Framework for Broadband Internet Service, 36071-36088 [2010-15349]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 121 (Thursday, June 24, 2010)]
[Notices]
[Pages 36071-36088]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15349]


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FEDERAL COMMUNICATIONS COMMISSION

[GN Docket No. 10-127; FCC 10-114]


Framework for Broadband Internet Service

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document begins an open, public process to consider the 
adequacy of the current legal framework within which the Commission 
promotes investment and innovation in, and protects consumers of, 
broadband Internet service. Recent developments--including a decision 
of the United States Court of Appeals for the District of Columbia 
Circuit and affirmation from Congress that the Commission plays a vital 
role with respect to broadband--lead the Commission to seek comment on 
our legal framework for broadband Internet service.

DATES: Comments must be submitted by July 15, 2010, and reply comments 
must be submitted by August 12, 2010.

ADDRESSES: You may submit comments, identified by GN Docket No. 10-127, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Chris Killion or David Tannenbaum, 
Office of General Counsel, 202-418-1700.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Inquiry (Notice), FCC 10-114, adopted on June 17, 2010, and released 
on June 17, 2010. Interested parties may file comments on or before 
July 15, 2010, and reply comments on or before August 12, 2010. 
Comments and reply comments may be filed: (1) Using the Commission's 
Electronic Comment Filing System (ECFS), (2) using the Federal 
Government's eRulemaking Portal, or (3) by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, 
May 1, 1998. All filings related to this Notice should refer to GN 
Docket No. 10-127. Further, we strongly encourage parties to develop 
responses to this Notice that adhere to the organization and structure 
of this Notice.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies 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 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes 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 12th Street, SW., Washington, DC 20554.
    Parties shall also serve one copy with the Commission's copy 
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via 
e-mail to fcc@bcpiweb.com.
    The inquiry this Notice initiates shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentations must contain summaries of the 
substance of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented generally is required. Other requirements 
pertaining to oral and written presentations are set forth in section 
1.1206(b) of the Commission's rules. Ex parte comments may be filed at 
any time except during the Sunshine Period. Ex parte comments may be 
filed: (1) Using the Commission's Electronic Comment Filing System 
(ECFS), (2) using the Federal Government's eRulemaking Portal, (3) by 
filing paper copies, or (4) by posting comments and ideas on the 
Broadband.gov blog at https://blog.broadband.gov/?categoryId=494971 or 
on https://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. 
In addition to the usual methods for filing ex parte comments, the 
Commission is allowing ex parte comments in this proceeding to be filed 
by posting comments on https://blog.broadband.gov/?categoryId=494971 and 
on https://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. 
Accordingly, persons wishing to examine the record in this proceeding 
should examine the record on ECFS, https://blog.broadband.gov/?categoryId=494971 and https://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. Although those posting comments on 
the blog may choose to provide identifying information or may comment 
anonymously, anonymous comments will not be part of the record in this 
proceeding and accordingly will not be relied on by the Commission in 
reaching its conclusions in this rulemaking. The Commission will not 
rely on anonymous postings in reaching conclusions in this matter 
because of

[[Page 36072]]

the difficulty in verifying the accuracy of information in anonymous 
postings. Should posters provide identifying information, they should 
be aware that although such information will not be posted on the blog, 
it will be publicly available for inspection upon request.
    Documents in GN Docket No. 10-127 will be available for public 
inspection and copying during business hours at the FCC Reference 
Information Center, Portals II, 445 12th Street, SW., Room CY-A257, 
Washington, DC 20554. The documents may also be purchased from BCPI, 
telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, 
e-mail fcc@bcpiweb.com.
    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).
    1. This Notice begins an open, public process to consider the 
adequacy of the current legal framework within which the Commission 
promotes investment and innovation in, and protects consumers of, 
broadband Internet service. In this Notice we use the term ``broadband 
Internet service'' to refer to the bundle of services that facilities-
based providers sell to end users in the retail market. This bundle 
allows end users to connect to the Internet, and often includes other 
services such as e-mail and online storage. In prior orders we have 
referred to this bundle as ``broadband Internet access service.'' We 
use the term ``wired,'' as in ``wired broadband Internet service,'' to 
distinguish platforms such as digital subscriber line (DSL), fiber, 
cable modem, and broadband over power lines (BPL), from platforms that 
rely on wireless connections to provide Internet connectivity and other 
services in the last mile. We refer to the service that may constitute 
a telecommunications service as ``Internet connectivity service'' or 
``broadband Internet connectivity service.'' As discussed below, 
Internet connectivity service allows users to communicate with others 
who have Internet connections, send and receive content, and run 
applications online. For administrative simplicity we incorporate the 
same distinction between broadband and narrowband that the Commission 
applied in the classification orders we revisit here. That is, services 
with over 200 kbps capability in at least one direction will be 
considered ``broadband'' for the particular purposes of these Notices. 
Until a recent decision of the United States Court of Appeals for the 
District of Columbia Circuit, there was a settled approach to 
facilities-based broadband Internet service, which combined minimal 
regulation with meaningful Commission oversight. The Comcast opinion, 
however, held that the Commission went too far when it relied on its 
``ancillary authority'' to enjoin a cable operator from secretly 
degrading its customers' lawful Internet traffic. Comcast appears to 
undermine prior understandings about the Commission's ability under the 
current framework to provide consumers basic protections when they use 
today's broadband Internet services. Moreover, the current legal 
classification of broadband Internet service is based on a record that 
was gathered a decade ago. Congress, meanwhile, has reaffirmed the 
Commission's vital role with respect to broadband, and the Commission 
has developed a National Broadband Plan recommending specific agency 
actions to encourage deployment and adoption. The Plan contains dozens 
of recommendations to fulfill the congressional aims articulated in the 
Recovery Act, including specific proposals to increase access and 
affordability; maximize utilization of broadband Internet services; and 
enhance public safety, consumer welfare and education throughout the 
United States. Roughly half of the Plan's recommendations are directed 
to the Commission itself.
    2. These developments lead us to seek comment on our legal 
framework for broadband Internet service. In addition to seeking 
original suggestions from commenters, we ask questions about three 
specific approaches. First addressing the wired service offered by 
telephone and cable companies and other providers, we seek comment on 
whether our ``information service'' classification of broadband 
Internet service remains adequate to support effective performance of 
the Commission's responsibilities. We then ask for comment on the legal 
and practical consequences of classifying Internet connectivity service 
as a ``telecommunications service'' to which all the requirements of 
Title II of the Communications Act would apply. Finally, we identify 
and invite comment on a third way under which the Commission would: (i) 
Reaffirm that Internet information services should remain generally 
unregulated; (ii) identify the Internet connectivity service that is 
offered as part of wired broadband Internet service (and only this 
connectivity service) as a telecommunications service; and (iii) 
forbear under section 10 of the Communications Act from applying all 
provisions of Title II other than the small number that are needed to 
implement the fundamental universal service, competition and small 
business opportunity, and consumer protection policies that have 
received broad support. We seek comment on the same issues as they 
relate to terrestrial wireless and satellite broadband Internet 
services, as well as on other factual and legal issues specific to 
these wireless services that bear on their appropriate classification. 
We further seek comment on discrete issues, including the states' 
proper role with respect to broadband Internet service.

Introduction

    3. This Commission exists ``[f]or the purpose of regulating 
interstate and foreign commerce in communication by wire and radio so 
as to make available, so far as possible, to all people of the United 
States * * * a rapid, efficient, Nation-wide, and world-wide wire and 
radio communication service with adequate facilities at reasonable 
charges, for the purpose of the national defense, [and] for the purpose 
of promoting safety of life and property through the use of wire and 
radio communications.'' During more than 75 years of technological 
progress--from the time of tube radios and telephone switchboards to 
the modern era of converged digital services--the Commission has 
promoted innovation and investment in new communications services and 
protected and empowered the businesses and consumers who depend on 
them.
    4. We have held to our pro-competition and pro-consumer mission in 
the Internet Age. Indeed, for at least the last decade the Commission 
has taken a consistent approach to Internet services--one that industry 
has endorsed and Congress and the United States Supreme Court have 
approved. This approach consists of three elements: The Commission 
generally does not regulate Internet content and applications; access 
to an Internet service provider via a dial-up connection is subject to 
the regulatory rules for telephone service; and for the broadband 
Internet services that most consumers now use to reach the Internet, 
the Commission has refrained from regulation when possible, but has the 
authority to step in when necessary to protect consumers and fair 
competition.
    5. The first element of our consistent approach, preserving the 
Internet's capacity to enable a free and open forum for innovation, 
speech, education, and job creation, finds expression in (among other 
provisions) section 230 of the

[[Page 36073]]

Communications Act, which states Congress's conclusion that ``[t]he 
Internet and other interactive computer services have flourished, to 
the benefit of all Americans, with a minimum of government 
regulation.''
    6. The second element, oversight of dial-up access to the Internet 
under the common carriage framework of Title II of the Communications 
Act, is a facet of traditional telephone regulation. Although Internet 
users increasingly depend on broadband communications connections for 
Internet access, approximately 5.6 million American households still 
use a dial-up telephone connection.
    7. The third element of the framework, restrained oversight of 
broadband Internet service, was expressed clearly on September 23, 
2005, for example, when the Commission released two companion 
decisions. The first ``establishe[d] a minimal regulatory environment 
for wireline broadband Internet access services.'' It reclassified 
telephone companies' broadband Internet service offerings as 
indivisible ``information services'' subject only to potential 
regulation under Title I of the Communications Act and the doctrine of 
ancillary authority. In that decision, the Commission articulated its 
belief that ``the predicates for ancillary jurisdiction are likely 
satisfied for any consumer protection, network reliability, or national 
security obligation that we may subsequently decide to impose on 
wireline broadband Internet access service providers.'' The second 
decision that day adopted principles for an open Internet, again 
expressing confidence that the Commission had the ``jurisdiction 
necessary to ensure that providers of telecommunications for Internet 
access * * * are operated in a neutral manner.'' Earlier this year, the 
Commission unanimously reaffirmed in a Joint Statement on Broadband 
that ``[e]very American should have a meaningful opportunity to benefit 
from the broadband communications era,'' and that ``[w]orking to make 
sure that America has world-leading high-speed broadband networks--both 
wired and wireless--lies at the very core of the FCC's mission in the 
21st Century.'' Together, these and other agency decisions show the 
Commission's commitment to restrained oversight of broadband Internet 
service, and its equally strong resolve to ensure universal service and 
protect consumers and fair competition in this area when necessary.
    8. Before the Comcast case, most stakeholders--including major 
communications service providers--shared the Commission's view that the 
information service classification allowed the Commission to exercise 
jurisdiction over broadband Internet services when required. But the 
D.C. Circuit concluded that the Commission lacked authority to prohibit 
practices of a major cable modem Internet service provider that 
involved secret interruption of lawful Internet transmissions, which 
the Commission found were unjustified and discriminatory and denied 
users the ability to access the Internet content and applications of 
their choice. Today, in the wake of the Comcast decision, the 
Commission faces serious questions about the legal framework that will 
best enable it to carry out, with respect to broadband Internet 
service, the purposes for which Congress established the agency. 
Meanwhile, Congress has highlighted the importance of broadband 
networks and Internet-based content and services for economic growth 
and development and has directed the Commission to develop policies to 
address concerns about the pace of deployment, adoption, and 
utilization of broadband Internet services in the United States.
    9. Comcast makes unavoidable the question whether the Commission's 
current legal approach is adequate to implement Congress's directives. 
In this Notice, we seek comment on the best way for the Commission to 
fulfill its statutory mission with respect to broadband Internet 
service in light of the legal and factual circumstances that exist 
today. We do so while standing ready to serve as a resource to Congress 
as it considers additional legislation in this area. Commenters may 
wish to address how the Commission should proceed on these issues in 
light of Congressional developments.
    10. We emphasize that the purpose of this proceeding is to ensure 
that the Commission can act within the scope of its delegated authority 
to implement Congress's directives with regard to the broadband 
communications networks used for Internet access. These networks are 
within the Commission's subject-matter jurisdiction over communication 
by wire and radio and historically have been supervised by the 
Commission. We do not suggest regulating Internet applications, much 
less the content of Internet communications. We also will not address 
in this proceeding other Internet facilities or services that currently 
are lightly regulated or unregulated, such as the Internet backbone, 
content delivery networks (CDNs), over-the-top video services, or 
voice-over-Internet-Protocol (VoIP) telephony services. Our questions 
instead are directed toward addressing broadband Internet service in a 
way that is consistent with the Communications Act, reduces uncertainty 
that may chill investment and innovation if allowed to continue, and 
accomplishes Congress's pro-consumer, pro-competition goals for 
broadband.

Discussion

Background

    11. The Commission has long sought to ensure that communications 
networks support a robust marketplace for computer services operated 
over publicly accessible networks, from the early database lookup 
services to today's social networking sites. To provide context for the 
later discussion of the Commission's options for a suitable framework 
for broadband Internet service, we briefly describe this historical 
backdrop.

The Commission's Classification Decisions

    12. In 1966, the Commission initiated its Computer Inquiries ``to 
ascertain whether the services and facilities offered by common 
carriers are compatible with the present and anticipated communications 
requirements of computer users.'' In Computer I, the Commission 
required ``maximum separation'' between large carriers that offered 
data transmission services subject to common carrier requirements and 
their affiliates that sold data processing services. Refining this 
approach, in Computer II and Computer III the Commission required 
facilities-based providers of ``enhanced services'' to separate out and 
offer on a common carrier basis the ``basic service'' transmission 
component underlying their enhanced services.
    13. In the Telecommunications Act of 1996, Congress built upon the 
Computer Inquiries by codifying the Commission's distinction between 
``telecommunications services'' used to transmit information (akin to 
offerings of ``basic services'') and ``information services'' that run 
over the network (akin to ``enhanced services''). In a 1998 report to 
Congress, the Commission attempted to indicate how it might apply the 
new law in the Internet context. Approximately 98 percent of households 
with Internet connections then used traditional telephone service to 
``dial up'' their Internet access service provider, which was typically 
a separate entity from their telephone company. In the report to 
Congress--widely known as the ``Stevens Report,'' after Senator Ted 
Stevens--the Commission stated

[[Page 36074]]

that Internet access service as it was then being provided was an 
``information service.'' The Stevens Report declined to address whether 
entities that provided Internet connectivity over their own network 
facilities were offering a separate telecommunications component. The 
courts, rather than the Commission, first answered that question.
    14. In 2000 the United States Court of Appeals for the Ninth 
Circuit held that cable modem Internet service is a telecommunications 
service to the extent that the cable operator ``provides its 
subscribers Internet transmission over its cable broadband facility'' 
and an information service to the extent the operator acts as a 
``conventional [Internet Service Provider (ISP)].'' At the time, the 
Commission's Computer Inquiry rules required telephone companies to 
offer their digital subscriber line (DSL) transmission services as 
telecommunications services. The Ninth Circuit's decision thus put 
cable companies' broadband transmission service on a regulatory par 
with DSL transmission service.
    15. In 2002, the Commission exercised its authority to interpret 
the Act and disagreed with the Ninth Circuit. Addressing the 
classification of cable modem service, the Commission observed that 
``[t]he Communications Act does not clearly indicate how cable modem 
service should be classified or regulated.'' Based on a factual record 
that had been compiled largely in 2000, the Commission's Cable Modem 
Declaratory Ruling described cable modem service as ``typically 
includ[ing] many and sometimes all of the functions made available 
through dial-up Internet access service, including content, e-mail 
accounts, access to news groups, the ability to create a personal Web 
page, and the ability to retrieve information from the Internet, 
including access to the World Wide Web.'' The Commission noted that 
cable modem providers often consolidated these functions ``so that 
subscribers usually do not need to contract separately with another 
Internet access provider to obtain discrete services or applications, 
such as an e-mail account or connectivity to the Internet, including 
access to the World Wide Web.'' The Commission defined cable modem 
service as ``a service that uses cable system facilities to provide 
residential subscribers with high-speed Internet access, as well as 
many applications or functions that can be used with high-speed 
Internet access.''
    16. The Commission identified a portion of the cable modem service 
it called ``Internet connectivity,'' which it described as establishing 
a physical connection to the Internet and interconnecting with the 
Internet backbone, and sometimes including protocol conversion, 
Internet Protocol (IP) address number assignment, domain name 
resolution through a domain name system (DNS), network security, 
caching, network monitoring, capacity engineering and management, fault 
management, and troubleshooting. The Ruling also noted that ``[n]etwork 
monitoring, capacity engineering and management, fault management, and 
troubleshooting are Internet access service functions that are 
generally performed at an ISP or cable operator's Network Operations 
Center (NOC) or back office and serve to provide a steady and accurate 
flow of information between the cable system to which the subscriber is 
connected and the Internet.'' The Commission distinguished these 
functions from ``Internet applications [also] provided through cable 
modem services,'' including ``e-mail, access to online newsgroups, and 
creating or obtaining and aggregating content,'' ``home pages,'' and 
``the ability to create a personal Web page.''
    17. The Commission found that cable modem service was ``an offering 
. . . which combines the transmission of data with computer processing, 
information provision, and computer interactivity, enabling end users 
to run a variety of applications.'' The Commission further concluded 
that, ``as it [was] currently offered,'' cable modem service as a whole 
met the statutory definition of ``information service'' because its 
components were best viewed as a ``single, integrated service that 
enables the subscriber to utilize Internet access service,'' with a 
telecommunications component that was ``not . . . separable from the 
data processing capabilities of the service.'' The Commission thus 
concluded that cable modem service ``does not include an offering of 
telecommunications service to subscribers.''
    18. When the United States Supreme Court considered the Cable Modem 
Declaratory Ruling in the Brand X case, all parties agreed that cable 
modem service either is or includes an information service. The Court 
therefore focused, in pertinent part, on whether the Commission 
permissibly interpreted the Communications Act in concluding that cable 
modem service providers offer only an information service, rather than 
a separate telecommunications service and information service. The 
Court's opinion reaffirms that courts must defer to the implementing 
agency's reasonable interpretation of an ambiguous statute. Justice 
Thomas, writing for the six-Justice majority, recited that 
``ambiguities in statutes within an agency's jurisdiction to administer 
are delegations of authority to the agency to fill the statutory gap in 
reasonable fashion. Filling these gaps * * * involves difficult policy 
choices that agencies are better equipped to make than courts.'' 
Furthermore, ``[a]n initial agency interpretation is not instantly 
carved in stone. On the contrary, the agency * * * must consider 
varying interpretations and the wisdom of its policy on a continuing 
basis.''
    19. Turning specifically to the Communications Act, Justice Thomas 
wrote: ``[T]he statute fails unambiguously to classify the 
telecommunications component of cable modem service as a distinct 
offering. This leaves federal telecommunications policy in this 
technical and complex area to be set by the Commission.'' ``The 
questions the Commission resolved in the order under review,'' Justice 
Thomas summed up, ``involve a subject matter [that] is technical, 
complex, and dynamic. The Commission is in a far better position to 
address these questions than we are.'' Justice Breyer concurred with 
Justice Thomas, stating that he ``believe[d] that the Federal 
Communications Commission's decision falls within the scope of its 
statutorily delegated authority,'' although ``perhaps just barely.''
    20. In dissent, Justice Scalia, joined by Justices Souter and 
Ginsburg, expressed the view that the Commission had adopted ``an 
implausible reading of the statute[,] * * * thus exceed[ing] the 
authority given it by Congress.'' Justice Scalia reasoned that ``the 
telecommunications component of cable-modem service retains such ample 
independent identity that it must be regarded as being on offer--
especially when seen from the perspective of the consumer or end 
user.''
    21. After the Supreme Court affirmed the Commission's authority to 
classify cable modem service, the Commission eliminated the resulting 
regulatory asymmetry between cable companies and other broadband 
Internet service providers by issuing follow-on orders that extended 
the information service classification to broadband Internet services 
offered over DSL and other wireline facilities, power lines, and 
wireless facilities. The Commission nevertheless allowed these 
providers, at their own discretion, to offer the broadband transmission 
component of their Internet service as a separate telecommunications 
service. Exercising that flexibility, providers--including more than 
840 incumbent local

[[Page 36075]]

telephone companies--currently offer broadband transmission as a 
telecommunications service expressly separate from their Internet 
information service.

The Commission's Established Policy Goals

    22. In the 1996 Act, Congress made clear its desire that the 
Commission promote the widespread availability of affordable Internet 
connectivity services, directing the Commission to adopt universal 
service mechanisms to ensure that ``[a]ccess to advanced 
telecommunications and information services * * * [is] provided in all 
regions of the Nation.'' Congress also instructed the Commission to 
``encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans.'' The Commission's 
classification decisions in the Cable Modem Declaratory Ruling and the 
later follow-on orders were intended to support the policy goal of 
encouraging widespread deployment of broadband. The Commission's 
hypothesis was that classifying all of broadband Internet service as an 
information service, outside the scope of any specific regulatory duty 
in the Act, would help achieve Congress' aims.
    23. At the same time, the Commission acted with the express 
understanding that its information service classifications would not 
impair the agency's ability to protect the public interest. For 
example, when the Commission permitted telephone companies to offer 
broadband Internet service as solely an information service, it 
emphasized that this new classification would not remove the agency's 
``ample'' Title I authority to accomplish policy objectives related to 
consumer protection, network reliability, and national security. The 
Wireline Broadband Report and Order thus was accompanied by a Broadband 
Consumer Protection Notice, in which the Commission sought comment on 
``a framework that ensures that consumer protection needs are met by 
all providers of broadband Internet access service, regardless of the 
underlying technology.'' The Commission stressed that its ancillary 
jurisdiction was ``ample to accomplish the consumer protection goals we 
identify.'' The Commission similarly referenced the Broadband Consumer 
Protection Notice when it extended the information service 
classification to broadband Internet services offered over power lines 
and wireless facilities.
    24. On the same day it adopted the Wireline Broadband Report and 
Order and Broadband Consumer Protection Notice, moreover, the 
Commission unanimously adopted the Internet Policy Statement. In this 
Statement, the Commission articulated four principles ``[t]o encourage 
broadband deployment and preserve and promote the open and 
interconnected nature of the public Internet,'' and to ``foster 
creation adoption and use of Internet broadband content, applications, 
services and attachments, and to insure consumers benefit from the 
innovation that comes from competition.'' The principles are:
     consumers are entitled to access the lawful Internet 
content of their choice;
     consumers are entitled to run applications and use 
services of their choice, subject to the needs of law enforcement;
     consumers are entitled to connect their choice of legal 
devices that do not harm the network; and
     consumers are entitled to competition among network 
providers, application and service providers, and content providers. 
All principles are subject to reasonable network management.
    The Commission expressed confidence that it had the ``jurisdiction 
necessary to ensure that providers of telecommunications for Internet 
access * * * are operated in a neutral manner.''

Legal Developments

    25. Recent legislative and judicial developments suggest a need to 
revisit the Commission's approach to broadband Internet service. Since 
2008, Congress has passed three significant pieces of legislation that 
reflect its strong interest in ubiquitous deployment of high speed 
broadband communications networks and bear on the Commission's policy 
goals for broadband: the 2008 Farm Bill directing the Chairman to 
submit to Congress ``a comprehensive rural broadband strategy,'' 
including recommendations for the rapid buildout of broadband in rural 
areas and for how federal resources can ``best * * * overcome obstacles 
that impede broadband deployment''; the Broadband Data Improvement Act, 
to improve data collection and ``promote the deployment of affordable 
broadband services to all parts of the Nation''; and the Recovery Act, 
which, among other things, appropriated up to $7.2 billion to evaluate, 
develop, and expand access to and use of broadband services, and 
required the Commission to develop the National Broadband Plan to 
ensure that every American has ``access to broadband capability and * * 
* establish benchmarks for meeting that goal.'' In the Recovery Act, 
Congress further directed the Commission to produce a ``detailed 
strategy for achieving affordability of such service and maximum 
utilization of broadband infrastructure and service by the public,'' 
and a ``plan for [the] use of broadband structure and services'' to 
advance national goals such as public safety, consumer welfare, and 
education. These three pieces of legislation, passed within a span of 
nine months, make clear that the Commission must retain its focus on 
implementing broadband policies that encourage investment, innovation, 
and competition, and promote the interests of consumers.
    26. Even more recently, the D.C. Circuit's rejection of the 
Commission's attempt to address a broadband Internet service provider's 
unreasonable traffic disruption practices has cast a shadow over the 
Commission's prior understanding of its authority over broadband 
Internet services. In late 2007, the Commission received a complaint 
alleging that Comcast was blocking peer-to-peer traffic in violation of 
the Internet Policy Statement. In 2008, the Commission granted the 
complaint and directed Comcast to disclose specific information about 
its network management practices to the Commission, submit a compliance 
plan detailing how it would transition away from unreasonable network 
management practices, and disclose to the public the network management 
practices it intends to use going forward. Comcast challenged that 
decision in the D.C. Circuit, arguing (among other things) that the 
Commission lacks authority to prohibit a broadband Internet service 
provider from engaging in discriminatory practices that violate the 
four principles the Commission announced in 2005.
    27. On April 6, 2010, the D.C. Circuit granted Comcast's petition 
for review and vacated the Commission's enforcement decision, holding 
that the Commission had ``failed to tie its assertion of ancillary 
authority over Comcast's Internet service to any `statutorily mandated 
responsibility.''' The Commission had argued that ending Comcast's 
secret practices was ancillary to the statutory objectives Congress 
established for the Commission in sections 1 and 230(b) of the Act. The 
court rejected that argument on the ground that those sections are 
merely statements of policy by Congress--as opposed to grants of 
regulatory authority--and thus were not sufficient to support 
Commission action against Comcast. The court also rejected the 
Commission's position that various

[[Page 36076]]

other statutory provisions supported ancillary authority. 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. The court also rejected the 
agency's reliance on sections 201, 256, 257, and 623 of the 
Communications Act.

Approaches to Classification

    28. In light of the legislative and judicial developments described 
above, we seek comment on whether our existing legal framework 
adequately supports the Commission's previously stated policy goals for 
broadband. First, we ask whether the current information service 
classification of broadband Internet service can still support 
effective performance of the Commission's core responsibilities. 
Second, we ask for comment on the legal and practical consequences of 
classifying the Internet connectivity component of broadband Internet 
service as a ``telecommunications service'' to which the full weight of 
Title II requirements would apply, and whether such a classification 
would accurately reflect the current market facts. Finally, we identify 
and invite comment on a third way, under which the Commission would 
classify the Internet connectivity portion of broadband Internet 
service as a telecommunications service but would simultaneously 
forbear, using the section 10 authority Congress delegated to us, from 
all but a small handful of provisions necessary for effective 
implementation of universal service, competition and small business 
opportunity, and consumer protection policies.
    29. The Commission has frequently expressed its commitment to 
protecting consumers and promoting innovation, investment, and 
competition in the broadband context. We reaffirm that commitment here 
and ask commenters to address--in general terms, as well as in response 
to the specific questions posed below--which of the three alternative 
regulatory frameworks for broadband Internet service (or what other 
framework) will best position the Commission to advance these 
fundamental goals. We note that because the broadband Internet service 
classification questions posed in this part II.B involve an 
interpretation of the Communications Act, the notice and comment 
procedures we follow here are not required under the Administrative 
Procedure Act. In order to provide the greatest possible opportunity 
for public comment, however, we are soliciting initial and reply 
comments via the traditional filing mechanisms, as well as input 
through our recently expanded online participation tools.

Continued Information Service Classification and Reliance on Ancillary 
Authority

    30. In this part, we seek comment on maintaining the current 
classification of wired broadband Internet service as a unitary 
information service. Under this approach, we would rely primarily on 
our ancillary authority to implement the Commission's broadband 
policies. We seek comment on whether our ancillary authority continues 
to provide an adequate legal foundation. Throughout the last decade, 
the Commission has stated its consistent understanding that Title I 
provided the Commission adequate authority to support effective 
performance of its core responsibilities. Commissioners, including the 
two former Chairmen who urged the information service approach, as well 
as cable and telephone companies and other interested parties, 
individually expressed this understanding. In Brand X, the Supreme 
Court appeared to confirm this widely held view, stating that ``the 
Commission remains free to impose special regulatory duties on 
facilities-based ISPs under its Title I ancillary jurisdiction.'' The 
Comcast decision, however, causes us to reexamine our ability to rely 
on Title I as the legal basis for implementing broadband policies.
    31. Some have suggested that although the D.C. Circuit rejected the 
Commission's theory of ancillary authority in Comcast, the Commission 
can still accomplish many of its most important broadband-related goals 
without changing its classification of broadband Internet service as a 
unitary information service. We seek comment on the overall scope of 
the Commission's authority regarding broadband Internet service in the 
wake of the Comcast decision. Below we identify and seek comment on 
several particular concerns.

Universal Service

    32. Can the Commission reform its universal service program to 
support broadband Internet service by asserting direct authority under 
section 254, combined with ancillary authority under Title I? AT&T, for 
example, observes that section 254 provides that ``[a]ccess to advanced 
telecommunications and information services should be provided in all 
regions of the nation,'' and that the Commission's universal service 
programs ``shall'' be based on this and other enumerated principles. 
AT&T notes that the Commission's information service classification for 
broadband Internet service creates ``tension'' with ``the text of 
Section 254(c)(1), which states that `[u]niversal service is an 
evolving level of telecommunications services that the Commission shall 
establish periodically under this section.' '' But, AT&T suggests, 
``[o]ther evidence in the statutory text makes clear that Congress did 
not intend to disable the Commission from using universal service to 
support information services.'' For example,
     ``Section 254(b) requires the Commission to use universal 
service to promote access to `advanced telecommunications and 
information services,' ''
     ``Section 254(c) * * * [refers] to an `evolving level of 
telecommunications services that the Commission shall establish 
periodically under this section[,]' '' and
     Section 254(c)(2) ``expressly authoriz[es] the Joint Board 
and the Commission to `modif[y] * * * the definition of the services 
that are supported by Federal universal support mechanisms.' '' The 
reference to ``services'' in section 254(c)(2) may suggest that 
Congress intended universal service policies to support information 
services, even though the definition of universal service in section 
254(c)(1) is explicitly limited to ``telecommunications services.''
    AT&T explains that section 254 ``contains competing directives,'' 
but asserts that ``the schizophrenic nature of Section 254 is simply 
another example of the many ways in which the 1996 Act is not a `model 
of clarity.' ''
    33. We seek comment on whether we may interpret section 254 to give 
the Commission authority to provide universal service support for 
broadband Internet service if that service is classified as a unitary 
information service. Could we provide support to information service 
providers consistent with section 254(e), which says that ``only an 
eligible telecommunications carrier designated under section 214(e) 
shall be eligible to receive specific Federal universal service 
support,'' and 214(e), which sets forth the framework for designating 
``telecommunications carrier[s] * * * eligible to receive universal 
service support''?
    34. AT&T posits that even after the Comcast decision, the 
Commission could bolster its reliance on section 254 by also relying on 
several other provisions of the Act. First, the ``necessary and proper 
clause'' in section

[[Page 36077]]

4(i) of the Act allows the Commission to ``perform any and all acts, 
make such rules and regulations, and issue such orders, not 
inconsistent with this chapter, as may be necessary in the execution of 
its functions.'' Second, the Act makes clear that the Commission's 
``core statutory mission'' is to ``make available, so far as possible, 
to all the people of the United States * * * a rapid, efficient, 
Nation-wide and world-wide wire and radio communication service with 
adequate facilities at reasonable charges.'' Third, the text of 254, as 
described above, suggests that Congress intended the Commission to 
support universal broadband Internet service. Finally, the policy 
directive in section 706 of the 1996 Act instructs the Commission to 
encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans. AT&T contends that 
section 706's directive supports the view that section 254 provides 
authority for supporting broadband Internet services with monies from 
the Universal Service Fund. We seek comment on AT&T's analysis.
    35. The National Cable and Telecommunications Association (NCTA) 
has put forward a similar legal theory rooted in section 254(h)(2) of 
the Communications Act. That section gives the Commission authority 
``to enhance * * * access to advanced telecommunications and 
information services for all public and non-profit elementary and 
secondary school classrooms, health care providers, and libraries.'' 
NCTA contends that because ``the use of broadband in the home has 
become a critical component of the American education system * * * it 
is entirely reasonable to read the statutory directive to support 
Internet access for classrooms to include support for residential 
broadband service to households where it is reasonably likely that such 
service would be used for educational purposes.'' Could the Commission 
interpret section 254(h)(2) to permit this type of support for 
broadband Internet service? Is this approach a permissible extension of 
the Commission's existing E-Rate program? Would this approach enable 
the Commission to provide support for broadband Internet service only 
to households with school-aged children, or could the Commission 
provide support for adult education as well?
    36. Another legal theory for promoting broadband deployment under 
the Commission's current classification of broadband Internet service 
rests directly on section 706 of the 1996 Act. Section 706(a) states 
that 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.'' Section 706(c) defines 
``advanced telecommunications capability'' 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.'' The D.C. Circuit rejected 
section 706(a) as a basis for the Commission's Comcast order because 
``[i]n an earlier, still-binding order * * * the Commission ruled that 
section 706 `does not constitute an independent grant of authority,' '' 
and ``agencies `may not * * * depart from a prior policy sub silentio.' 
'' We seek comment on whether the Commission should revisit and change 
its conclusion that section 706(a) is not an independent grant of 
authority. What findings would be necessary to reverse that 
interpretation? If the Commission were to find that section 706(a) is 
an independent grant of authority, would that subsection, read in 
conjunction with sections 4(i) and 254, provide a firm basis for the 
Commission to provide universal service support for broadband Internet 
services?
    37. Some parties have suggested that the Commission could rely on 
section 706(b) as a source of authority to support broadband Internet 
service with Universal Service Fund money. That section provides that:

    [t]he Commission shall * * * annually * * * initiate a notice of 
inquiry concerning the availability of advanced telecommunications 
capability to all Americans * * * . In the inquiry, the Commission 
shall determine whether advanced telecommunications capability is 
being deployed to all Americans in a reasonable and timely fashion. 
If the Commission's determination is negative, 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.

    We seek comment on whether we could interpret section 706(b) as an 
independent grant of authority. Specifically, we ask whether Congress's 
direction that the Commission take ``immediate action'' if it makes a 
negative determination about the state of broadband deployment 
authorizes the Commission to provide universal service support to spur 
that deployment. Would any such support be contingent on continued 
negative findings in the annual broadband availability inquiry? Under 
section 706(b), would universal service programs have to be tailored to 
particular geographic areas where deployment is lagging, or could the 
Commission implement the program on a national basis? Would the 
Commission be limited to direct support for deployment, or could the 
Commission interpret section 706(b) also to support broadband Internet 
services to low-income populations, such as is the case with our 
support for voice services in the Lifeline and Link Up programs?
    38. For each of these legal theories, the Commission seeks comment 
on the administrative record that would be needed to successfully 
defend against a legal challenge to implementation of the theory. Would 
adopting these theories be consistent with the federal Anti-Deficiency 
Act and Miscellaneous Receipts Act? What other issues should the 
Commission consider in evaluating these legal theories? Are there other 
legal frameworks that would allow us to promote universal service in 
the broadband context without revisiting our classification decisions?

Privacy

    39. The Commission has long supported protecting the privacy of 
users of broadband Internet services. In 2005, the Commission 
emphasized in the Wireline Broadband Report and Order that 
``[c]onsumers' privacy needs are no less important when consumers 
communicate over and use broadband Internet access than when they rely 
on [telephone] services.'' The Commission believed at the time that it 
had jurisdiction to enforce privacy requirements, and ``note[d] that 
long before Congress enacted section 222 of the Act,'' which requires 
providers of telecommunications services to protect confidential 
information, ``the Commission had recognized the need for privacy 
requirements associated with the provision of enhanced services.'' In 
2007, the Commission extended the privacy protections of section 222 to 
interconnected VoIP services without resolving whether interconnected 
VoIP services are telecommunications services or information services. 
More recently, the National Broadband Plan recommended that the 
Commission work with the Federal Trade Commission (FTC) to protect 
consumers' privacy in the broadband context. Indeed, we fully intend 
that our efforts with regard to

[[Page 36078]]

privacy complement those of the FTC. We seek comment on the best 
approach for ensuring privacy for broadband Internet service users 
under the Commission's current information service classification, and 
any legal obstacles to protecting privacy that may exist if the 
Commission retains that classification.

Access for Individuals With Disabilities

    40. Section 255 requires telecommunications service providers and 
equipment manufacturers to make their services and equipment accessible 
to individuals with disabilities, unless not readily achievable. 
Section 251(a)(2) requires telecommunications carriers ``not to install 
network features, functions, or capabilities that do not comply with 
the guidelines and standards established pursuant to section 255.'' In 
the 2005 Wireline Broadband Report and Order, the Commission committed 
to exercise its authority ``to ensure achievement of important policy 
goals of section 255'' in the broadband context. In 2007, the 
Commission exercised its ancillary authority to extend section 255 to 
interconnected VoIP providers, and in 1999 the Commission similarly 
relied on ancillary authority to extend disability-related requirements 
to voicemail and interactive menu services. The Commission also 
exercised ancillary authority to extend section 225 telecommunications 
relay service obligations under the Commission's rules to providers of 
interconnected VoIP. More recently, a unanimous Commission stated its 
belief that disabilities should not stand in the way of Americans' 
``opportunity to benefit from the broadband communications era.'' The 
Commission has also announced its intent to consider how ``[t]o better 
enable Americans with disabilities to experience the benefits of 
broadband.'' We seek comment on the best legal approaches to extending 
disability-related protections to broadband Internet service users 
under the Commission's current information service classification. 
Could we exercise ancillary authority to ensure access for people with 
disabilities? Could the Commission rely on the mandate in section 
706(a) to ``encourage the deployment on a reasonable and timely basis 
of advanced telecommunications capability to all Americans,'' or the 
similar directive in section 706(b)?

Public Safety and Homeland Security

    41. As noted above, Congress created the Commission, in part, ``for 
the purpose of the national defense, [and] for the purpose of promoting 
safety of life and property through the use of wire and radio 
communications.'' Comcast did not address questions of national 
defense, public safety, homeland security, or national security. Are 
there bases for asserting ancillary authority over broadband Internet 
service providers for purposes of advancing such vital and clearly 
enumerated Congressional purposes? Could the Commission use its 
ancillary authority as a legal foundation for protecting cyber security 
and other public safety initiatives, such as 911 emergency and public 
warning and alerting services, with respect to broadband Internet 
service? Specifically, could the Commission rely on provisions in Title 
I either alone or in combination with provisions in Title II or Title 
III to support these public safety purposes, as well as data reporting 
and/or network reliability and resiliency standards with respect to 
broadband Internet services? As noted below, Title III contains several 
provisions that enable the Commission to impose on spectrum licensees 
obligations that are in the public interest. With the convergence of 
the various modes of communications networks, many broadband Internet 
services incorporate wireline and wireless elements. What would be the 
effect if the Commission employed its Title III authority to achieve 
public safety goals with respect to wireless elements of such converged 
services? Could the Commission also regulate wireline elements of such 
services through its Title III and Title I authority because of the 
wireless elements incorporated into these services, or in the interests 
of ensuring regulatory parity and predictability? Could the Commission 
rely on the mandate in section 706(a) to ``encourage the deployment on 
a reasonable and timely basis of advanced telecommunications capability 
to all Americans'' to ensure the security, reliability and resiliency 
of wired broadband Internet services, or to advance other public safety 
and homeland security initiatives?

Addressing Harmful Practices by Internet Service Providers

    42. Although the D.C. Circuit rejected the legal theory the 
Commission relied on to address Comcast's interference with its 
customers' peer-to-peer transmissions, some have suggested that other 
theories of ancillary authority could support Commission action to 
protect against harmful practices of this sort. For example, one 
commentator has proposed that the Commission assert ancillary authority 
pursuant to sections 251(a) and 256 of the Act, which address 
interconnection by telecommunications carriers. Although these 
provisions apply specifically to telecommunications carriers, the 
proposal asserts that they are not explicitly limited to the 
telecommunications services provided by such carriers.
    43. Section 251(a) requires each carrier ``to interconnect directly 
or indirectly with the facilities and equipment of other 
telecommunications carriers.'' Reading section 251(a) as limited to 
telecommunication services, it has been suggested, ``would make [the 
Commission's] rules promoting interconnection irrelevant'' as the major 
carriers move increasingly toward providing services over broadband 
Internet networks. Likewise, ``[i]n a world where traditional public 
telecommunications networks and newer Internet-data-transmission 
networks are pervasively interconnected,'' it has been asserted, ``it 
makes no sense to preclude the FCC's interoperability efforts [pursuant 
to section 256] from affecting information services.''
    44. We seek comment on this reasoning. What factual findings would 
the Commission have to make to support reliance on sections 251(a) and/
or 256 with respect to broadband Internet service? Would those facts 
support exercise of authority sufficient to implement the Commission's 
broadband policies in full, or in part? Under this approach, could the 
Commission address conduct by broadband Internet service providers that 
are not also telecommunications carriers? Does reliance on sections 
251(a) and 256 limit Commission authority to protect competition and 
consumers to only those networks that are interconnected with the 
public telephone network? If so, what are the practical implications of 
this limitation? What is the significance of the Comcast decision, 
which held that ``[t]he Commission's attempt to tether its assertion of 
ancillary authority to section 256'' was flawed in that context because 
section 256 states that ``[n]othing in this section shall be construed 
as expanding or limiting any authority that the Commission'' otherwise 
has under law? What else should the Commission consider as it evaluates 
the significance of sections 251(a) and 256 in this proceeding?
    45. Section 202(a) of the Communications Act makes it unlawful for 
any common carrier to make any unjust or unreasonable discrimination in 
charges, practices, classifications, regulations, facilities, or 
services for or in connection with like communication

[[Page 36079]]

service, directly or indirectly, by any means or device, or to make or 
give any undue or unreasonable preference or advantage to any 
particular person, class of persons, or locality, or to subject any 
particular person, class of persons, or locality to any undue or 
unreasonable prejudice or disadvantage.
    It has been suggested that ``[i]f network operators are allowed the 
option of offering broadband Internet access services on a completely 
unregulated basis, that option could enable them to end run Section 
202(a)'' as carriers move toward providing services over broadband 
Internet networks, ``and render that provision a dead letter.'' We seek 
comment on the factual and legal assumptions underlying this argument, 
and whether this reasoning provides the Commission authority to address 
practices of broadband Internet service providers that endanger 
competition or consumer welfare.
    46. As the Commission argued to the D.C. Circuit in the Comcast 
case, section 706(a) might also provide a basis for prohibiting harmful 
practices of Internet service providers. As noted above, the D.C. 
Circuit gave no weight to section 706(a) because the Commission had 
determined in a prior order that section 706(a) is not an independent 
grant of authority. We seek comment on the best reading of section 
706(a). We also seek comment on whether section 706(b) could provide a 
legal foundation for rules addressing harmful practices by Internet 
service providers. If so, could the Commission adopt such rules on a 
national basis, or would it have to tailor its rules to particular 
geographic areas? Would its rules depend on continued negative 
determinations in the annual broadband availability report?
    47. The Comcast opinion also rejected arguments that other 
provisions of Titles II, III, and VI of the Communications Act 
supported the Commission's action against Comcast because Internet-
enabled communications services that depend on broadband Internet 
service--such as VoIP and Internet video services--may affect the 
regulated operations of telephony common carriers, broadcasters, and 
cable operators. The court did not address the merits of these 
theories, but rather rejected them because they were not sufficiently 
articulated in the underlying Commission order. Could such theories 
provide sufficient support for the Commission to address harmful 
practices of Internet service providers? What type of factual record 
would be required to support such theories? If the Commission relied on 
these theories, could it prohibit behavior--such as the covert blocking 
of online gaming or e-commerce services, perhaps--that does not 
obviously affect services clearly addressed by Titles II, III, or VI? 
Could the Commission rely on sections 624 or 629 of the Act to 
establish broadband policy related to cable modem service?
    48. We also invite comment on whether the portions of section 
214(a) addressing discontinuance, reduction, and impairment of service 
provide a potential basis for an assertion of ancillary authority 
regarding harmful Internet service provider practices. That provision 
mandates that a common carrier may not ``impair service to a 
community'' without prior Commission approval. Impairment, in the 
section 214(a) context, refers to both ``the adequacy'' and ``quality'' 
of the service provided.
    49. Are there other statutory provisions that could support the 
Commission's exercise of ancillary authority in this area? Do any 
statutory provisions preclude such action if the Commission retains its 
information service classification?
    50. Other harmful practices by broadband Internet service providers 
may involve a failure to disclose practices to consumers. For instance, 
one problem identified by the Commission in the Comcast case was 
Comcast's failure to identify to customers its practice of degrading 
peer-to-peer traffic. If the Commission maintains its information 
services framework for broadband Internet services, will it have 
sufficient authority to address these concerns?

Other Approaches to Oversight

    51. Finally, we ask for public input on whether there are other 
approaches to fulfilling our role for broadband Internet services that 
would provide meaningful oversight consistent with maintaining robust 
incentives for innovation and investment. For instance, in a number of 
proceedings commenters have suggested that the Commission should pursue 
policies based on standards set by third parties and enforced by the 
Commission. In the Open Internet proceeding, Verizon and Google suggest 
that the Commission could create technical advisory groups ``comprised 
of a range of stakeholders with technical expertise'' to develop best 
practices, resolve disputes, issue advisory opinions, and coordinate 
with standards-setting bodies. Although Verizon and Google ``may not 
necessarily agree on which federal agency does or should have authority 
over these matters,'' they ``do recognize as a policy matter that there 
should be some backstop role for federal authorities to prevent harm to 
competition and consumers if or when bad actors emerge anywhere in the 
Internet space, and * * * agree that involvement should occur only 
where necessary on a case-by-case base basis.'' Commenters in other 
proceedings have suggested similar approaches. We ask commenters to 
address whether the Commission should pursue a regime in which