.  Comments may be filed using the Commission’s Electronic Comment Filing 
System (ECFS).  See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
? 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 one copy 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 12
th
St., SW, Room TW-A325, 
Washington, DC 20554.  The filing hours are 8:00 a.m. to 7:00 p.m.  All hand deliveries 
must be held together with rubber bands or fasteners.  Any envelopes and boxes 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 12
th
Street, SW, Washington DC  20554.
180. 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 fcc504@fcc.gov or call 
the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
D. Ex Parte Rules
181. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with 
the Commission’s ex parte rules.
361
  Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation within two business days after 
the presentation (unless a different deadline applicable to the Sunshine period applies).  Persons making 
oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all 
persons attending or otherwise participating in the meeting at which the ex parte presentation was made, 
and (2) summarize all data presented and arguments made during the presentation.  If the presentation 
consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s 
written comments, memoranda or other filings in the proceeding, the presenter may provide citations to 
                                                     
360
See 5 U.S.C. § 603(a).
361
47 C.F.R. §§ 1.1200 et seq.
Federal Communications Commission FCC 14-61
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such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant 
page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them 
in the memorandum.  Documents shown or given to Commission staff during ex parte meetings are 
deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b).  In 
proceedings governed by rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic comment filing system available for that 
proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).  Participants in 
this proceeding should familiarize themselves with the Commission’s ex parte rules.
E. Contact Person
182. For further information about this rulemaking proceeding, please contact Kristine 
Fargotstein, Competition Policy Division, Wireline Competition Bureau, at (202) 418-2774.
V. ORDERING CLAUSES 
183. Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i)-(j), 303 and 316 of the 
Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, as 
amended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302, that this Notice of Proposed Rulemaking IS 
ADOPTED.
184. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental 
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.  
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A
Proposed Rules
Part 8 of Title 47 of the Code of Federal Regulations is amended as follows:
PART 8 – PROTECTING AND PROMOTING THE OPEN INTERNET
Sec.
8.1 Purpose.
8.3 Transparency.
8.5 No Blocking.
8.7 No Commercially Unreasonable Practices.
8.9 Other Laws and Considerations.
8.11 Definitions.
AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302
§ 8.1 Purpose.
The purpose of this Part is to protect and promote the Internet as an open platform enabling consumer 
choice, freedom of expression, end-user control, competition, and the freedom to innovate without 
permission, and thereby to encourage the deployment of advanced telecommunications capability and 
remove barriers to infrastructure investment.
§ 8.3 Transparency.
(a)  A person engaged in the provision of broadband Internet access service shall publicly disclose 
accurate information regarding the network management practices, performance, and commercial terms 
of its broadband Internet access services, in a manner tailored (i) for end users to make informed choices 
regarding use of such services, (ii) for edge providers to develop, market, and maintain Internet offerings, 
and (iii) for the Commission and members of the public to understand how such person complies with the 
requirements described in sections 8.5 and 8.7 of this chapter.  
(b)  In making the disclosures required by this section, a person engaged in the provision of broadband 
Internet access service shall include meaningful information regarding the source, timing, speed, packet 
loss, and duration of congestion.  
(c) In making the disclosures required by this section, a person engaged in the provision of broadband 
Internet access service shall publicly disclose in a timely manner to end users, edge providers, and the 
Commission when they make changes to their network practices as well as any instances of blocking, 
throttling, and pay-for-priority arrangements, or the parameters of default or “best effort” service as 
distinct from any priority service.
§ 8.5 No Blocking.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so 
engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to 
reasonable network management.
A person engaged in the provision of mobile broadband Internet access service, insofar as such person is 
so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network 
Federal Communications Commission FCC 14-61
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management; nor shall such person block applications that compete with the provider’s voice or video 
telephony services, subject to reasonable network management.
§ 8.7 No Commercially Unreasonable Practices.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so 
engaged, shall not engage in commercially unreasonable practices. Reasonable network management 
shall not constitute a commercially unreasonable practice.
§ 8.9 Other Laws and Considerations.
Nothing in this part supersedes any obligation or authorization a provider of broadband Internet access 
service may have to address the needs of emergency communications or law enforcement, public safety, 
or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s 
ability to do so.  
Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to 
address copyright infringement or other unlawful activity.
§ 8.11 Definitions.
(a) Block.  The failure of a broadband Internet access service to provide an edge provider with a 
minimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users and 
edge providers.
(b) Broadband Internet access service.  A mass-market retail service by wire or radio that provides the 
capability to transmit data to and receive data from all or substantially all Internet endpoints, including 
any capabilities that are incidental to and enable the operation of the communications service, but 
excluding dial-up Internet access service.  This term also encompasses any service that the Commission 
finds to be providing a functional equivalent of the service described in the previous sentence, or that is 
used to evade the protections set forth in this Part.
(c) Edge Provider.  Any individual or entity that provides any content, application, or service over the 
Internet, and any individual or entity that provides a device used for accessing any content, application, or 
service over the Internet.  
(d) End User.  Any individual or entity that uses a broadband Internet access service.
(e) Fixed broadband Internet access service.  A broadband Internet access service that serves end users 
primarily at fixed endpoints using stationary equipment.  Fixed broadband Internet access service includes 
fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.
(f) Mobile broadband Internet access service.  A broadband Internet access service that serves end users 
primarily using mobile stations.
(g) Reasonable network management.  A network management practice is reasonable if it is appropriate 
and tailored to achieving a legitimate network management purpose, taking into account the particular 
network architecture and technology of the broadband Internet access service.
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APPENDIX B
Initial Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
1
the 
Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on a substantial number of small entities from the policies and rules proposed in this 
Notice of Proposed Rulemaking (Notice).  The Commission requests written public comment on this 
IRFA.  Comments must be identified as responses to the IRFA and must be filed by the deadlines for
comments on the Notice provided on the first page of the Notice.  The Commission will send a copy of 
the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration 
(SBA).
2
  In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal 
Register.
3
A. Need for, and Objectives of, the Proposed Rules
2. With this Notice, the Commission is directly responding to the remand by the U.S. Court 
of Appeals for the D.C. Circuit in Verizon v. FCC of portions of the Commission’s 2010 Open Internet 
Order and proposing enforceable rules to protect and promote the open Internet.
4
  The Notice seeks 
comment on a variety of issues relating to the Commission’s stated objective of protecting and promoting 
an open Internet.  The Internet’s openness promotes innovation, investment, competition, free expression 
and other national broadband goals.  It is also critical to the Internet’s ability to serve as a platform for 
speech and civic engagement and can help close the digital divide by facilitating the development of 
diverse content, applications, and services.  The Commission has specifically found that the Internet’s 
openness enables a “virtuous circle of innovation in which new uses of the network—including new 
content, applications, services, and devices—lead to increased end-user demand for broadband, which 
drives network improvements, which in turn lead to further innovative network uses.”
5
  However, as the 
Commission has previously found, broadband providers have both the incentive and ability to limit 
Internet openness. As discussed in the Notice, the Commission is seeking comment on proposed open 
Internet rules that will protect against the harms identified in the 2010 Open Internet Order, while 
fostering all sources of innovation on the collection of networks known as the Internet.
6
  The Notice asks 
for comment in a variety of specific areas and sets forth proposals in the following six key areas:  scope of 
the proposed rules, enhancement of the existing transparency rule, a no-blocking rule, an enforceable rule 
designed to protect the open Internet that is not per se common carriage, the best source of legal authority 
for protection of Internet openness and an enforcement and dispute resolution process.
3. First, the Notice proposes to retain the same definitions and scope as the 2010 rules.  The 
Notice seeks comment, however, on whether the Commission should change the scope of the proposed 
rules as applied to the following: specifically identified services, enterprise services, Internet traffic 
exchange, specialized services, and mobile services.  The Notice also proposes to interpret “reasonable 
network management” under the same framework adopted in the 2010 Open Internet Order and seeks 
comment on developing the scope of “reasonable network management” on a case-by-case basis under 
the proposed rules.  
                                                     
1
See 5 U.S.C. § 603.  The RFA, see 5 U.S.C. §§ 601-12, has been amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2
See 5 U.S.C. § 603(a).
3
Id.
4
See Notice Section III; Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). 
5
Open Internet Order, 25 FCC Rcd at 17910-11, para. 14.  
6
See Notice Section III. A. 
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4. Second, the Notice proposes enhancements to the Commission’s existing transparency 
rule, which was upheld by the D.C. Circuit.  The Notice seeks comment on whether disclosures of 
broadband providers’ network management practices, performance, and terms and conditions that are 
specifically tailored to the needs of affected parties would better ensure that consumers, edge providers, 
and the Internet community at large have the information they need to understand the services they are 
receiving and to monitor practices that could undermine the open Internet than the existing rule  The 
Notice seeks comment on the burdens of enhanced transparency on broadband providers and specifically 
asks if there are ways to minimize these potential costs and burdens. 
5. Third, the Notice proposes adopting the text of the no-blocking rule from the 2010 Open 
Internet Order, with a revised rationale, in order to ensure that all end users and edge providers can enjoy 
the use of robust, fast and dynamic Internet access.  To address the ongoing concerns with the harmful 
effects that blocking of Internet traffic would have on Internet openness and to competition in adjacent 
markets, the Notice seeks comment on a draft no-blocking rule that would allow individualized 
bargaining above a minimum level of access to a broadband provider’s subscribers, which the D.C. 
Circuit suggested would be permissible and take the rule out of the realm of common carriage regulation.  
The Notice proposes a variety of ways to establish a minimum level of access under the proposed no-
blocking rule and seeks comment on those interpretations.  Alternatively, the Notice seeks comment on 
whether the Commission should adopt a no-blocking rule that either itself prohibits broadband providers 
from entering into priority agreements with edge providers or acts in combination with a separate rule 
prohibiting such conduct.  Additionally, consistent with the 2010 Open Internet Order, the Notice 
proposes to apply the proposed no-blocking rule differently to mobile broadband providers than to fixed 
broadband providers and seeks comment on that approach. 
6. Fourth, where conduct would otherwise be permissible under the no-blocking rule, the 
Notice proposes a separate rule that requires broadband providers to adhere to an enforceable legal 
standard of commercially reasonable practices.  The Notice tentatively concludes that the Commission 
should adopt a revised rule that, consistent with the court’s decision, may permit broadband providers to 
engage in individualized practices, while prohibiting those broadband provider practices that threaten to 
harm Internet openness.  The Commission’s proposed approach contains three essential elements: (1) an 
enforceable legal standard of conduct barring broadband provider practices that threaten to undermine 
Internet openness, providing certainty to network providers, end users, and edge providers alike, (2) 
clearly established factors that give additional guidance on the kind of conduct that is likely to violate the 
enforceable legal standard, and (3) encouragement of individualized negotiation and, if necessary, a 
mechanism to allow the Commission to evaluate challenged practices on a case-by-case basis, thereby 
providing flexibility in assessing whether a particular practice comports with the legal standard.  The 
Notice proposes that the concept of reasonable network management would be treated separately from the 
application of the commercially reasonable practices legal standard and seeks comment on this approach.  
The Notice asks how harm can best be identified and prohibited and whether certain practices, like paid 
prioritization, should be barred altogether.  The Notice also seeks comment on whether the Commission 
should consider current technical characteristics, industry practices, and the impact on consumers, among 
other factors, when evaluating commercially reasonable practices.   
7. Fifth, the Notice proposes to rely on section 706 of the Telecommunications Act of 1996 
as the source of authority for the proposed rules.  It seeks comment, however, on the best source of 
authority for protecting Internet openness, whether section 706, Title II of the Communications Act of 
1934, as amended, and/or other sources of legal authority such as Title III of the Communications Act for 
wireless services.  With respect to the prospect of proceeding under Title II, the Notice seeks comment on 
whether and how the Commission should exercise its authority under section 10 of the Act—or section 
332(c)(1) for mobile services—to forbear from specific Title II obligations that would flow from the 
classification of a service as telecommunications service. 
8. Sixth, the Notice proposes a multi-faceted dispute resolution process to provide effective 
access for end users, edge providers, and broadband network providers alike and the creation of an 
ombudsperson to act as a watchdog to represent the interests of consumers, start-ups and small 
Federal Communications Commission FCC 14-61
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businesses.  The Notice seeks comment on the level of flexibility needed for such approaches and, 
specifically, how the Commission can ensure that the process is accessible by end users and edge 
providers, including small entities.  The Notice also proposes that should the Commission ultimately 
adopt one of the proposed dispute mechanisms, then enforcement of the existing transparency rule and 
any enhancements to that rule would proceed under the same manner as enforcement of the 
Commission’s other proposed open Internet rules if adopted. 
B. Legal Basis
9. The legal basis for any action that may be taken pursuant to the Notice is contained in 
sections 1, 2, 4(i)-(j), 303, and 316, of the Communications Act of 1934, as amended, and section 706 of 
the Telecommunications Act of 1996, as amended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302,
C. Description and Estimate of the Number of Small Entities to Which the Rules 
Would Apply
10. The RFA directs agencies to provide a description of, and where feasible, an estimate of 
the number of small entities that may be affected by the proposed rules, if adopted.
7
  The RFA generally 
defines the term “small entity” as having the same meaning as the terms “small business,” “small 
organization,” and “small governmental jurisdiction.”
8
  In addition, the term “small business” has the 
same meaning as the term “small-business concern” under the Small Business Act.
9
  A small-business 
concern” is one which:  (1) is independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the SBA.
10
1. Total Small Entities 
11. Our proposed action, if implemented, may, over time, affect small entities that are not 
easily categorized at present.  We therefore describe here, at the outset, three comprehensive, statutory 
small entity size standards.
11
  First, nationwide, there are a total of approximately 28.2 million small 
businesses, according to the SBA.
12
  In addition, a “small organization” is generally “any not-for-profit 
enterprise which is independently owned and operated and is not dominant in its field.”
13
  Nationwide, as 
of 2007, there were approximately 1,621,315 small organizations.
14
   Finally, the term “small 
governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, 
school districts, or special districts, with a population of less than fifty thousand.”
15
  Census Bureau data 
for 2007 indicate that there were 89,476 local governmental jurisdictions in the United States.
16
  We 
                                                     
7
See 5 U.S.C. § 603(b)(3).
8
See 5 U.S.C. § 601(6).
9
See 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business 
Act, 15 U.S.C. § 632).  Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an 
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the 
agency and publishes such definition(s) in the Federal Register.”
10
See 15 U.S.C. § 632.
11
See 5 U.S.C. §§ 601(3)-(6).
12
See SBA, Office of Advocacy, “Frequently Asked Questions,” 
http://www.sba.gov/sites/default/files/FAQ_March_2014_0.pdf (last accessed Apr. 28, 2014).
13
5 U.S.C. § 601(4).
14
Indep. Sector, The New Nonprofit Almanac and Desk Reference (2010).
15
5 U.S.C. § 601(5).
16
U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8, page 267, tbl. 429, 
https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from 2007). 
Federal Communications Commission FCC 14-61
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estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.”
17
  
Thus, we estimate that most governmental jurisdictions are small.
2. Internet Access Service Providers
12. The actions proposed in the Notice would apply to broadband Internet access service 
providers.  The 2011 Economic Census places these firms, whose services might include Voice over 
Internet Protocol (VoIP), in either of two categories, depending on whether the service is provided over 
the provider’s own telecommunications facilities (e.g., cable and DSL ISPs), or over client-supplied 
telecommunications connections (e.g., dial-up ISPs).  The former are within the category of Wired 
Telecommunications Carriers,
18
which has an SBA small business size standard of 1,500 or fewer 
employees.
19
  These are also labeled “broadband.”  The latter are within the category of All Other 
Telecommunications,
20
which has a size standard of annual receipts of $25 million or less.
21
  These are 
labeled non-broadband.  The most current Economic Census data for Wired Telecommunications Carriers 
are 2011 data, and the most current Economic Census data for All Other Telecommunications are 2007 
data, which are detailed specifically for ISPs within the categories above.  For the first category, the data 
show that 3,372 firms operated for the entire year, of which 2,037 had nine or fewer employees.
22
  For the 
second category, the data show that 1,274 firms operated for the entire year.  
23
Of those, 1,252 had annual 
receipts below $25 million per year.  Consequently, we estimate that the majority of ISP firms are small 
entities.
13. The ISP industry has changed since these definitions were introduced in 2007.  The data 
cited above may therefore include entities that no longer provide Internet access service and may exclude 
entities that now provide such service.  To ensure that this IRFA describes the universe of small entities 
that our action might affect, we discuss in turn several different types of entities that might be providing 
Internet access service.  We note that, although we have no specific information on the number of small 
entities that provide broadband Internet access service over unlicensed spectrum, we include these entities 
in our Initial Regulatory Flexibility Analysis.
                                                     
17
The 2007 U.S. Census data for small governmental organizations are not presented based on the size of the 
population in each such organization. There were 89,476 local governmental organizations in 2007. If we assume
that county, municipal, township, and school district organizations are more likely than larger governmental 
organizations to have populations of 50,000 or less, the total of these organizations is 52,095.  As a basis of 
estimating how many of these 89,476 local government organizations were small, in 2011, we note that there were a 
total of 715 cities and towns (incorporated places and minor civil divisions) with populations over 50,000.  City and 
Town Totals Vintage: 2011 – U.S. Census Bureau, http://www.census.gov/popest/data/cities/totals/2011/index.html.  
If we subtract the 715 cities and towns that meet or exceed the 50,000 population threshold, we conclude that 
approximately 88,761 are small.  U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8, 
page 267, tbl. 429, https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from 
2007).
18
  U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012%20NAICS%20Search
19
  13 C.F.R. § 121.201, NAICS code 517110.
20
  U.S. Census Bureau, 2012 NAICS Definitions, “517919 All Other Telecommunications,”, 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012%20NAICS%20Search.
21
  13 C.F.R. § 121.201, NAICS code 517919.
22
  U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 5171103 (released Dec. 2013), http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls. 
23
  U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 5179191 (released Nov. 19, 2010) (receipts size).
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3. Wireline Providers
14. Incumbent Local Exchange Carriers (Incumbent LECs).  Neither the Commission nor the 
SBA has developed a small business size standard specifically for incumbent local exchange services.  
The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers.  
Under that size standard, such a business is small if it has 1,500 or fewer employees.
24
  According to 
Commission data,
25
1,307 carriers reported that they were incumbent local exchange service providers.
26
  
Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have more than 1,500 
employees.
27
   Consequently, the Commission estimates that most providers of incumbent local exchange 
service are small businesses that may be affected by our proposed action.
15. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers 
(CAPs), Shared-Tenant Service Providers, and Other Local Service Providers.  Neither the Commission 
nor the SBA has developed a small business size standard specifically for these service providers.  The 
appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers.  Under 
that size standard, such a business is small if it has 1,500 or fewer employees.
28
  According to 
Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive 
local exchange services or competitive access provider services.
29
  Of these 1,442 carriers, an estimated 
1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees.
30
  In addition, 17 carriers 
have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or 
fewer employees.
31
  In addition, 72 carriers have reported that they are Other Local Service Providers.
32
  
Of the 72, seventy have 1,500 or fewer employees and two have more than 1,500 employees.
33
  
Consequently, the Commission estimates that most providers of competitive local exchange service, 
competitive access providers, Shared-Tenant Service Providers, and other local service providers are 
small entities that may be affected by our proposed action.
16. We have included small incumbent LECs in this present RFA analysis.  As noted above, 
a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard 
(e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its 
field of operation.”
34
  The SBA’s Office of Advocacy contends that, for RFA purposes, small incumbent 
LECs are not dominant in their field of operation because any such dominance is not “national” in 
scope.
35
  We have therefore included small incumbent LECs in this RFA analysis, although we emphasize 
                                                     
24
13 C.F.R. § 121.201, NAICS code 517110.
25
Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology 
Division, Trends in Telephone Service, tbl. 5.3  (Sept. 2010) (Trends in Telephone Service).  
26
See Trends in Telephone Service at tbl. 5.3. 
27
See id.
28
13 C.F.R. § 121.201, NAICS code 517110.
29
See Trends in Telephone Service at tbl.5.3.
30
See id.
31
See id.
32
See id.
33
See id.
34
5 U.S.C. § 601(3).
35
Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, Federal 
Communications Commission (filed May 27, 1999).  The Small Business Act contains a definition of “small 
business concern,” which the RFA incorporates into its own definition of “small business.”  15 U.S.C. § 632(a); 5 
(continued…)
Federal Communications Commission FCC 14-61
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that this RFA action has no effect on Commission analyses and determinations in other, non-RFA 
contexts.
17. Interexchange Carriers.  Neither the Commission nor the SBA has developed a small 
business size standard specifically for providers of interexchange services.  The appropriate size standard 
under SBA rules is for the category Wired Telecommunications Carriers.  Under that size standard, such a 
business is small if it has 1,500 or fewer employees.
36
  According to Commission data,
37
359 carriers have 
reported that they are engaged in the provision of interexchange service.  Of these, an estimated 317 have 
1,500 or fewer employees and 42 have more than 1,500 employees.  Consequently, the Commission 
estimates that the majority of IXCs are small entities that may be affected by our proposed action.
18. Operator Service Providers (OSPs).  Neither the Commission nor the SBA has developed 
a small business size standard specifically for operator service providers.  The appropriate size standard 
under SBA rules is for the category Wired Telecommunications Carriers.  Under that size standard, such a 
business is small if it has 1,500 or fewer employees.
38
  According to Commission data, 33 carriers have 
reported that they are engaged in the provision of operator services.  Of these, an estimated 31 have 1,500 
or fewer employees and two have more than 1,500 employees.
39
  Consequently, the Commission 
estimates that the majority of OSPs are small entities that may be affected by our proposed action.
4. Wireless Providers – Fixed and Mobile
19. The broadband Internet access service provider category covered by this Notice may 
cover multiple wireless firms and categories of regulated wireless services.  Thus, to the extent the 
wireless services listed below are used by wireless firms for broadband Internet access services, the 
proposed actions may have an impact on those small businesses as set forth above and further below.  In 
addition, for those services subject to auctions, we note that, as a general matter, the number of winning 
bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent 
the number of small businesses currently in service.  Also, the Commission does not generally track 
subsequent business size unless, in the context of assignments and transfers or reportable eligibility 
events, unjust enrichment issues are implicated.
20. Wireless Telecommunications Carriers (except Satellite).  Since 2007, the Census Bureau 
has placed wireless firms within this new, broad, economic census category.
40
  Prior to 2007, such firms 
were within the now-superseded categories of “Paging” and “Cellular and Other Wireless 
Telecommunications.”
41
  Under the present and prior categories, the SBA has deemed a wireless business 
to be small if it has 1,500 or fewer employees.
42
  For the category of Wireless Telecommunications 
(Continued from previous page)                                                            
U.S.C. § 601(3).  SBA regulations interpret “small business concern” to include the concept of dominance on a 
national basis.  13 C.F.R. § 121.102(b).
36
13 C.F.R. § 121.201, NAICS code 517110.
37
Trends in Telephone Service, tbl. 5.3.
38
13 C.F.R. § 121.201, NAICS code 517110.
39
Trends in Telephone Service, tbl. 5.3.
40
U.S. Census Bureau, 2012 NAICS Definitions, “517210 Wireless Telecommunications Categories (Except 
Satellite)”; http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517210&search=2012%20NAICS%20Search.
41
U.S. Census Bureau, 2002 NAICS Definitions, “517211 Paging”; 
http://www.census.gov/epcd/naics02/def/NDEF517.HTM.; U.S. Census Bureau, 2002 NAICS Definitions, “517212 
Cellular and Other Wireless Telecommunications”; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.
42
13 C.F.R. § 121.201, NAICS code 517210 (2012 NAICS).  The now-superseded, pre-2007 C.F.R. citations were 
13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
Federal Communications Commission FCC 14-61
74
Carriers (except Satellite), data for 2011 show that there were 784 firms operating that year.
43
  Of these 
784 firms, an estimated 749 have 500 or fewer employees and 35 have more than 500 employees.  Since 
all firms with fewer than 1,500 employees are considered small, given the total employment in the sector, 
we estimate that the vast majority of wireless firms are small.
21. Wireless Communications Services.  This service can be used for fixed, mobile, 
radiolocation, and digital audio broadcasting satellite uses.  The Commission defined “small business” for 
the wireless communications services (WCS) auction as an entity with average gross revenues of $40 
million for each of the three preceding years, and a “very small business” as an entity with average gross 
revenues of $15 million for each of the three preceding years.
44
  The SBA has approved these 
definitions.
45
  The Commission auctioned geographic area licenses in the WCS service in 1997.  In the 
auction, seven bidders won 31 licenses that qualified as very small business entities, and one bidder won 
one license that qualified as a small business entity.
22. 1670–1675 MHz Services.  This service can be used for fixed and mobile uses, except 
aeronautical mobile.
46
  An auction for one license in the 1670–1675 MHz band was conducted in 2003.  
One license was awarded.  The winning bidder was not a small entity.
23. Wireless Telephony.  Wireless telephony includes cellular, personal communications 
services, and specialized mobile radio telephony carriers.  As noted, the SBA has developed a small 
business size standard for Wireless Telecommunications Carriers (except Satellite).
47
  Under the SBA 
small business size standard, a business is small if it has 1,500 or fewer employees.
48
According to 
Commission data, 413 carriers reported that they were engaged in wireless telephony.
49
  Of these, an 
estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.
50
  Therefore, a 
little less than one third of these entities can be considered small.
24. Broadband Personal Communications Service.  The broadband personal communications 
services (PCS) spectrum is divided into six frequency blocks designated A through F, and the 
Commission has held auctions for each block.  The Commission initially defined a “small business” for 
C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three 
previous calendar years.
51
  For F-Block licenses, an additional small business size standard for “very 
small business” was added and is defined as an entity that, together with its affiliates, has average gross 
                                                     
43
U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 517210 (released Dec. 2013) (employment size).  
http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls
44
Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service (WCS), GN 
Docket No. 96-228, Report and Order, 12 FCC Rcd 10785, 10879, para. 194 (1997).
45
See Letter from Aida Alvarez, Administrator, SBA, to Amy Zoslov, Chief, Auctions and Industry Analysis 
Division, Wireless Telecommunications Bureau, Federal Communications Commission (filed Dec. 2, 1998)
(Alvarez Letter 1998).
46
47 C.F.R. § 2.106; see generally 47 C.F.R. §§ 27.1-27.70.
47
13 C.F.R. § 121.201, NAICS code 517210.
48
Id.
49
Trends in Telephone Service, tbl. 5.3.
50
Id.
51
See Amendment of Parts 20 and 24 of the Commission’s Rules – Broadband PCS Competitive Bidding and the 
Commercial Mobile Radio Service Spectrum Cap; Amendment of the Commission’s Cellular/PCS Cross-Ownership 
Rule; WT Docket No. 96-59, GN Docket No. 90-314, Report and Order, 11 FCC Rcd 7824, 7850-52, paras. 57-60 
(1996) (PCS Report and Order); see also 47 C.F.R. § 24.720(b).
Federal Communications Commission FCC 14-61
75
revenues of not more than $15 million for the preceding three calendar years.
52
  These small business size 
standards, in the context of broadband PCS auctions, have been approved by the SBA.
53
  No small 
businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks 
A and B.  There were 90 winning bidders that claimed small business status in the first two C-Block
auctions.  A total of 93 bidders that claimed small business status won approximately 40 percent of the 
1,479 licenses in the first auction for the D, E, and F Blocks.
54
  On April 15, 1999, the Commission 
completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22.
55
  Of the 57 winning 
bidders in that auction, 48 claimed small business status and won 277 licenses.
25. On January 26, 2001, the Commission completed the auction of 422 C and F Block 
Broadband PCS licenses in Auction No. 35.  Of the 35 winning bidders in that auction, 29 claimed small 
business status.
56
  Subsequent events concerning Auction 35, including judicial and agency 
determinations, resulted in a total of 163 C and F Block licenses being available for grant.  On February 
15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 
58.  Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses.
57
  
On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in 
Auction No. 71.
58
  Of the 12 winning bidders in that auction, five claimed small business status and won 
18 licenses.
59
  On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block 
Broadband PCS licenses in Auction No. 78.
60
  Of the eight winning bidders for Broadband PCS licenses 
in that auction, six claimed small business status and won 14 licenses.
61
26. Specialized Mobile Radio Licenses.  The Commission awards “small entity” bidding 
credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 
MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar 
years.
62
  The Commission awards “very small entity” bidding credits to firms that had revenues of no 
more than $3 million in each of the three previous calendar years.
63
  The SBA has approved these small 
                                                     
52
See PCS Report and Order, 11 FCC Rcd at 7852, para. 60.
53
See Alvarez Letter 1998.
54
See Broadband PCS, D, E and F Block Auction Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14, 1997).
55
See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (WTB 1999).  Before 
Auction No. 22, the Commission established a very small standard for the C Block to match the standard used for F 
Block.  Amendment of the Commission’s Rules Regarding Installment Payment Financing for Personal 
Communications Services (PCS) Licensees, WT Docket No. 97-82, Fourth Report and Order, 13 FCC Rcd 15743, 
15768, para. 46 (1998).
56
See C and F Block Broadband PCS Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd 
2339 (2001).
57
See Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58, Public Notice, 20 
FCC Rcd 3703 (2005).
58
See Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71, 
Public Notice, 22 FCC Rcd 9247 (2007).
59
Id.
60
See Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders Announced for Auction 78, Public 
Notice, 23 FCC Rcd 12749 (WTB 2008).
61
Id.
62
47 C.F.R. § 90.814(b)(1).
63
Id. 
Federal Communications Commission FCC 14-61
76
business size standards for the 900 MHz Service.
64
  The Commission has held auctions for geographic 
area licenses in the 800 MHz and 900 MHz bands.  The 900 MHz SMR auction began on December 5, 
1995, and closed on April 15, 1996.  Sixty bidders claiming that they qualified as small businesses under 
the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band.  The 800 
MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on 
December 8, 1997.  Ten bidders claiming that they qualified as small businesses under the $15 million 
size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band.
65
  A 
second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and 
included 23 BEA licenses.  One bidder claiming small business status won five licenses.
66
27. The auction of the 1,053 800 MHz SMR geographic area licenses for the General 
Category channels began on August 16, 2000, and was completed on September 1, 2000.  Eleven bidders 
won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and 
qualified as small businesses under the $15 million size standard.
67
  In an auction completed on December 
5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service 
were awarded.
68
  Of the 22 winning bidders, 19 claimed small business status and won 129 licenses.  
Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band 
claimed status as small businesses.
28. In addition, there are numerous incumbent site-by-site SMR licenses and licensees with 
extended implementation authorizations in the 800 and 900 MHz bands.  We do not know how many 
firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation 
authorizations, nor how many of these providers have annual revenues of no more than $15 million.  One 
firm has over $15 million in revenues.  In addition, we do not know how many of these firms have 1,500 
or fewer employees, which is the SBA-determined size standard.
69
  We assume, for purposes of this 
analysis, that all of the remaining extended implementation authorizations are held by small entities, as 
defined by the SBA.
29. Lower 700 MHz Band Licenses.  The Commission previously adopted criteria for 
defining three groups of small businesses for purposes of determining their eligibility for special 
provisions such as bidding credits.
70
  The Commission defined a “small business” as an entity that, 
together with its affiliates and controlling principals, has average gross revenues not exceeding $40 
million for the preceding three years.
71
  A “very small business” is defined as an entity that, together with 
its affiliates and controlling principals, has average gross revenues that are not more than $15 million for 
the preceding three years.
72
  Additionally, the lower 700 MHz Service had a third category of small 
                                                     
64
See Letter from Aida Alvarez, Administrator, SBA, to Thomas Sugrue, Chief, Wireless Telecommunications 
Bureau, Federal Communications Commission (filed Aug. 10, 1999) (Alvarez Letter 1999).
65
See Correction to Public Notice DA 96-586 “FCC Announces Winning Bidders in the Auction of 1020 Licenses to 
Provide 900 MHz SMR in Major Trading Areas,” Public Notice, 18 FCC Rcd 18367 (WTB 1996).
66
See Multi-Radio Service Auction Closes, Public Notice, 17 FCC Rcd 1446 (WTB 2002).
67
See 800 MHz Specialized Mobile Radio (SMR) Service General Category (851–854 MHz) and Upper Band (861–
865 MHz) Auction Closes; Winning Bidders Announced, Public Notice, 15 FCC Rcd 17162 (2000).
68
See 800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced, Public Notice, 
16 FCC Rcd 1736 (2000).
69
See generally 13 C.F.R. § 121.201, NAICS code 517210.
70
See Reallocation and Service Rules for the 698–746 MHz Spectrum Band (Television Channels 52–59), GN 
Docket No. 01-74, Report and Order, 17 FCC Rcd 1022 (2002) (Channels 52–59 Report and Order).
71
See id. at 1087-88, para. 172.
72
See id.
Federal Communications Commission FCC 14-61
77
business status for Metropolitan/Rural Service Area (MSA/RSA) licenses—“entrepreneur”—which is 
defined as an entity that, together with its affiliates and controlling principals, has average gross revenues 
that are not more than $3 million for the preceding three years.
73
  The SBA approved these small size 
standards.
74
  An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in 
each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on 
September 18, 2002.  Of the 740 licenses available for auction, 484 licenses were won by 102 winning 
bidders.  Seventy-two of the winning bidders claimed small business, very small business or entrepreneur 
status and won a total of 329 licenses.
75
  A second auction commenced on May 28, 2003, closed on June 
13, 2003, and included 256 licenses:  5 EAG licenses and 476 Cellular Market Area licenses.
76
  Seventeen 
winning bidders claimed small or very small business status and won 60 licenses, and nine winning 
bidders claimed entrepreneur status and won 154 licenses.
77
  On July 26, 2005, the Commission 
completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60).  There were three 
winning bidders for five licenses.  All three winning bidders claimed small business status.
30. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 
MHz Second Report and Order.
78
  An auction of 700 MHz licenses commenced January 24, 2008 and 
closed on March 18, 2008, which included, 176 Economic Area licenses in the A Block, 734 Cellular 
Market Area licenses in the B Block, and 176 EA licenses in the E Block.
79
  Twenty winning bidders, 
claiming small business status (those with attributable average annual gross revenues that exceed $15 
million and do not exceed $40 million for the preceding three years) won 49 licenses.  Thirty three 
winning bidders claiming very small business status (those with attributable average annual gross 
revenues that do not exceed $15 million for the preceding three years) won 325 licenses.
31. Upper 700 MHz Band Licenses.  In the 700 MHz Second Report and Order, the 
Commission revised its rules regarding Upper 700 MHz licenses.
80
  On January 24, 2008, the 
Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were 
available for licensing:  12 Regional Economic Area Grouping licenses in the C Block, and one 
nationwide license in the D Block.
81
  The auction concluded on March 18, 2008, with 3 winning bidders 
claiming very small business status (those with attributable average annual gross revenues that do not 
exceed $15 million for the preceding three years) and winning five licenses.
                                                     
73
See id., at 1088, para. 173.
74
See Alvarez Letter 1999.
75
See Lower 700 MHz Band Auction Closes, Public Notice, 17 FCC Rcd 17272 (WTB 2002).
76
See id. 
77
See id.
78
Service Rules for the 698–746, 747–762 and 777–792 MHz Band; Revision of the Commission’s Rules to Ensure 
Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission’s Rules 
Governing Hearing Aid-Compatible Telephones; Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27,
and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel 
Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules; 
Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development 
of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety 
Communications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement under 
Commission’s Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No. 
06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15359 n. 434 (2007) (700 MHz 
Second Report and Order).
79
See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).
80
700 MHz Second Report and Order, 22 FCC Rcd 15289.
81
See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).
Federal Communications Commission FCC 14-61
78
32. 700 MHz Guard Band Licensees.  In 2000, in the 700 MHz Guard Band Order, the 
Commission adopted size standards for “small businesses” and “very small businesses” for purposes of 
determining their eligibility for special provisions such as bidding credits and installment payments.
82
  A 
small business in this service is an entity that, together with its affiliates and controlling principals, has 
average gross revenues not exceeding $40 million for the preceding three years.
83
  Additionally, a very 
small business is an entity that, together with its affiliates and controlling principals, has average gross 
revenues that are not more than $15 million for the preceding three years.
84
  SBA approval of these 
definitions is not required.
85
  An auction of 52 Major Economic Area licenses commenced on September 
6, 2000, and closed on September 21, 2000.
86
  Of the 104 licenses auctioned, 96 licenses were sold to nine 
bidders.  Five of these bidders were small businesses that won a total of 26 licenses.  A second auction of 
700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001.  All 
eight of the licenses auctioned were sold to three bidders.  One of these bidders was a small business that 
won a total of two licenses.
87
33. Air-Ground Radiotelephone Service.  The Commission has previously used the SBA’s 
small business size standard applicable to Wireless Telecommunications Carriers (except Satellite), i.e., 
an entity employing no more than 1,500 persons.
88
  There are approximately 100 licensees in the Air-
Ground Radiotelephone Service, and under that definition, we estimate that almost all of them qualify as 
small entities under the SBA definition.  For purposes of assigning Air-Ground Radiotelephone Service 
licenses through competitive bidding, the Commission has defined “small business” as an entity that, 
together with controlling interests and affiliates, has average annual gross revenues for the preceding 
three years not exceeding $40 million.
89
  A “very small business” is defined as an entity that, together 
with controlling interests and affiliates, has average annual gross revenues for the preceding three years 
not exceeding $15 million.
90
  These definitions were approved by the SBA.
91
  In May 2006, the 
Commission completed an auction of nationwide commercial Air-Ground Radiotelephone Service 
licenses in the 800 MHz band (Auction No. 65).  On June 2, 2006, the auction closed with two winning 
                                                     
82
See Service Rules for the 746–764 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket 
No. 99-168, Second Report and Order, 15 FCC Rcd 5299 (2000) (746–764 MHz Band Second Report and Order).
83
See id. at 5343, para. 108.
84
See id.
85
See id. at 5343, para. 108 n.246 (for the 746–764 MHz and 776–794 MHz bands, the Commission is exempt from 
15 U.S.C. § 632, which requires Federal agencies to obtain SBA approval before adopting small business size 
standards).
86
See 700 MHz Guard Bands Auction Closes:  Winning Bidders Announced, Public Notice, 15 FCC Rcd 18026 
(WTB 2000).
87
See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 16 FCC Rcd 4590 (WTB 
2001).
88
13 C.F.R. § 121.201, NAICS codes 517210.
89
Amendment of Part 22 of the Commission’s Rules to Benefit the Consumers of Air-Ground Telecommunications 
Services, Biennial Regulatory Review—Amendment of Parts 1, 22, and 90 of the Commission’s Rules, Amendment of 
Parts 1 and 22 of the Commission’s Rules to Adopt Competitive Bidding Rules for Commercial and General 
Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103, 05-42, Order on Reconsideration and Report 
and Order, 20 FCC Rcd 19663, paras. 28-42 (2005).
90
Id.
91
See Letter from Hector V. Barreto, Administrator, SBA, to Gary D. Michaels, Deputy Chief, Auctions and 
Spectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission (filed 
Sept. 19, 2005).
Federal Communications Commission FCC 14-61
79
bidders winning two Air-Ground Radiotelephone Services licenses.  Neither of the winning bidders 
claimed small business status.
34. AWS Services (1710–1755 MHz  and 2110–2155 MHz bands (AWS-1); 1915–1920 MHz,
1995–2000 MHz, 2020–2025 MHz and 2175–2180 MHz bands (AWS-2); 2155–2175 MHz band (AWS-
3)).  For the AWS-1 bands,
92
the Commission has defined a “small business” as an entity with average 
annual gross revenues for the preceding three years not exceeding $40 million, and a “very small 
business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 
million.  For AWS-2 and AWS-3, although we do not know for certain which entities are likely to apply 
for these frequencies, we note that the AWS-1 bands are comparable to those used for cellular service and 
personal communications service.  The Commission has not yet adopted size standards for the AWS-2 or 
AWS-3 bands but proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS service and 
AWS-1 service due to the comparable capital requirements and other factors, such as issues involved in 
relocating incumbents and developing markets, technologies, and services.
93
35. 3650–3700 MHz band.  In March 2005, the Commission released a Report and Order 
and Memorandum Opinion and Order that provides for nationwide, non-exclusive licensing of terrestrial 
operations, utilizing contention-based technologies, in the 3650 MHz band (i.e., 3650–3700 MHz).  As of 
April 2010, more than 1270 licenses have been granted and more than 7433 sites  have been registered.  
The Commission has not developed a definition of small entities applicable to 3650–3700 MHz band 
nationwide, non-exclusive licensees.  However, we estimate that the majority of these licensees are 
Internet Access Service Providers (ISPs) and that most of those licensees are small businesses.
36. Fixed Microwave Services.  Microwave services include common carrier,
94
private-
operational fixed,
95
and broadcast auxiliary radio services.
96
  They also include the Local Multipoint 
Distribution Service (LMDS),
97
the Digital Electronic Message Service (DEMS),
98
and the 24 GHz 
Service,
99
where licensees can choose between common carrier and non-common carrier status.
100
  At 
present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-
fixed licensees and broadcast auxiliary radio licensees in the microwave services.  There are 
approximately 135 LMDS licensees, three DEMS licensees, and three 24 GHz licensees.  The 
                                                     
92
The service is defined in section 90.1301 et seq. of the Commission’s Rules, 47 C.F.R. § 90.1301 et seq.
93
See Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, 
Report and Order, 18 FCC Rcd 25162, Appx. B (2003), modified by Service Rules for Advanced Wireless Services 
in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Order on Reconsideration, 20 FCC Rcd 14058, Appx. 
C (2005); Service Rules for Advanced Wireless Services in the 1915–1920 MHz, 1995–2000 MHz, 2020–2025 MHz 
and 2175–2180 MHz Bands; Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT 
Docket Nos. 04-356, 02-353, Notice of Proposed Rulemaking, 19 FCC Rcd 19263, Appx. B (2005); Service Rules 
for Advanced Wireless Services in the 2155–2175 MHz Band, WT Docket No. 07-195, Notice of Proposed 
Rulemaking, 22 FCC Rcd 17035, Appx. (2007).
94
See 47 C.F.R. Part 101, Subparts C and I.
95
See 47 C.F.R. Part 101, Subparts C and H.
96
Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules.  See 47 C.F.R. Part 
74.  Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary 
microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between 
two points such as a main studio and an auxiliary studio.  The service also includes mobile TV pickups, which relay 
signals from a remote location back to the studio.
97
See 47 C.F.R. Part 101, Subpart L.
98
See 47 C.F.R. Part 101, Subpart G.
99
See id.
100
See 47 C.F.R. §§ 101.533, 101.1017.
Federal Communications Commission FCC 14-61
80
Commission has not yet defined a small business with respect to microwave services.  For purposes of the 
IRFA, we will use the SBA’s definition applicable to Wireless Telecommunications Carriers (except 
satellite)—i.e., an entity with no more than 1,500 persons.
101
  Under the present and prior categories, the 
SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.
102
  For the category of 
Wireless Telecommunications Carriers (except Satellite), data for 2011 show that there were 784 firms 
operating that year.
103
  While the Census Bureau has not released data on the establishments broken down 
by number of employees, we note that the Census Bureau lists total employment for all firms in that 
sector at 245,875.
104
  Since all firms with fewer than 1,500 employees are considered small, given the 
total employment in the sector, we estimate that the vast majority of firms using microwave services are 
small.  We note that the number of firms does not necessarily track the number of licensees.  We estimate 
that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would 
qualify as small entities under the SBA definition.
37. Broadband Radio Service and Educational Broadband Service.  Broadband Radio 
Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel 
Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to 
subscribers and provide two-way high speed data operations using the microwave frequencies of the 
Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the 
Instructional Television Fixed Service (ITFS)).
105
  In connection with the 1996 BRS auction, the 
Commission established a small business size standard as an entity that had annual average gross 
revenues of no more than $40 million in the previous three calendar years.
106
  The BRS auctions resulted 
in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs).  Of the 67 
auction winners, 61 met the definition of a small business.  BRS also includes licensees of stations 
authorized prior to the auction.  At this time, we estimate that of the 61 small business BRS auction 
winners, 48 remain small business licensees.  In addition to the 48 small businesses that hold BTA 
authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.
107
  
After adding the number of small business auction licensees to the number of incumbent licensees not 
already counted, we find that there are currently approximately 440 BRS licensees that are defined as 
small businesses under either the SBA or the Commission’s rules.
38. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS 
areas.
108
  The Commission offered three levels of bidding credits: (i) a bidder with attributed average 
                                                     
101
13 C.F.R. § 121.201, NAICS code 517210.
102
13 C.F.R. § 121.201, NAICS code 517210 (2007 NAICS).  The now-superseded, pre-2007 C.F.R. citations were 
13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
103
U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 517210 (released Dec. 2013) (employment size).  
http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls
104
Id.
105
Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the 
Communications Act—Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10 
FCC Rcd 9589, 9593, para. 7 (1995).
106
47 C.F.R. § 21.961(b)(1).
107
47 U.S.C. § 309(j).  Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of 
Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j).  For these pre-auction licenses, the 
applicable standard is SBA’s small business size standard of 1500 or fewer employees.
108
Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing 
Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, AU Docket No. 
09-56, Public Notice, 24 FCC Rcd 8277 (2009).
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annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three 
years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed 
average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding 
three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with 
attributed average annual gross revenues that do not exceed $3 million for the preceding three years 
(entrepreneur) received a 35 percent discount on its winning bid.
109
  Auction 86 concluded in 2009 with 
the sale of 61 licenses.
110
  Of the ten winning bidders, two bidders that claimed small business status won 
4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that 
claimed entrepreneur status won six licenses.
39. In addition, the SBA’s Cable Television Distribution Services small business size 
standard is applicable to EBS.  There are presently 2,436 EBS licensees.  All but 100 of these licenses are 
held by educational institutions.  Educational institutions are included in this analysis as small entities.
111
  
Thus, we estimate that at least 2,336 licensees are small businesses.  Since 2007, Cable Television 
Distribution Services have been defined within the broad economic census category of Wired 
Telecommunications Carriers; that category is defined as follows:  “This industry comprises 
establishments primarily engaged in operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using 
wired telecommunications networks.  Transmission facilities may be based on a single technology or a 
combination of technologies.”
112
  The SBA has developed a small business size standard for this category, 
which is:  all such firms having 1,500 or fewer employees.  To gauge small business prevalence for these 
cable services we must, however, use the most current census data that are based on the previous category 
of Cable and Other Program Distribution and its associated size standard; that size standard was:  all such 
firms having $13.5 million or less in annual receipts.
113
  According to Census Bureau data for 2007, there 
were a total of 996 firms in this category that operated for the entire year.
114
  Of this total, 948 firms had 
annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25 
million.
115
  Thus, the majority of these firms can be considered small.
5. Satellite Service Providers
40. Satellite Telecommunications Providers.  Two economic census categories address the 
satellite industry.  The first category has a small business size standard of $30 million or less in average 
annual receipts, under SBA rules.
116
  The second has a size standard of $30 million or less in annual 
receipts.
117
                                                     
109
Id. at 8296 para. 73.
110
Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down 
Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, 
Public Notice, 24 FCC Rcd 13572 (2009).
111
The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental 
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of 
less than 50,000).  5 U.S.C. §§ 601(4)-(6).  We do not collect annual revenue data on EBS licensees.
112
U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial 
definition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012. 
113
13 C.F.R. § 121.201, NAICS code 517110.
114
U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, Receipts by Enterprise Employment 
Size for the United States:  2007, NAICS code 517510 (released Nov. 19, 2010).
115
Id. 
116
13 C.F.R. § 121.201, NAICS Code 517410.
117
13 C.F.R. § 121.201, NAICS Code 517919.
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41. The category of Satellite Telecommunications “comprises establishments primarily 
engaged in providing telecommunications services to other establishments in the telecommunications and 
broadcasting industries by forwarding and receiving communications signals via a system of satellites or 
reselling satellite telecommunications.”
118
  For this category, Census Bureau data for 2007 show that there 
were a total of 570 firms that operated for the entire year.
119
  Of this total, 530 firms had annual receipts of 
under $30 million, and 40 firms had receipts of over $30 million.
120
  Consequently, we estimate that the 
majority of Satellite Telecommunications firms are small entities that might be affected by our action.
42. The second category of Other Telecommunications comprises, inter alia, “establishments 
primarily engaged in providing specialized telecommunications services, such as satellite tracking, 
communications telemetry, and radar station operation.  This industry also includes establishments 
primarily engaged in providing satellite terminal stations and associated facilities connected with one or 
more terrestrial systems and capable of transmitting telecommunications to, and receiving 
telecommunications from, satellite systems.”
121
  For this category, Census Bureau data for 2007 show that 
there were a total of 1,274 firms that operated for the entire year.
122
  Of this total, 1,252 had annual 
receipts below $25 million per year.
123
  Consequently, we estimate that the majority of All Other 
Telecommunications firms are small entities that might be affected by our action.
6. Cable Service Providers
43. Because section 706 requires us to monitor the deployment of broadband using any 
technology, we anticipate that some broadband service providers may not provide telephone service.  
Accordingly, we describe below other types of firms that may provide broadband services, including 
cable companies, MDS providers, and utilities, among others.
44. Cable and Other Program Distributors.  Since 2007, these services have been defined 
within the broad economic census category of Wired Telecommunications Carriers; that category is 
defined as follows:  “This industry comprises establishments primarily engaged in operating and/or 
providing access to transmission facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired telecommunications networks.  
Transmission facilities may be based on a single technology or a combination of technologies.”
124
  The 
SBA has developed a small business size standard for this category, which is:  all such firms having 1,500 
or fewer employees.  To gauge small business prevalence for these cable services we must, however, use 
current census data that are based on the previous category of Cable and Other Program Distribution and 
its associated size standard; that size standard was:  all such firms having $13.5 million or less in annual 
receipts.
125
  According to Census Bureau data for 2007, there were a total of 2,048 firms in this category 
                                                     
118
U.S. Census Bureau, 2012 NAICS Definitions, “517410 Satellite Telecommunications,” 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517410&search=2012.
119
U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 517410 (released Nov. 19, 2010).
120
Id.  
121
U.S. Census Bureau, 2012 NAICS Definitions, “517919 All Other Telecommunications,” 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012. 
122
U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 517410 (released Nov. 19, 2010).
123
Id.  
124
U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial 
definition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012.
125
13 C.F.R. § 121.201, NAICS code 517110.
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that operated for the entire year.
126
  Of this total, 1,393 firms had annual receipts of under $10 million, and 
655 firms had receipts of $10 million or more.
127
  Thus, the majority of these firms can be considered 
small.
45. Cable Companies and Systems.  The Commission has also developed its own small 
business size standards, for the purpose of cable rate regulation.  Under the Commission’s rules, a “small 
cable company” is one serving 400,000 or fewer subscribers, nationwide.
128
  Industry data shows that 
there were 1,141 cable companies at the end of June 2012.
129
  Of this total, all but ten cable operators 
nationwide are small under this size standard.
130
In addition, under the Commission’s rules, a “small 
system” is a cable system serving 15,000 or fewer subscribers.
131
  Current Commission records show 
4,945 cable systems nationwide.
132
  Of this total, 4,380 cable systems have less than 20,000 subscribers, 
and 565 systems have 20,000 or more subscribers, based on the same records.  Thus, under this standard, 
we estimate that most cable systems are small entities.
46. Cable System Operators.  The Communications Act of 1934, as amended, also contains a 
size standard for small cable system operators, which is “a cable operator that, directly or through an 
affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not 
affiliated with any entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.”
133
  The Commission has determined that an operator serving fewer than 677,000 
subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual 
revenues of all its affiliates, do not exceed $250 million in the aggregate.
134
  Based on available data, we 
find that all but ten incumbent cable operators are small entities under this size standard.
135
  We note that 
                                                     
126
U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS code 517110 (released Nov. 19, 2010).
127
Id.  
128
47 C.F.R. § 76.901(e).  The Commission determined that this size standard equates approximately to a size 
standard of $100 million or less in annual revenues.  Implementation of Sections of the 1992 Cable Act: Rate 
Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
129
NCTA, Industry Data, Number of Cable Operating Companies (June 2012), http://www.ncta.com/Statistics.aspx 
(visited Sept. 28, 2012).  Depending upon the number of homes and the size of the geographic area served, cable 
operators use one or more cable systems to provide video service.  See Annual Assessment of the Status of 
Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report, 28 FCC 
Rcd 10496, 10505-06, para. 24 (2013) (15
th
Annual Competition Report).
130
See SNL Kagan, “Top Cable MSOs – 12/12 Q”, 
http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2012Q4&sortcol=subscribersbasic&sortorder=desc.  
We note that, when applied to an MVPD operator, under this size standard (i.e., 400,000 or fewer subscribers) all 
but 14 MVPD operators would be considered small.  See NCTA, Industry Data, Top 25 Multichannel Video Service 
Customers (2012), http://www.ncta.com/industry-data.  The Commission applied this size standard to MVPD 
operators in its implementation of the CALM Act.  See Implementation of the Commercial Advertisement Loudness 
Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, 26 FCC Rcd 17222, 17245-46, para. 37 (2011) 
(CALM Act Report and Order) (defining a smaller MVPD operator as one serving 400,000 or fewer subscribers 
nationwide, as of December 31, 2011).
131
47 C.F.R. § 76.901(c).
132
The number of active, registered cable systems comes from the Commission’s Cable Operations and Licensing 
System (COALS) database on Aug. 28, 2013.  A cable system is a physical system integrated to a principal headend.
133
47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn.1-3.
134
47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator, 
Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001).
135
See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industry-
data.
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the Commission neither requests nor collects information on whether cable system operators are affiliated 
with entities whose gross annual revenues exceed $250 million,
136
and therefore we are unable to estimate 
more accurately the number of cable system operators that would qualify as small under this size 
standard.
7. Electric Power Generators, Transmitters, and Distributors
47. Electric Power Generators, Transmitters, and Distributors.  The Census Bureau defines 
an industry group comprised of “establishments, primarily engaged in generating, transmitting, and/or 
distributing electric power.  Establishments in this industry group may perform one or more of the 
following activities:  (1) operate generation facilities that produce electric energy; (2) operate 
transmission systems that convey the electricity from the generation facility to the distribution system; 
and (3) operate distribution systems that convey electric power received from the generation facility or 
the transmission system to the final consumer.”
137
  The SBA has developed a small business size standard 
for firms in this category:  “A firm is small if, including its affiliates, it is primarily engaged in the 
generation, transmission, and/or distribution of electric energy for sale and its total electric output for the 
preceding fiscal year did not exceed 4 million megawatt hours.”
138
  According to Census Bureau data for 
2011, there were 2,419 firms in this category that operated for the entire year.
139
  Census data do not track 
electric output and we have not determined how many of these firms fit the SBA size standard for small, 
with no more than 4 million megawatt hours of electric output.  Consequently, we estimate that 2,419 or 
fewer firms may be considered small under the SBA small business size standard.
D. Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
48. As indicated above, the Notice seeks comment on possible enhancements to the 
Commission’s existing transparency rule that may impose additional reporting, recordkeeping, or other 
compliance requirements on some small entities.
140
  While the Notice tentatively concludes that the 
Commission should enhance the transparency rule to improve its effectiveness for end users, edge 
providers, the Internet community, and the Commission, the Notice does not propose specific revisions to 
the existing transparency rule.  As described above, the Notice also seeks comment on a dispute 
resolution process that would, if adopted, potentially require small entities to respond to complaints or 
otherwise participate in dispute resolution procedures.
141
One feature of the enforcement mechanism as 
discussed in the Notice, includes a proposal to establish the role of an ombudsperson who would act as a 
watchdog to represent the interests of start-ups and other small entities in addition to consumers.
E. Steps Taken to Minimize the Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
49. The RFA requires an agency to describe any significant alternatives that it has considered 
in reaching its proposed approach, which may include (among others) the following four alternatives:  
                                                     
136
The Commission does receive such information on a case-by-case basis if a cable operator appeals a local 
franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of 
the Commission’s rules.  See 47 C.F.R. § 76.909(b).
137
U.S. Census Bureau, 2002 NAICS Definitions, “2211 Electric Power Generation, Transmission and 
Distribution,” http://www.census.gov/epcd/naics02/def/NDEF221.HTM (last visited Oct. 21, 2009).
138
13 C.F.R. § 121.201, NAICS codes 221111, 221112, 221113, 221119, 221121, 221122, n. 1.
139
U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, “Establishment and Firm Size,” 
NAICS codes 221111, 221112, 221113, 221119, 221121, 221122 (released Dec. 2013) (employment size).  
http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls.
140
See Notice, Section III.
141
See supra para. 7.
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(1) the establishment of differing compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather 
than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small 
entities.
142
  We expect to consider all of these factors when we have received substantive comment from 
the public and potentially affected entities.
50. The Commission expects to consider the economic impact on small entities, as identified 
in comments filed in response to the Notice and this IRFA, in reaching its final conclusions and taking 
action in this proceeding.    
51. We note, though, that the potential enhancements to the transparency rule, the proposed 
mechanism for individualized decision-making under the proposed enforceable legal standard of 
commercially reasonable practices, and various aspects of the proposed dispute resolution process all 
contemplate a certain amount of flexibility that may be helpful to small entities.  For example, the 
Commission seeks comment on whether there are ways the Commission or industry associations could 
reduce burdens on broadband providers in complying with the proposed enhanced transparency rule 
through the use of a voluntary industry standardized glossary, or through the creation of a dashboard that 
permits easy comparison of the policies, procedures, and prices of various broadband providers 
throughout the country.  We seek comment here on the effect the various proposals described in the 
Notice, and summarized above, will have on small entities, and on what effect alternative rules would 
have on those entities.  How can the Commission achieve its goal of protecting and promoting an open 
Internet while also imposing minimal burdens on small entities?  What specific steps could the 
Commission take in this regard?   
F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules
52. None.
                                                     
142
5 U.S.C. § 603(c).
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STATEMENT OF
CHAIRMAN TOM WHEELER
Re:   Protecting and Promoting the Open Internet, GN Docket No. 14-28.
I strongly support an open, fast and robust Internet.  This agency supports an Open Internet. 
There is ONE Internet.  Not a fast internet, not a slow internet; ONE Internet.
The attention being paid to this topic is proof of why the open and free exchange of information 
must be protected.  Thank you to the thousands who have emailed me personally.  Thank you to those 
who felt so strongly about the issue that they camped outside.  The Founding Fathers must be looking 
down and smiling at how the republic they created is practicing the ideals they established.
By releasing this Item today those who have been expressing themselves will now be able to see 
what we are actually proposing.  They have been heard, we look forward to further input, and we say 
thank you.
Today we take another step in what has been a decade-long effort to preserve and protect the 
Open Internet.  Unfortunately, those previous efforts were blocked twice by court challenges by those 
who sell Internet connections to consumers.  Today this agency moves to surmount that opposition and to 
stand up for consumers and the Open Internet.
This Notice of Proposed Rulemaking starts an important process.  Where it ends depends on what 
we learn during this process.  That is why I am grateful for all the attention this topic has received.
We start with the simple, obvious premise: Protecting the Open Internet is important both to 
consumers and to economic growth.  We are dedicated to protecting and preserving an Open Internet.
What we are dealing with today is a proposal, not a final rule.  With this Notice we are 
specifically asking for input on different approaches to accomplish the same goal: an Open Internet.
The potential for there to be some kind of “fast lane” available to only a few has many people 
concerned.  Personally, I don’t like the idea that the Internet could become divided into “haves” and 
“have nots.”  I will work to see that does not happen.  In this Item we specifically ask whether and how to 
prevent the kind of paid prioritization that could result in “fast lanes.”
Two weeks ago I told the convention of America’s cable broadband providers something that is 
worth repeating here, “If someone acts to divide the Internet between ‘haves’ and ‘have nots,’”  I told the 
cable industry, “we will use every power at our disposal to stop it.”  I will take a backseat to no one that 
privileging some network users in a manner that squeezes out smaller voices is unacceptable.  Today, we 
have proposed how to stop that from happening, including consideration of the applicability of Title II.
There is only ONE Internet.  It must be fast, robust and open.  The speed and quality of the 
connection the consumer purchases must be unaffected by what content he or she is using.
And there has to be a level playing field of opportunity for new ideas.  Small companies and 
startups must be able to effectively reach consumers with innovative products and services and they must 
be protected against harmful conduct by broadband providers.  The prospect of a gatekeeper choosing 
winners and losers on the Internet is unacceptable.
Let’s look at how the Internet works at the retail level.  The consumer accesses the Internet using 
connectivity provided by an Internet Service Provider (ISP).  That connectivity should be open and 
Federal Communications Commission FCC 14-61
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inviolate; it is the simple purchase of a pathway.  I believe it would be commercially unreasonable – and 
therefore not permitted– for the ISP not to deliver the contracted-for open pathway.
Let’s consider specifically what that means.  I want to get to rules that work like this:
? If the network operator slowed the speed below that which the consumer bought (for reasons 
other than reasonable network management), it would be a commercially unreasonable 
practice and therefore prohibited,
? If the network operator blocked access to lawful content, it would violate our no blocking 
rule and be commercially unreasonable and therefore doubly prohibited,
? When content provided by a firm such as Netflix reaches the consumer’s network provider it 
would be commercially unreasonable to charge the content provider to use the bandwidth for 
which the consumer had already paid and therefore prohibited,
? When a consumer buys specified capacity from a network provider he or she is buying open 
capacity, not capacity the network can prioritize for its own profit purposes.  Prioritization 
that deprives the consumer of what the consumer has paid for would be commercially 
unreasonable and therefore prohibited.
Simply put, when a consumer buys a specified bandwidth, it is commercially unreasonable – and 
thus a violation of this proposal – to deny them the full connectivity and the full benefits that connection 
enables.
Also included in this proposal are two new powers for those who use the Internet and for the 
Commission:
? Expanded transparency will require networks to inform on themselves: The proposal 
expands the existing transparency rules to require that networks disclose any practices that 
could change a consumer’s or a content provider’s relationship with the network.  I thus 
anticipate that, if a network ever planned to take an action that would affect a content 
provider’s access there would be time for the FCC to consider petitions to review such an 
action.
? Voice for the Average American: Recognizing that Internet entrepreneurs and consumers 
shouldn’t have to hire a lawyer to call the Commission’s attention to a grievance, an 
Ombudsperson would be created within the FCC to receive their complaints and, where 
warranted, investigate and represent their case.
Separate and apart from this connectivity is the question of interconnection (“peering”) between 
the consumer’s network provider and the various networks that deliver to that ISP.  That is a different 
matter that is better addressed separately.  Today’s proposal is all about what happens on the broadband 
provider’s network and how the consumer’s connection to the Internet may not be interfered with or 
otherwise compromised.
The situation in which this Commission finds itself is inherited from the actions of previous 
Commissions over the last decade.  The D.C. Circuit’s ruling in January of this year upheld our 
determination that we need rules to protect Internet openness, and upheld our authority under Section 706 
to adopt such rules, even while it found that portions of the 2010 Open Internet Order were beyond the 
scope of our authority.  In response, I promptly stated that we would reinstate rules that achieve the goals 
of the 2010 Order using the Section 706-based roadmap laid out by the court.  That is what we are 
proposing today.
Section 706 is one of the two principal methods proposed to accomplish the goals of an Open 
Internet.  Today we are seeking input on both Section 706 and Title II of the Communications Act.  We 
Federal Communications Commission FCC 14-61
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are specifically asking for input as to the benefits of each and why one might be preferable to 
another.  We have established a lengthy comment and reply period sufficient to allow everyone an 
opportunity to participate.
As a former entrepreneur and venture capitalist, I know the importance of openness first hand.  
As an entrepreneur, I have had products and services shut out of closed cable networks.  As a VC, I 
invested in companies that wouldn’t have been able to innovate if the Internet weren’t open.  I have 
hands-on experience with the importance of network openness.
I will not allow the national asset of an Open Internet to be compromised.  I understand this 
issue in my bones.  I can show you the scars from when my companies were denied open access in the 
pre-Internet days.
The consideration we are beginning today is not about whether the Internet must be open, but 
about how and when we will have rules in place to assure an Open Internet.  My preference has been to 
follow the roadmap laid out by the D.C. Circuit in the belief that it was the fastest and best way to get 
protections in place.  I have also indicated repeatedly that I am open to using Title II.
This rulemaking begins the process by putting forth a proposal, asking important and specific 
questions, and opening the discussion to all Americans.  We look forward to hearing feedback on all these 
approaches.
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STATEMENT OF 
COMMISSIONER MIGNON L. CLYBURN 
Re:   Protecting and Promoting the Open Internet, GN Docket No. 14-28.
When my mother calls, with public policy concerns, I know there is a problem. 
In my 16 years as a public servant, Emily Clyburn has never called me about a substantive issue 
under consideration.  Not during my time serving on the South Carolina Public Service Commission.  Not 
during my tenure here as a Commissioner nor as Acting Chairwoman.  Never.  But all of that changed on 
Monday, April 28
th
.
Please indulge me for a moment.  My mother is a very organized, intuitive and intelligent woman.  
She was a medical librarian and earned a master’s degree while she raised three girls. She is smart, 
thoughtful and engaged.  She is a natural researcher.  So when she picked up the phone to call me about 
this issue, I knew for sure something was just not right.    
She gave voice to three basic questions which, and as of today’s date, her message remains on my 
telephone and in personal memory banks:  (1) “what is this net neutrality issue?” (2) “can providers do 
what they want to do?” and (3) “did it already pass?”  
So, like any good daughter with an independent streak, I will directly answer my mother’s 
questions in my own time and in my own way.  But her inquiry truly echoes the calls, emails and letters I 
have received from thousands of consumers, investors, startups, healthcare providers, educators and 
others across the country who are equally concerned and confused.  All of this demonstrates, (no pun 
intended) how fundamental the Internet has become for all of us.  
So, why are we here, and exactly what is net neutrality or Open Internet?  First, let me start 
from a place where I believe most of us can agree that a free and open exchange of ideas is critical to a 
democratic society.  Consumers with the ability to visit whatever website and access any lawful content 
of their choice, interact with their government, apply for a job, even monitor their household devices.  
Educators have the capacity to leverage the best digital learning tools for their students.  Healthcare 
providers treating their patients with the latest technologies – all of this occurring without those services 
or content being discriminated against or blocked.  
All content, all “bits,” being treated equally.  Small startups on a shoestring budget with novel 
ideas have the ability to reach millions of people and compete on equal footing with those established 
players and their considerable budgets. Innovation abounds with new applications, technologies and 
services.  
At its core, an open Internet means that consumers, not a company, not the government, 
determine winners and losers.  It is the free market at its best.  All of this, however, does not nor will it 
ever, occur organically.  Without rules governing a free and open Internet it is possible that companies –
fixed and wireless broadband providers – could independently determine whether they want to 
discriminate or block content, pick favorites, charge higher fees or distort the market.  
I have been listening to concerns not just from my mother, but from thousands of consumers and 
interested parties.  Startups that fear, they “won’t even get a chance to succeed,” if access to consumers is 
controlled by corporations, rather than a competitive level playing field.  Investors who say they will be 
reticent to commit money to new companies because they are concerned that their new service will not be 
able to reach consumers in the marketplace because of high costs or differential treatment.  
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Educators, even where there is a high capacity connection at the school, feel that their students 
may not be able to take advantage of the best in digital learning if the quality of the content is poor. 
Healthcare professionals worrying that the images they need to view will load too slowly and that patients 
will be unable to benefit from the latest technologies and specialized care made possible through remote 
monitoring.  And, I am hearing from everyday people, who say that we need to maintain the openness of 
the Internet and that this openness enables today’s discourse to be viewed by thousands, and offers them 
the ability to interact directly with policy makers and engage in robust exchanges like we are experiencing 
today.  
In fact, let me say how impressed I was when I spoke with some of you on Maine Street earlier 
this week.  You came to Washington from North Carolina, New York, Pennsylvania, and Virginia at your 
own expense to affirm just how important this issue is to you.  You made it clear that the Internet is a 
great equalizer in our society and that average consumers should have the same access to the Internet as 
those with deep pockets.
There are dozens of examples across the globe where we have seen firsthand the dangers to 
society when people are not allowed to choose.  Governments blocking access to content and stifling free 
speech and public discourse.  
Countries, including some in Europe, where providers have congested or degraded content, and 
apps are being blocked from certain mobile devices.  Hints of problems have occurred even here at home, 
particularly with regard to apps on mobile devices, even though providers in the United State, have been 
subject to net neutrality principles and rules with the threat of enforcement for over a decade. 
So, to Mom and to all of you, this is an issue about promoting our democratic values of free 
speech, competition, economic growth, and civic engagement.  
The second she posed was, can providers just do what they want?  The short answer, is yes.  
As of January we have no rules to prevent discrimination or blocking.
  
This is actually a significant change because the FCC has had policies in place dating back to 
2004, when the Commission under former Chairman, and my friend Michael Powell, unanimously 
adopted four principles of an open Internet in the Internet Policy Statement.  These principles became the 
rules of the road with the potential for enforcement.  Then, in 2010, the Commission formally adopted 
rules to promote an open Internet by preventing blocking, and unreasonable discrimination. 
When the Commission approved these rules, I explained why I would have done some things 
differently.  For instance, I would have applied the same rules to both fixed and mobile broadband; 
prohibited paid priority agreements; limited any exceptions to the rule; and I am on record as preferring a 
different legal structure.  The 2010 rules reflect a compromise… yes, Mom, I do compromise at times.  
But in January 2014, the D.C. Circuit disagreed with our legal framework … so here we are, again.
And I say again, that the court decision means that today we have no unreasonable discrimination 
or no blocking rules on the books.  Nothing prevents providers from acting in small ways that largely may 
go undetected.  And, nothing prevents them from acting in larger ways to discriminate against or even 
block certain content.  To be fair, providers have stated that they intend, for the time being, not to do so 
and have publicly committed to retain their current policies of openness.  But, for me, the issue comes 
down to whether broadband providers should have the ability to determine, on their own, whether the 
Internet is free and open OR whether we should have basic and clear rules of the road in place to ensure 
that this occurs as we have had for the last decade.  
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And, this may be surprising to some but I have chosen to view the court decision in a positive 
light for it has given us a unique opportunity to take a fresh look and evaluate our policy in light of the 
developments that have occurred in the market over the last four years, including the increased use of 
WiFi, deployment of LTE, faster speeds and connections to homes, schools, libraries, and the increased 
use of broadband on mobile devices, to name a few.  The remand enables us to issue this clarion call to 
the public where they can once again help us answer that most important question of how to protect and 
maintain a free and open Internet. That ability officially begins for everyone today.
The third question, and, judging by the headlines and subsequent reactions, my Mother is 
in good company here, was “has, it, passed?”  No, it has not, but let me explain.  Some press accounts 
have reported that the Chairman’s initial proposal is what we are voting on, and have conflated proposed 
rules with, final rules.  Neither is accurate.
For those who practice in this space, I ask that you bear with me for a moment. When the 
Chairman circulates an item, it is indeed a reflection of his vision.  My office then evaluates the proposal, 
listens to any concerns voiced by interested parties, including consumers, then considers whether we have 
concerns and, if so, what changes we want to request so that we could move to a position of support.  
This item was no different.  It is true. I too had significant concerns about the initial proposal but 
after interactions among the staff, my office, and the Chairman’s office, this item has changed 
considerably over the last few weeks and I greatly appreciate the Chairman incorporating my many 
requests to do so.  Though I still may have preferred to make portions of the draft more neutral, what we 
are voting on today asks about a number of alternatives, which will allow for a well-rounded record to 
develop, on how best to protect the public interest. 
Second, today, we are voting only on proposed rules – not final rules.  Again, this item is an 
official call inviting interested parties to comment, to discuss the pros and cons of various approaches, 
and to have a robust dialogue about the best path forward.  When the Chairman hits the gavel after votes 
are cast on this item this morning, it will signal the start of 120 unique days of opportunity each of you 
has in shaping and influencing the direction of one of the world’s most incredible platforms.  The 
feedback up until now has been nothing short of astounding but the real call to action begins after this 
vote is taken. Comments are due on July 15
th
, and there is ample time to evaluate any of the proposals and 
provide meaningful feedback.  
You have spoken and I am listening.  Your power will never be underestimated, and I sincerely 
hope that your passion continues. As I said to those I met with outside of FCC headquarters, this is your 
opportunity to formally make your point on the record.  You have the ear of the entire FCC.  The eyes of 
the world are on all of us. Use your voice and this platform to continue to be heard.
I will do all that I can independently, and with the Chairman, to identify ways to encourage a 
more interactive dialogue with all stakeholders whether through town halls, workshops, webinars, or 
social media because I know with a robust record this Commission will be able move quickly and get to 
the finish line with the adoption of permanent rules that provide certainty, and which are clear and 
enforceable.  
So, mom, I hope that answers most of your questions and I sincerely hope that you won’t feel 
compelled to ask me any more significant policy questions for another 16 years.
In all seriousness, I want to thank the dedicated staff from the Office of General Counsel, 
including Jonathan Sallet and Stephanie Weiner, as well as the Wireline Competition and Wireless 
Telecommunications Bureaus, for their work on this significant item.  And I want to especially thank my 
Wireline Legal Advisor, Rebekah Goodheart, for her expert work on this item. 
Federal Communications Commission FCC 14-61
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CONCURRING STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
Re: Protecting and Promoting the Open Internet, GN Docket No. 14-28.
I support an open Internet.  But I would have done this differently.  Before proceeding, I would 
have taken time to understand the future.  Because the future of the Internet is the future of everything.  
There is nothing in our commercial and civic lives that will be untouched by its influence or unmoved by 
its power.  I would have taken time for more input.  Because I think as public servants we have a duty to 
acknowledge and respond to the great tide of public commentary that followed in the wake of the 
Chairman’s proposal.  Even now, the phone calls continue, the e-mails pour in, and the web itself is 
ablaze with commentary on how this Commission should proceed.  
It’s no wonder.  Our Internet economy is the envy of the world.  We invented it.  The broadband 
below us and the airwaves all around us deliver its collective might to our homes and businesses in 
communities across the country.  The applications economy began here—on our shores.  What produced 
this dynamic engine of entrepreneurship and experimentation is a foundation of openness.  Sustaining 
what has made us innovative, fierce, and creative should not be a choice—it should be an obligation.  
As we proceed, we are also obligated to protect what has made the Internet the most dynamic 
platform for free speech ever invented.  It is our modern town square.  It is our printing press.  It is our 
shared platform for opportunity.  Online we are sovereign—we can choose, create, and consume content 
unimpeded by the preferences of our broadband providers.  Sustaining this freedom is essential.  
As we proceed, we also must keep front of mind the principles of fairness and protection from 
discrimination that have informed every proceeding involving the Internet that has been before this 
agency. These are the essential values in our communications laws.  They are the ones we have honored 
in the past; they must guide us in the future.  So going forward we must honor transparency, ban 
blocking, and prevent unreasonable discrimination. We cannot have a two-tiered Internet, with fast lanes 
that speed the traffic of the privileged and leave the rest of us lagging behind.  
So I support network neutrality.  But I believe the process that got us to this rulemaking today is 
flawed.  I would have preferred a delay.  I think we moved too fast to be fair.  So I concur.  But I want to 
acknowledge that the Chairman has made significant adjustments to the text of the rulemaking we adopt 
today.  He has expanded its scope and put all options on the table.  Our effort now covers law and policy, 
Section 706 and Title II.  
If past is prologue, the future of this proceeding, the future of network neutrality, and the future of 
the Internet is still being written.  I am hopeful that we can write it together—and I am mindful that we 
must get it right.  
Federal Communications Commission FCC 14-61
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DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: Protecting and Promoting the Open Internet, GN Docket No. 14-28.
A few years ago, Google’s then-CEO, Eric Schmidt, was quoted as saying:  “The Internet is the 
first thing that humanity has built that humanity doesn’t understand.”
1
  If that is so, every American who 
cares about the future of the Internet should be wary about five unelected officials deciding its fate.
After the U.S. Court of Appeals here in Washington struck down the agency’s latest attempt to 
regulate broadband providers’ network management practices,
2
I recommended that the Commission seek 
guidance from Congress instead of plowing ahead yet again on its own.  In my view, recent events have 
only confirmed the wisdom of that approach.
Let’s start by acknowledging the obvious:  The Chairman’s proposal has sparked a vigorous 
public debate.  But we should not let that debate obscure some important common ground: namely, a 
bipartisan consensus in favor of a free and open Internet.  Indeed, this consensus reaches back at least a 
decade.  In 2004, then-FCC Chairman Michael Powell outlined four principles of Internet freedom:  The 
freedom to access lawful content, the freedom to use applications, the freedom to attach personal devices 
to the network, and the freedom to obtain service plan information.
3
  One year later, the FCC 
unanimously endorsed these principles when it adopted the Internet Policy Statement.
4
Respect for these four Internet freedoms has aided the Internet’s tremendous growth over the last 
decade.  It has shielded online competitors from anticompetitive practices.  It has fostered long-term 
investments in broadband infrastructure.  It has made the Internet an unprecedented platform for civic 
engagement, commerce, entertainment, and more.  And it has made the United States the epicenter of 
online innovation.  I support the four Internet freedoms, and I am committed to protecting them going 
forward.
It’s not news that people of good faith disagree when it comes to the best way to maintain a free 
and open Internet—or as I think of it, how best to preserve the four Internet freedoms for consumers.  
Some would like to regulate broadband providers as utilities under Title II of the Communications Act.  
This turn to common-carrier regulation would scrap the Clinton-era decision to let the Internet grow and 
thrive free from price regulation and other obligations applicable to telephone carriers.
5
There are others—and I am one of them—who believe President Clinton and Congress got it right 
in the Telecommunications Act of 1996 when they declared the policy of the United States to be 
“preserv[ing] the vibrant and competitive free market that presently exists for the Internet . . . unfettered 
                                                     
1
See Jerome Taylor, Google chief: My fears for Generation Facebook, The Independent (Aug. 18, 2010), available 
at http://www.independent.co.uk/life-style/gadgets-and-tech/news/google-chief-my-fears-for-generation-facebook-
2055390.html.
2
Verizon Communications Inc. v. FCC, 740 F. 3d 623 (D.C. Cir. 2014).
3
Michael K. Powell, Chairman, FCC, Preserving Internet Freedom: Guiding Principles for the Industry (Feb. 8, 
2004), available at http://go.usa.gov/8CZe.
4
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory 
Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand 
Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Review 
of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the Internet 
Over Cable and Other Facilities Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for 
Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 98-
10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005).
5
See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 
11501 (1998).
Federal Communications Commission FCC 14-61
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by Federal or State regulation.”
6
  They think that we should recognize the benefits made possible by the 
regulatory regime that has been in place for most of the last decade.  After all, nobody thinks of plain old 
telephone service or utilities as cutting-edge.  But everyone recognizes that the Internet has boundless 
potential.  And that’s because government didn’t set the bounds early on.
Today’s item strikes yet a third approach.  It’s a lawyerly one that proposes a minimal-level-of-
access rule and a not-too-much-discrimination rule.  It also allows for paid prioritization under 
unspecified circumstances.  To date, no one outside the building has asked me to support this proposal.  It 
brings to mind a Texas politician’s observation that there is nothing in the middle of the road but yellow 
stripes and dead armadillos.
Nothing less than the future of the Internet depends on how we resolve this disagreement.  What 
we do will imperil or preserve Internet freedom.  It will promote or deter broadband deployment to rural 
consumers and infrastructure investment throughout our nation.  It will brighten or hamper the future of 
innovation both within networks and at their edge.  It will determine whether control of the Internet will 
reside with the U.S. government or the private sector.  It will impact whether consumers are connected by 
smart networks or dumb pipes.  And it will advance or undermine American advocacy on the 
international stage for an Internet free from government control.
A dispute this fundamental is not for us, five unelected individuals, to decide.  Instead, it should 
be resolved by the people’s elected representatives, those who choose the direction of government—and 
those whom the American people can hold accountable for that choice.
I am therefore disappointed that today, rather than turning to Congress, we have chosen to take 
matters into our own hands.  It is all the more disappointing because we have been down this road before.  
Our prior two attempts to go it alone ended in court defeats.  Even with the newfangled tools the FCC will 
try to pull out of its legal grab-bag, I am skeptical that the third time will be the charm.
For one, I see no legal path for the FCC to prohibit paid prioritization or the development of a 
two-sided market—which appears to be the sine qua non objection by many to the Chairman’s proposal.  
As the NPRM frankly acknowledges, section 706 of the Telecommunications Act “could not be used” for 
such a ban.
7
  And while the NPRM resists saying it outright, neither could Title II.  After all, Title II only 
authorizes the FCC to prohibit “unjust or unreasonable discrimination”
8
and both the Commission and the 
courts have consistently interpreted that provision to allow carriers to charge different prices for different 
services.
9
  Indeed, I have been unable to find even a single case in which the Commission found it 
unlawfully discriminatory to offer a different (faster) service to customers at a different (higher) price.
                                                     
6
47 U.S.C. § 230(b)(2) (emphasis added).
7
Notice of Proposed Rulemaking at para. 138.
8
47 U.S.C. § 202(a).
9
See, e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and 
Local Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules and 
Requirements for Priority Access Service, WT Docket No. 96-86, Second Report and Order, 15 FCC Rcd 16720 
(2000) (finding Priority Access Service, a wireless priority service for both governmental and non-government 
public safety personnel, “prima facie lawful” under section 202); Access Charge Reform; Price Cap Performance 
Review for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered By 
Competitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulation 
as a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 98-
63, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility or special access services, allowing 
both higher charges for faster connections as well as individualized pricing and customers discounts); GTE 
Telephone Operating Companies Tariff F.C.C. No. 1 et al., Transmittal Nos. 900, 102, 519, 621, 9 FCC Rcd 5758 
(Common Carrier Bur. 1994) (approving tariffs for Government Emergency Telephone Service(GETS), a prioritized 
telephone service, and additional charges therefor); see also, e.g., Interstate Commerce Commission v. Baltimore & 
O.R. Co., 145 U.S. 263, 283–84 (1892) (noting that common carriers are “only bound to give the same terms to all 
(continued…)
Federal Communications Commission FCC 14-61
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For another, the legal consequences of moving forward with net-neutrality regulation are sure to 
wreak havoc on the Internet economy, no matter which legal path we take.  If we are to take the D.C. 
Circuit at its word, section 706 grants the FCC virtually unfettered authority to encourage broadband 
adoption and deployment.
10
  So if three members of the FCC think that more Americans would go online 
if they knew their information would be secure, could we impose cybersecurity and encryption standards 
on website operators?  If three members of the FCC think that more Americans would purchase 
broadband if edge providers were prohibited from targeted advertising, could we impose Do Not Track 
regulations?  Or if three members of the FCC think that more Americans would use the Internet if there 
were greater privacy protections, could we follow the European Union and impose right-to-be-forgotten 
mandates?  And because section 706 gives state commissions authority equal to the FCC,
11
every 
broadband provider, every online innovator, every Internet-enabled entrepreneur may now have to 
comply with differing regulations in each of the 50 states.  Tesla, Uber, Airbnb, and countless others can 
attest to the welcome that parochial regulators give to disruptive start-ups.
The Internet would fare no better under Title II, and the consequences are likely to be even worse.  
Reclassification opens the door to actual access charges—tariffed charges that Internet service providers 
could impose on edge providers, content delivery networks, and transit operators without their consent.  
Indeed, one Title II option on the table would guarantee new Internet tolls by giving broadband ISPs no 
option other than access charges to recover their regulated costs.
12
  Not only that, but reclassification 
means a broadband price hike for every consumer in America—not exactly a move that will encourage 
broadband adoption.
13
  And alongside tariffed access charges and higher consumer prices, other Title II 
provisions—ranging from the disclosure of customer information
14
to mandatory billing disclosures
15
—
would apply to broadband providers, edge providers, or really anyone in the Internet economy.  And like 
section 706, Title II puts state regulators on par with the FCC, meaning there may be 50 sets of access 
charges to be paid, 50 different broadband fees to be assessed, 50 different privacy regimes to be 
complied with, and 50 different types of mandatory disclosures to be made.  As this suggests, a Title II 
regime hardly lowers the barriers to competitive entry—starting a company doesn’t get you free legal 
services.  And it would hardly “provide certainty to all market participants and keep the costs of 
regulation low,” as 150 Internet companies asked us to do last week.
16
Finally, pursuing net-neutrality regulations under section 706 or Title II places in jeopardy every 
other goal of this Commission in the communications marketplace.  Most obviously, this pursuit injects 
tremendous regulatory uncertainty into the market, chilling further broadband deployment,
17
threatening 
(Continued from previous page)                                                            
persons alike under the same conditions and circumstances,” and “any fact which produces an inequality of 
condition and a change of circumstances justifies an inequality of charge”).
10
Verizon v. FCC, 740 F.3d 623, 639–40 (D.C. Cir. 2014).
11
47 U.S.C. § 1302(a) (“The Commission and each State commission with regulatory jurisdiction over 
telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans . . . .” (emphasis added)).
12
See Notice of Proposed Rulemaking at paras. 151–52.
13
See 47 U.S.C. § 254(d) (imposing universal service fees on all telecommunications carriers).
14
See 47 U.S.C. § 222.
15
See 47 C.F.R. § 64.2401 (implementing 47 U.S.C. §§ 201(b), 258).
16
Letter from Amazon et al., to Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O’Rielly, 
GN Docket No. 14-28 (May 7, 2014).
17
See, e.g., Letter from Robert W. Quinn, Jr., Senior Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, 
GN Docket No. 14-28, at 2–3 (May 9, 2014); Letter from Kathryn A. Zachem, Senior Vice President, Comcast 
Corporation, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1–2 (May 12, 2014); Letter from Rick 
(continued…)
Federal Communications Commission FCC 14-61
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the $60 billion a year that private companies invest in their broadband networks, and potentially 
jeopardizing some of the millions of jobs that depend on such investment.
18
  This brave new world will 
deter new entrants and reduce competition in the broadband market.
This is no academic concern.  Even with the cushion of market capitalization equivalent to 
Comcast, Verizon, and T-Mobile combined, Google has already attested that our legacy regulations led it 
not to offer phone service as part of Google Fiber.
19
  On the other end of the size spectrum, there are 
thousands of smaller Internet service providers—wireless ISPs (WISPs), small-town cable operators, 
electric cooperatives, and others—that don’t have the means or the margins to withstand a regulatory 
onslaught.  If they go dark, consumers they serve (including my parents, who are WISP subscribers in 
rural Kansas) will be thrown offline.
On top of all this, undertaking such a “politically corrosive” rulemaking on dubious legal and 
policy grounds will swamp what should be an independent, expert agency with years of litigation and 
partisan division.
20
  That is not good for broadband deployment, that is not good for consumers, and that 
is not good for future of the Internet.
For all of these reasons, I respectfully dissent.
* * *
Nevertheless, if we are going to act like our own mini-legislature and plunge the Commission into 
this morass, we need to use a better process going forward.  I agree with my colleague, Commissioner 
Rosenworcel, that we have rushed headlong into this rulemaking by holding this vote today
21
—and when 
there is any bipartisan agreement on net neutrality, that’s something to pay attention to.  We have seen 
over the past month what happens when the American people feel excluded from the Commission’s 
deliberations.  Indeed, on several recent issues, many say that the Commission has spent too much time 
speaking at the American people and not enough time listening to them.
Going forward, we need to give the American people a full and fair opportunity to participate in 
this process.  And we must ensure that our decisions are based on a robust record.
So what is the way forward?  Here’s one suggestion.  Just as we commissioned a series of 
economic studies in past media-ownership proceedings,
22
we should ask ten distinguished economists 
from across the country to study the impact of our proposed regulations and alternative approaches on the 
Internet ecosystem.  To ensure that we obtain a wide range of perspectives, let each Commissioner pick 
two authors.  To ensure accuracy, each study should be peer reviewed.  And to ensure public oversight, 
(Continued from previous page)                                                            
Chessen, Senior Vice President, National Cable & Telecommunications Association, to Marlene H. Dortch, 
Secretary, FCC, GN Docket No. 14-28, at 3 (May 14, 2014).
18
Letter from Thomas R. Stanton, Chairman & CEO, ADTRAN, et al., to Marlene H. Dortch, Secretary, FCC, GN 
Docket No. 14-28 (May 13, 2014).
19
Alyson Raletz, Google Considers But Drops Plans to Include Phone Service, Too, Kansas City Business Journal 
(Dec. 4, 2012), available at http://www.bizjournals.com/kansascity/blog/2012/12/google-considers-drops-phone-
service.html.
20
See Letter from Mitch McConnell, Senate Republican Leader, et al., to the Honorable Thomas Wheeler, 
Chairman, FCC (May 13, 2014); Letter from John A. Boehner, Speak of the House, to the Honorable Thomas E. 
Wheeler, Chairman, FCC (May 14, 2014); Letter from Fred Upton, Chairman, U.S. House of Representatives 
Committee on Energy and Commerce, et al. to the Honorable Thomas E. Wheeler, Chairman, FCC (May 13, 2014).
21
See Remarks of Commissioner Jessica Rosenworcel at the Chief Officers of State Library Agencies Meeting (May 
7, 2014), available at http://go.usa.gov/84SG; see also Letter from Senators Kelly Ayotte, Deb Fischer, and Dan 
Coats, to the Honorable Tom Wheeler, Chairman, FCC (May 14, 2014), available at http://go.usa.gov/84Sz.
22
FCC, 10 Research Studies on Media Ownership, http://go.usa.gov/8YSA.
Federal Communications Commission FCC 14-61
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we should host a series of hearings where Commissioners could question the authors of the studies and 
the authors of those studies could discuss their differences.  Surely the future of the Internet is no less 
important than media ownership.
But we should not limit ourselves to economic studies.  We should also engage computer 
scientists, technologists, and other technical experts to tell us how they see the Internet’s infrastructure 
and consumers’ online experience evolving.  Their studies too should be subject to peer review and public 
hearings.
Ultimately, any decisions we make on Internet regulation must be based on sound engineering 
and an accurate understanding of how networks actually function.  They should be informed by the 
judicious and successful regulatory approach embraced by both Democrats and Republicans in recent 
years.  And they should avoid embroiling everyone, from the FCC to industry to the average American 
consumer, in yet another years-long legal waiting game.
In short, getting the future of the Internet right is more important than getting this done right now.  
After all, the Internet was free and open before the FCC’s net-neutrality rules took effect in November 
2011.  And it is still free and open today even though those rules are no longer in force.  Going forward, I 
hope that we will not rush headlong into enacting bad rules.  We are not confronted with an immediate 
crisis that requires immediate action.  And if we are going to usurp Congress’s role and make 
fundamental policy choices for the American people, we must do better than the process that led to 
today’s vote.
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DISSENTING STATEMENT OF 
COMMISSIONER MICHAEL O’RIELLY
Re: Protecting and Promoting the Open Internet, GN Docket No. 14-28.
It should come as no surprise that I cannot support today’s Notice.  As I’ve said before, the 
premise for imposing net neutrality rules is fundamentally flawed and rests on a faulty foundation of 
make-believe statutory authority.  I have serious concerns that this ill-advised item will create damaging 
uncertainty and head the Commission down a slippery slope of regulation.  
As anticipated, the Notice proposes to ground the net neutrality rules in section 706 of the 
Telecommunications Act of 1996.  I have already expressed my views that Congress never intended 
section 706 to be an affirmative grant of authority to the Commission to regulate the Internet.  At most, it 
could be used to trigger deregulation.  
But the Notice doesn’t stop there.  It seeks comment on ways to construe additional language in 
section 706 and even suggests using section 230(b) to broaden the scope of the Commission’s usurped 
authority.  This is absurd.  I was worried enough that the Commission’s current reading of section 706 
could be used to justify any number of regulatory interventions and could ultimately impact not just 
broadband providers, but also edge providers.  Now that the Commission is trying to cast an even wider 
net of authority, I fear that other services and providers could become ensnared in the future.  
And just in case section 706 proves to be inadequate for this regulatory boondoggle, the Notice 
explores upending years of precedent and investment by reclassifying broadband Internet access as a Title 
II service. That is, the Commission examines applying monopoly era telephone rules to modern 
broadband services solely to impose unnecessary and defective net neutrality regulations.  I cannot 
support such a backward-looking, ends-driven approach—not in a Notice and certainly not in final rules.       
While courts can recognize that an agency may legally reverse course as long as it adequately 
explains the reasons for changing its position, I am concerned about the real world impact that such a 
decision could have on the communications industry and the economy as a whole.  The current 
framework has provided a climate of certainty and stability for broadband investment and Internet 
innovation.  Upending that framework could disrupt the tremendous progress that has been made over the 
last decade.  I also worry about the credibility of an agency that consistently fails to meet statutory 
deadlines to review and eliminate old rules, but is supposedly open to reapplying obsolete provisions.  
The Notice suggests that reclassification could be accompanied by substantial forbearance from 
the Title II requirements.  But the need to forbear from a significant number of provisions in Title II 
proves the point that Title II is an inappropriate framework for today’s dynamic technologies.  Indeed, 
Title II includes a host of arcane provisions on topics like interlocking directorates, valuation of carrier 
property, uniform system of accounts and depreciation charges, telephone operator services, 
telemessaging service, Bell Operating Company entry into interLATA services, manufacturing of 
telecommunications equipment and customer premises equipment, and electronic publishing.  Even if the 
Commission granted forbearance from all of the provisions that it has eliminated for incumbent telephone 
companies—and then some—advocates are ignoring that broadband providers and services would still be 
subject to a host of unnecessary rules.  The idea that the Commission can magically impose or sprinkle 
just the right amount of Title II on broadband providers is giving the Commission more credit than it ever 
deserves.  
Additionally, before taking any action on any issue, the Commission should have specific and 
verifiable evidence that there is a market failure.  The Notice does not examine the broadband market 
much less identify any failures.  A true and accurate review of the U.S. broadband market—which must 
Federal Communications Commission FCC 14-61
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include wireless broadband—would show how dynamic it is.  The Notice does acknowledge that 
innovation and investment have flourished, although it implausibly ascribes those successes to the vacated 
net neutrality rules.    
Moreover, the Notice fails to make the case that there’s an actual problem resulting in real harm 
to consumers.  The Notice identifies, at most, two additional examples of alleged harm.  And in one 
instance, the Commission concedes it did not find a violation.  The Notice tries to explain away the 
absence of net neutrality complaints, but the unpersuasive excuses cannot mask a lack of evidence.  In a 
last ditch attempt to find problems, the Notice points to supposed bad conduct occurring outside of the 
United States without explaining how that is relevant to a very different U.S. broadband market and 
regulatory structure.
Having come up empty handed, the Notice proceeds to explore hypothetical concerns.  At the top 
of the list is prioritization.  But even ardent supporters of net neutrality recognize that some amount of 
traffic differentiation or “prioritization” must be allowed or even encouraged. Voice must be prioritized 
over email; video over plain data. Prioritization is not a bad word. It is a necessary component of 
reasonable network management.  
The Notice is particularly skeptical of paid prioritization and contemplates banning some or all 
such arrangements outright.  Yet companies that do business over the Internet, including some of the 
strongest supporters of net neutrality, routinely pay for a variety of services to ensure the best possible 
experience for their consumers.  They’ve been doing it for years.  And certain arrangements have even 
been viewed as “good for the Internet.”  In short, fears that paid prioritization will automatically degrade 
service for other users, relegating them to a so-called “slow lane,” have been disproven by years of 
experience.  
Because there’s no evidence of actual harm that could help inform the proposed rules, they are 
not narrowly tailored but hopelessly vague and unclear.  We are left to puzzle over what it means to 
provide a “minimum level of access” or what constitutes a “commercially unreasonable” practice, 
especially in the absence of contractual relationships.  The Notice suggests that providers could seek non-
binding staff guidance or prospective reviews of their practices.  But it is very troubling when legitimate 
companies are put in the position of having to ask the government for its blessing every time they need to 
make a business decision in order to avoid costly enforcement or litigation. It is even more telling that the 
Commission is suggesting new layers of enforcement options for which it has no experience.  For 
instance, where are ombudsmen mentioned in the statute and what are they to do exactly?      
Finally, to say the cost-benefit “analysis” is woefully inadequate is an understatement.  The 
Notice devotes several pages to a wish list of disclosures, reporting requirements, and certifications that 
will impose new burdens and carry real costs, but may not even be meaningful to end users.  For example, 
what will the average consumer do with information on packet corruption and jitter?  However, there is 
no attempt to quantify and compare the costs of the proposed new requirements against the supposed 
benefits—just a single paragraph seeking comment on ways to reduce the burdens.  Proposed rules should 
be accompanied by a fulsome cost-benefit analysis that includes a detailed and extensive review of 
current law, especially as it applies to other federal agencies that we seek to imitate.  The Commission’s 
short-shrift approach to cost-benefit analysis cannot continue, and I intend to spend time improving this 
important function.  
In sum, the proposed net neutrality rules and legal theories will stifle innovation and investment 
by the private sector, provide no help to consumers, and thrust the Commission into a place it shouldn’t 
be.  I respectfully dissent.