STATEMENT OF COMMISSIONER MICHAEL O’RIELLY Re: Restoring Internet Freedom, WC Docket No. 17-108. The order before us represents the culmination of extensive work by agency staff to carefully consider whether net neutrality rules are truly warranted, thoroughly reviewing the legal underpinnings, economic analyses, and practical effects, as debated exhaustively in the record of this proceeding. I agree with the decision, and I support such a well-reasoned and soundly justified order. While I have long-standing views on this topic, I approached this proceeding with an open mind. I read the substantive comments with interest, and I met with everyone I could, no matter the particular viewpoint. In the end, I am simply not persuaded that heavy-handed rules are needed to protect against hypothetical harms. In all this time, I have yet to hear recent, unquestionable evidence of demonstrable harms to consumers that demands providers be constrained by this completely flawed regulatory intervention. I still cannot endorse guilt by imagination. It is a shame that this topic has been plagued by baseless fearmongering. Many small businesses have been blatantly misled into thinking that they are going to be forced to pay more to continue to do business online. Others have been told that free speech and civil rights are on the line. It simply isn’t true – and we know that from experience. The Internet has functioned without net neutrality rules far longer than with them. Having rules has been the exception, not the norm. So, what happened during that time? Did ISPs start scouring the web in the hopes of charging a small business more to run an online shop? Did they block advocacy groups from expressing their views? Of course not. In fact, nobody can name more than a handful of examples that occurred over the course of an entire decade prior and that were readily dealt with, whether actual violations or not. The legend of a cable company trying to break the Internet may make a scary bedtime story for the children of telecom geeks, but it isn’t reality. Far from being an Internet dark age, those periods without net neutrality rules were times of innovation and investment. The most well-known edge providers came into being and flourished, including Google in 1998, Facebook in 2004, YouTube in 2005, and Twitter in 2006. Broadband deployment boomed. And, consumers and small businesses were freely able to access all lawful content. Now, companies have made enforceable commitments to uphold net neutrality, and consumer advocates are actively watching for violations to trumpet. Therefore, it is even less likely that we will see bad conduct in the future. Indeed, the fact that some have felt compelled to resort to shameful scare tactics only serves to highlight that there are no real problems for the FCC to solve. So, for those of you out there who are fearful of what tomorrow may bring, please take a deep breath. This decision will not break the Internet. What we are doing is reverting back to the highly- successful, bipartisan, governmental approach that existed before. As the order makes clear, we depart from the prior Commission approach because we determine that the decision was flawed, we believe that our statutory interpretation and course of action is the better one, and our decision is grounded in and supported by the record. The text has been publicly available for over three weeks, and our good staff has summarized it for us today, so there is no need for me to step through the policies and reasoning again in detail. Instead, I will highlight a few key parts and address some of the false arguments and misconceptions regarding the substance and process. Replacing the Damaging Title II Framework with a Proven Light-Touch Approach While repealing net neutrality rules grabs headlines, reversing the classification of broadband Internet access service as a Title II telecommunications service is far more consequential. Net neutrality started as a consumer issue, but it soon became a stepping stone to impose vastly more onerous common carrier regulations on broadband companies. Even the previous Chairman initially attempted to reinstate net neutrality rules under more limited legal authority. And many companies would have accepted the compromise and lived with net neutrality rules as long as the Commission didn’t impose Title II. But thanks to one infamous YouTube video posted by the prior Administration, this so-called independent agency was quickly railroaded into treating ISPs like public utilities instead. 1 As discussed at length in the order, the record, and the dissents that Chairman Pai and I wrote in response to the 2015 order, there were fundamental legal problems and factual errors underlying the decision to treat fixed and mobile broadband services as “telecommunications services.” Therefore, I will focus on a few aspects that warrant particular attention. As an initial matter, some have argued that the issue of FCC authority over the Internet is a “major question.” 2 Specifically, it is a matter of such “economic and political significance,” that if Congress intended the FCC to wield the power to regulate it, then Congress would have clearly stated its intent. 3 Our current statute is devoid of any such statement. 4 On the contrary, what little is said in the law is aimed at keeping the Internet free from state and federal regulation. 5 And prior to the 2015 order, the FCC “effectuated that legislative judgment” by treating Internet access “only as an information service subject to light-touch regulation.” 6 That is the only reading that comports with the design and structure of the statute as a whole. 7 In short, because “Congress has not clearly authorized the FCC to classify Internet service as a telecommunications service and impose common-carrier obligations on Internet service providers,” 8 the prior Commission never should have been permitted to embark on its “voyage of discovery” to regulate the Internet. 9 Additionally, I take issue with the notion that the Communications Act is ambiguous with respect to the proper classification of broadband Internet access. That view, advanced in the 2015 order and mistakenly endorsed by the USTelecom panel majority, rests on a misreading of the Brand X decision. As one commenter put it: “[N]o Justice in Brand X doubted—and no party disputed—that cable broadband providers . . . offered an ‘information service’ when they provided consumers with . . . Internet access 1 See A Majority Staff Report of the Committee on Homeland Security and Governmental Affairs, United States Senate, Senator Ron Johnson, Chairman, Regulating the Internet: How the White House Bowled Over FCC Independence (Feb. 27, 2016), https://www.hsgac.senate.gov/download/regulating-the-internet-how-the-white- house-bowled-over-fcc-independence. 2 See TechFreedom Reply at 2-6 (discussing application of the “major question” or “major rule” doctrine to the regulation of broadband Internet access service); see generally Petition for Writ of Certiorari, United States Telecom Ass'n v. FCC, 825 F.3d 674 (No. 17-504) (USTelecom Cert Petition); USTelecom v. FCC, 855 F.3d 381, 418-426 (D.C. Cir. 2017) (Kavanaugh, J., dissenting) (explaining that “under any conceivable test for what makes a rule major, the net neutrality rule qualifies as a major rule.”); see USTelecom, 855 F.3d at 400-408 (Brown, J., dissenting). 3 See TechFreedom Reply at 2-6 (quoting Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427, 2444 (2014)). 4 See Free State Foundation Comments at 20-21. 5 Id. 6 USTelecom Cert Petition at 18. 7 Id. at 28-31. Additionally, Judge Kavanaugh notes that “[t]he FCC’s light-touch regulation did not entail common- carrier regulation and was not some major new regulatory step of vast economic and political significance.” USTelecom, 855 F.3d at 425 & n. 5 (Kavanaugh, J., dissenting). 8 USTelecom, 855 F.3d at 425 (Kavanaugh, J., dissenting). 9 TechFreedom Reply at 2-6 (quoting UARG, 134 S. Ct. at 2446). functionality.” 10 The only question “was whether the ISPs could be said to ‘offer’ . . . a separate telecommunications service in the form of last-mile transmission between the broadband cable provider and customers’ homes.” 11 Therefore, “[n]othing in the opinion even suggests, much less holds, that the statute authorizes the Commission to classify Internet access itself as a telecommunications service.” 12 Yet that is exactly what the 2015 order claimed. The prior Commission determined that, “because the ‘information service’ of retrieving information from Internet websites includes ‘telecommunications service,’ every aspect of that ‘information service’ is now just a “telecommunications service.” 13 In other words, “the pizzeria no longer offers ‘pizza’ or ‘pizza delivery,’ it just offers ‘delivery.’” 14 That’s an untenable reading of Brand X that should be rejected outright. Instead, the plain language of the statute itself makes clear that broadband Internet access service is an information service. Indeed, several commenters argued that the text, structure, and history of the Act do not merely permit but rather compel an information service classification. 15 As one commenter explained, broadband Internet access service “by definition . . . necessarily offers the ‘capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available, information via telecommunications.’” 16 Indeed, “interacting with third-party data is the defining characteristic of Internet access.” 17 Moreover, even if one were to read the statute to require ISPs to provide data processing or data storage functionalities of their own before Internet access could meet the definition of “information service,” they would still qualify because all ISPs provide core data-processing functionalities, including DNS and caching. 18 What is more, virtually all ISPs also “offer” additional data-processing features like “email, data storage, parental controls, unique programming content, spam 10 AT&T Comments at 83. See also AT&T Reply at 57 (“In Brand X, the Supreme Court and all litigants assumed that the Internet access functionality offered by broadband ISPs was an “information service”); Verizon Comments at 36 (“No party or Justice took the Title II Order’s extreme position that the entire service is a telecommunications service subject to common-carrier regulation.”). 11 AT&T Reply at 57. See also Verizon Comments at 35-36 (“[W]hen the Supreme Court considered the Commission’s classification of cable broadband in National Cable & Telecommunications Ass’n v. Brand X Internet Services, it was ‘unchallenged’ that ‘cable modem service’ – i.e., the Internet access service that ‘enables users, for example, to browse the World Wide Web, to transfer files from file archives available on the Internet via the ‘File Transfer Protocol,’ and to access e-mail and Usenet newsgroups’ – was ‘an ‘information service.” The technological question that divided the Court was whether cable providers also offered a separable telecommunications service in providing this information service, or whether instead the Commission had reasonably concluded that the transmission of information was an integrated aspect of the information-service offering, as the Court held.”) (internal citations omitted). 12 AT&T Reply at 58. 13 USTelecom, 855 F.3d at 404 (Brown, J., dissenting). 14 Id. 15 AT&T Comments at 60-90. See also CenturyLink Comments at 15 (“An objective examination of the technical details of how BIA service works demonstrates that it falls, unambiguously, within the Act’s definition of an information service classification.”); Verizon Comments at 35-36 (“Broadband Internet access service is therefore an information service within the plain terms of the Act – just as Congress unambiguously stated in Sections 230 and 231.”); CTIA Comments at 28-42. 16 AT&T Reply at 60 (citing 47 U.S.C. § 153(24)); AT&T Comments at 68-69. 17 AT&T Reply at 60. 18 See AT&T Comments at 73-82. protection, pop-up blockers, instant messaging services, on-the-go access to Wi-Fi hotspots, and various widgets, toolbars, and applications.” 19 While there is no ambiguity in the law or Brand X about whether Internet access itself is an information service, even if a future court were to disagree, the present order would still rest on firm legal footing. For one, if the statute is unclear, the “major questions” doctrine prevents an agency from relying on statutory ambiguity to issue major rules, thereby precluding the FCC from regulating broadband Internet access service under Title II. 20 For another, even if the “major question” doctrine did not apply, and if some ambiguity were to be found, our decision to reclassify the service is certainly a reasonable and permissible one, as the order lays out in detail. Likewise, one commenter noted: “No one seriously disputes that the Commission retains that authority under any plausible reading of this statutory scheme. Brand X itself upheld an information service classification. And even the judges who formed the panel majority in USTelecom upheld the [2015 order] on the basis that ‘the Act left the matter to the agency’s discretion.’” 21 Far from blessing the 2015 order as some have suggested, the USTelecom panel majority offered, at best, a tepid and carefully qualified approval. Notably, before addressing the substantive arguments, the USTelecom panel majority found it “important to emphasize” its “limited” role in reviewing agency regulations. “Critically,” the court does not “inquire as to whether the agency’s decision is wise as a policy matter; indeed, [it is] forbidden from substituting [its] judgment for that of the agency.” 22 Consequently, should this order be challenged, it would be entitled to the same, “highly deferential” review. 23 As another commenter pointed out, the Commission has discretion “to classify BIAS ‘over and over’ again” and that “[a]s between the two possible classifications, ‘the Commission’s choice of one of them is entitled to deference.’” 24 While I disagree with the level of deference that courts currently afford agency decisions, including the 2015 order, the current decision, if challenged, must be provided the same treatment. 25 In addition to the legal, analytical, and policy infirmities of the 2015 order, that decision opened the door to much broader regulation of broadband providers. 26 And, as we saw, the Commission quickly 19 Id. Whether consumers use these features or those offered by third parties is irrelevant. See id at 81. 20 See Free State Foundation Comments at 20-21; USTelecom, 855 F.3d at 425 (Kavanaugh, J., dissenting) (“Brand X's finding of statutory ambiguity cannot be the source of the FCC's authority to classify Internet service as a telecommunications service. Rather, under the major rules doctrine, Brand X's finding of statutory ambiguity is a bar to the FCC's authority to classify Internet service as a telecommunications service.”). 21 AT&T Comments at 59. See also NCTA Comments at 10-11. 22 Id. 23 USTelecom Comments at 15-16. 24 NCTA Comments at 10-11 (citing USTelecom, 855 F.3d at 384 (Srinivasan, J., joined by Tatel, J., concurring in the denial of rehearing en banc)). 25 See Free State Foundation Comments at 33-34 (“As the D.C. Circuit recognized in US Telecom v FCC, the Commission’s predictive judgments are reviewed according to a “highly deferential standard” – and that standard is surely satisfied here.”) (quoting United States Telecom Association, 825 F.3d at 707). 26 See, e.g., CTIA Comments at 7-9 (“Title II provides the Commission with a vehicle to expand its regulatory oversight of broadband providers at any time. . . . Such a regulatory environment, where today’s hedging language portends tomorrow’s intervention, creates intensive uncertainty that undercuts innovation and harms consumers. Mobile broadband providers need to know that they can innovate, invest, and operate their networks in a manner that will help them attract and retain customers, without the constant regulatory overhang that invites others to second-guess their decisions or micromanage their businesses, even when those others promise not to do so ‘at this time’ or ‘for now.’”); AT&T Comments at 49-59 (describing the potential and actual problems resulting from the walked through that door. 27 The agency next adopted privacy regulations that would have disrupted the interworking of the Internet, upended consumer expectations and preferences, and created asymmetrical obligations on the companies that have the least amount of access to consumers’ online data. Fortunately, Congress rescinded those rules. However, companies continued to face uncertainty that other business decisions, commercial negotiations, service offerings, and pricing decisions would be scrutinized by the Commission. 28 I believe that these legitimate concerns were well founded and, if there had not been a change in Administration, the agency would have proceeded further down that path, as demonstrated by its zero-rating witch hunt. The decision to reinstate the classification of both fixed and mobile broadband Internet access service as an “information service” under section 3, and to reinstate the classification of mobile broadband as a “private mobile service” under section 332, eliminates these concerns and restores a sensible bipartisan approach to broadband services. 29 Under this proven framework, the FCC asserts jurisdiction over broadband Internet access service as an interstate information service, but applies regulation only to the extent warranted to address specific, concrete concerns. 30 Eliminating the Bright Line Rules and General Conduct Standard With the elimination of Title II, there is no remaining legal basis for the net neutrality bright line rules and general conduct standard, so we must repeal them. In many proceedings before this agency, I have questioned the need for rules that impose costs but do not solve real problems, so their removal is completely appropriate and necessary. That isn’t necessarily the end of the story, however. Congress may enact legislation providing new rules and the legal authority to support them. I firmly believe that would be the better course and the only way to bring finality to this issue. As noted above, regulating broadband Internet access service beyond the light-touch framework adopted in this order would involve a “major question” that requires a clear statement of authority by Congress. New legislation, should Congress deem it appropriate, would provide that clarity and end the game of regulatory ping pong. I would humbly suggest, however, that the general conduct standard remain forever in the ash heap. This policy gave the Commission’s Enforcement Bureau unbounded power to make the rules up as it went along – a frightening prospect. 31 Businesses could find themselves subject to investigation without any prior notice that conduct could be considered a violation. 32 One public interest group even “vague and unworkable” rules, including the “profoundly disruptive” zero-rating investigation); Verizon Comments at 10-13. 27 See, e.g, CTIA Comments at 8, 9-14 (discussing the FCC’s privacy and zero-rating initiatives). 28 See id. 29 See Verizon Comments at 27-60. 30 I also want to rebut the persistent but unfounded argument that reclassification undermines our federal universal service programs. As I’ve remarked before, and as the order makes clear, section 254 already provides sufficient authority to fund broadband-capable networks. See also Verizon Comments at 25-27 (noting that “the Commission had already supported broadband services under all four universal service programs before it classified broadband as a telecommunications service in the Title II Order” and explaining the specific, existing authority within each of the four USF programs). 31 See AT&T Comments at 51-52. 32 See Testimony of Robert M. McDowell, Chief Public Policy Advisor of Mobile Future, before the U.S. House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law, “Net Neutrality and the Role of Antitrust” at 10 (November 1, 2017) (McDowell Testimony); Free State Foundation Comments at 55-56; CTIA Comments at 9-14. called the catch-all a “recipe for overreach and confusion.” 33 It was the height of regulatory capriciousness and should never be resurrected. 34 Similarly, I am hopeful that if Congress goes down this path, it will see merit in rejecting a ban on paid prioritization. The sadly simplistic rhetoric around “fast lanes” and “slow lanes” has created unfortunate misconceptions about paid prioritization. In reality, it could optimize the use of networks and traffic delivery for all involved. 35 Clearly, there are cases today and many more that will develop in time in which the option of a paid prioritization offering would be a necessity based on either technology needs or consumer welfare. I, for one, see great value in the prioritization of telemedicine and autonomous car technology over cat videos. And speaking of autonomous cars, we must ensure that wireless providers can manage their systems. Wireless networks have capacity constraints based on the physics of the spectrum they use. Generally, wireless use is booming, and more and more Americans are using wireless networks to access the Internet, but this is just the beginning. In 2016, the average person generated 250 MB of data per day and, in 2020, it is predicted that number will increase to 1.5GB per day – a 200 percent increase in data traffic. Now, consider that each autonomous vehicle is predicted to generate an additional four terabytes of data a day, much of which will be carried by wireless networks. 36 It is hard to imagine that some prioritization of traffic will not be necessary, further undermining attempts to ban such practices. Retaining Transparency Rules and Partnering with the FTC to Enforce Them Although the order eliminates the bright line rules and general conduct standard, it does leave a version of the transparency requirements in place. In fact, the requirements are more extensive than those first adopted back in 2010. While I remain skeptical of the legal authority for them, or their value given the FTC’s existing authority, I am without a mechanism to get them removed. The transparency rules mean that anyone who is interested in monitoring the impact of this order will be able to stay informed about how providers are implementing it. Should companies choose to 33 Corynne McSherry, Electronic Frontier Foundation, Dear FCC: Rethink The Vague “General Conduct” Rule (Feb. 24, 2015), https://www.eff.org/deeplinks/2015/02/dear-fcc-rethink-those-vague-general-conduct-rules. 34 See, e.g., NCTA Comments at 43-48; Comments of Americans for Tax Reform et. al. 35 See, e.g., United States Telecom Association, 825 F.3d at 763 (Williams, J., concurring in part and dissenting in part) (“[P]aid prioritization would encourage ISP innovations such as providing special speed for voice transmission (for which timeliness and freedom from latency and jitter—delays or variations in delay in delivery of packets—are very important), at little or no cost to services where timeliness (especially timeliness measured in milliseconds) is relatively unimportant. Similarly, pricing for extra speed would incentivize edge providers to innovate in technologies that enable their material to travel faster (or reduce latency or jitter) even in the absence of improved ISP technology. . . . Thus paid prioritization would yield finely tuned incentives for innovation exactly where it is needed to relieve network congestion. These innovations could improve the experience for users, driving demand and therefore investment.”) (citing and summarizing Comments of International Center for Law & Economics and TechFreedom, WC Docket No. 14-28, at 17 (filed July 17, 2014)); see also id. at 764 (“Unless there is capacity for all packets to go at the same speed and for that speed to be optimal for the packets for which speed is most important, there must be either (1) prioritization or (2) identical speed for all traffic. If all go at the same speed, then service is below optimal for the packets for which speed is important. If there is unpaid prioritization, and it is made available to the senders of packets for which prioritization is important, then (1) those senders get a free ride on costs charged in part to other packet senders and (2) those senders have less incentive to improve their packets' technological capacity to use less transmission capacity. Allowance of paid prioritization eliminates those two defects of unpaid prioritization.”) (citing and summarizing Comments of Professor Justin (Gus) Hurwitz, WC Docket No. 14-28 at 17 (filed July 18, 2014)). 36 See Brian Krzanich, Intel Newsroom, Data is the New Oil in the Future of Automated Driving (Nov. 15, 2016), https://newsroom.intel.com/editorials/krzanich-the-future-of-automated-driving/. discriminate against certain types of traffic, for example, they are required to say so. Given that companies have already promised not to engage in such behavior, however, I do not expect the disclosures themselves to be that shocking. Of course, if a business fails to disclose relevant information or its practices differ from what is described, it will be subject to an investigation and enforcement, as outlined in the recent FCC-FTC Memorandum of Understanding. But, I sincerely doubt that legitimate businesses are willing to subject themselves to a PR nightmare for attempting to engage in blocking, throttling, or improper discrimination. It is simply not worth the reputational cost and potential loss of business. More likely, and unfortunately, the transparency requirements will keep companies from offering services or features that could actually benefit consumers. While I understand the decision to rely on section 257 as authority for the transparency requirements, I do not believe that section 218 or the provisions of Title III cited in the circulated version of the order should be invoked here. I am relieved that they have been removed from the item at my request. Based on the conversations that my staff and I have had over the last few weeks, I am confident that they would not be necessary to uphold the transparency rules, should those be challenged. Moreover, opening the door to their use could prove costly and damaging in the long run. Those provisions contain very broad language and I could envision a more regulatory Commission in the future attempting to extend their use to require burdensome disclosures delving into the minutiae of service providers’ businesses. Additionally, because the provisions apply only to certain subsets of providers, their use would create asymmetric burdens within the industry. Even the prior Commission, over the objections of public interest advocates, forbore from applying section 218 to broadband providers. 37 The agency determined that section 218 and related provisions were customarily used to implement traditional rate-making authority over common carriers and were unnecessary to protect consumers in the net neutrality context. Therefore, I do not want this Commission to be responsible for reviving its use. In fact, I recommend that it be included in a future forbearance item to ensure that the provision is removed from the books once and for all. Preempting State and Local Requirements that Undermine our Federal Framework Last, but certainly not least, the order contains a clear declaration that broadband is an interstate information service and a robust preemption analysis. The order makes plain that broadband will be subject to a uniform, national framework that promotes investment and innovation. This is eminently reasonable and completely consistent with the Constitution’s Commerce Clause. 38 Broadband service is not confined to state boundaries and should not be constrained by a patchwork of state and local regulations. 39 And, this is particularly germane to wireless services where mobile devices and the transmissions they carry can easily cross state lines. 40 This could have drastic results where it is possible for such communications to be prioritized in one state, but not in another. A hodgepodge of state rules could severely curtail not only the next generation of wireless systems that we have been working so hard to promote, but also the technologies that may rely on these networks in the future. Accordingly, any 37 Protecting and Promoting the Open Internet, WC Docket No. 14-28, Report and Order on Remand, Declaratory Ruling, and Order, 30 FCC Rcd 5601, para. 508 (2015). 38 See U.S. CONST. art. 1 § 8, cl. 3. See also Roslyn Layton, The Federalist and Anti-Federalist Arguments for Internet Freedom, AEIdeas (Nov. 15, 2017), http://www.aei.org/publication/the-federalist-and-anti-federalist- arguments-for-internet-freedom/?utm_source=newsletter&utm_medium=paramount&utm_campaign=cict. 39 See Verizon White Paper, FCC Authority to Preempt State Broadband Laws, WC Docket No. 17-108 (Oct. 25, 2017) (Verizon White Paper); McDowell Testimony at 12-15; CTIA Comments at 54-58; NCTA Comments at 63- 68; Letter from USTelecom to FCC, WC Docket No. 17-108 (filed Nov. 17, 2017). 40 See CTIA Comments at 55-56. laws or regulations that conflict with or undermine federal broadband polices are preempted. Given my druthers, I would actually go even further on preemption, 41 but I could only carry the debate so far today. This is not a new or novel position. 42 The 2015 order also announced a “firm intention to exercise our preemption authority to preclude states from imposing obligations on broadband service that are inconsistent with the carefully tailored regulatory scheme.” 43 While the rules we adopt today are obviously different than the 2015 order, the concept that we will preempt inconsistent state and local requirements is well-established. 44 Although the order does acknowledge an extremely limited state role in enforcing their traditional police powers, state actions that go beyond this realm will be subject to scrutiny and challenge. The order makes clear that any requirements akin to common carrier regulation are barred. At my request, the order also specifies that states may not adopt their own transparency requirements, whether labeled as such or under the guise of “consumer protection.” I would also view state broadband privacy actions as outside the scope of what is permissible. 45 The purpose of this order is to restore a light-touch approach through deregulation. Therefore, any action to increase regulatory burdens on broadband providers would run directly counter to our efforts. 46 I hope that most states and localities will not waste time and resources attempting to push the boundaries, but I realize that some will do so regardless. I expect the agency to be vigilant in identifying and pursuing these cases. I also commit to work closely with the Chairman and OGC to help quash any conflicts that arise. Responding to Baseless Process Complaints Before concluding, I want to address the atmospherics surrounding the process in this proceeding. I’ll start with the number and identity of the comments submitted. Some would have us believe that the 41 See id. at 55, 56 (urging the Commission to “make clear that states and localities are barred from engaging in public utility regulation of broadband Internet access service – not only where their regulations expressly conflict with federal law, but also where they purport ‘merely’ to supplement federal goals or to advance federal aims” and to “establish that broadband regulation is an area in which ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’”) (quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985)). 42 See Verizon White Paper at 5-9 (“[T]he Commission has regularly preempted state and local laws that it deemed to conflict with its exclusive jurisdiction and federal deregulatory policy. The Commission has done so in a variety of domains—including information services—for well over forty years. It has also done so on a categorical basis without necessarily engaging in a case-by-case assessment of particular state laws. And in doing so, the Commission has consistently met with deference from—and the approval of—federal courts. The Commission would not break new ground if it were to preempt state broadband laws that threaten to conflict with the restoration of a light-touch regulatory federal policy for broadband. Because broadband Internet access service is an inherently interstate service, and because state broadband laws conflict with a federal policy of light-touch regulation, the Commission can explicitly preempt state broadband laws.”). 43 Protecting and Promoting the Open Internet, WC Docket No. 14-28, Report and Order on Remand, Declaratory Ruling, and Order, 30 FCC Rcd 5601, para. 433 (2015). 44 See Verizon White Paper at 5-9; NCTA Comments at 63-68; Letter from Kathryn A. Zachem, Comcast to Marlene Dortch, FCC, WC Docket No, 17-108 (filed Nov. 15, 2017). 45 See NCTA Comments at 67 (stating that “the Commission possesses the authority to preempt state and local regulation regardless of the federal framework it adopts—even if it refrains from imposing any ex ante open Internet rules at this time.”). 46 See Verizon White Paper at 2-4; McDowell Testimony at 14 (explaining that “state laws pose a direct threat to restoring the light-touch bipartisan regulatory framework that allowed the Internet to become the powerful consumer tool it is today”). comment process has been irreparably tainted by the large number of fake comments. That view reflects a lack of understanding about the Administrative Procedure Act. The agency is required to consider and respond to all significant comments in the record. 47 Millions of comments that simply say something along the lines of “keep net neutrality” or other colorful language we can’t say in public – whether they are submitted by real people, bots, or honey badgers – have no impact on the decision. As the order makes clear, we do not rely on any such comments. While it is possible that the agency may want to tighten the comment filing system going forward, the fact of the matter is that fake comments are not unique to this proceeding and had no impact on the substance or propriety of the decision. To be clear, that does not mean that comments were ignored. I commend staff for the extra effort they had to take to sift through the extraneous comments. Many were simply obscenity laced tirades. Yet the order reflects a careful evaluation and response to all significant comments, including those that took a different position. Unlike the 2015 order where opposing viewpoints were relegated to footnotes and dismissed without commentary, often in the form of lengthy “but see” string cites, this order engages with and responds to such comments in a credible and substantive way. Additionally, I disagree with the suggestion that the Commission should have held public hearings. Any member of the public that wanted to express a view could have done so through the standard comment process, and many, many did. Public hearings may bring out some additional people in a particular location, but it is inefficient for reaching large numbers of interested parties from around the country. Finally, I see no merit in the suggestion that the agency should have delayed this vote until after the Ninth Circuit issues a decision en banc in the FTC v. AT&T Mobility LLC case. While the panel decision raised some questions about the FTC’s jurisdiction, it was widely viewed with skepticism. Moreover, the court’s order granting en banc rehearing of the panel decision rendered it a “legal nullity.” 48 Therefore, the FTC is not precluded from enforcing ISPs’ net neutrality commitments. 49 In short, there is no basis for a delay. I commend the Chairman, his team, and our hardworking and diligent staff for the enormous effort to produce an order of this quality and significance. I am sure that this task required long days and much time spent away from family and friends, and I hope that you will be able to rest and reconnect over this holiday season. It is very deserved and you have my full respect and profound appreciation for your work. I vote to approve. 47 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 553 (1978) (“[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of consideration becomes of concern.”); National Ass’n of Manufacturers v. EPA, 650 F.3d 921 (D.C. Cir. 2014) (noting an agency needs to address only “the more significant comments”). 48 See NCTA Comments at 55. 49 See id.