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In the Matter of )
)
Framework for Broadband Internet Service ) GN Docket No. 10-127
)
Google Inc. (“Google”) hereby responds to the Notice of Inquiry (“NOI”)1 seeking
comment on the appropriate legal framework for the Federal Communications Commission
(“Commission” or “FCC”) to fulfill its obligations under the Communications Act of 1934, as
In the NOI, the Commission seeks to identify the optimal legal and regulatory framework
to ensure adequate government oversight over broadband networks and services. Google
believes that, on balance, the most appropriate course is the suggested “Third Way.” Such a
tailored approach would subject only the transmission component of broadband Internet service
to a small but critical subset of the provisions of the Communications Act. This approach also
would clarify that Internet-based content, applications, and services remain unregulated by the
FCC. As Google and other leading technology companies have agreed, this approach “will
create a legally sound, light-touch regulatory framework that benefits consumers, technology
1
In the Matter of Framework for Broadband Internet Service, GN Dkt. 10-127, Notice of Inquiry, FCC
10-114 (June 17, 2010) (“NOI”).
2
Google is a member of the Open Internet Coalition (“OIC”), and joins in those comments as well.
3
See Letter from the Open Internet Coalition to Julius Genachowski, Chairman, FCC, GN Dkt. 09-51
(filed May 6, 2010).
Comments of Google Inc. GN Docket No. 10-127
Broadband is critical to our nation’s future, and there is an overwhelming consensus that
the goals of the FCC’s National Broadband Plan – to promote deployment, adoption, usage,
competition, and innovation – will provide a solid foundation to meet a broad range of
challenges, including economic, social, and civic concerns.4 At the same time, broadband
networks have a unique role as essential and scarce resources, deployed by relatively few
providers, and utilizing valuable government-granted rights and advantages.5 These factors
The NOI asks whether the Commission’s “ancillary authority continues to provide an
adequate legal foundation.”7 Six months ago, Google would have answered that question in the
regulation to broadband networks; indeed, given the healthy symbiotic relationship that exists
today between providers of Internet applications and content, and providers of broadband access,
Google and many others certainly benefit when broadband companies invest in their access
networks. But the Comcast decision8 has re-opened fundamental questions about the FCC’s
jurisdiction over broadband Internet services. Welcome or not, the Comcast decision means that
4
As just one example, the economic impact of Google’s core search and advertising business,
conservatively estimated at $54 billion throughout the U.S. for 2009, exemplifies the beneficial
“spillover” effects, including investment incentives, of broadband networks. See Google’s Economic
Impact, May 25, 2010, available at http://googleblog.blogspot.com/2010/05/googles-us-economic-
impact.html; see also Economic Impact, available at http://www.google.com/economicimpact/.
5
In particular, facilities-based broadband providers have the unmatched technical ability to control
activities at all layers of the broadband network, with the distinct power to carry, inspect, and manipulate
“Other People’s Packets,” and to ration both online traffic and broadband capacity. See Comments of
Google Inc., GN Dkt. 09-191, at 24-26 (filed Jan. 14, 2010).
6
If the FCC declines to move forward expeditiously, the U.S. Federal Trade Commission appears to be
well-positioned to provide the necessary government oversight and enforcement functions.
7
NOI ¶ 30.
8
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) (“Comcast”).
2
Comments of Google Inc. GN Docket No. 10-127
ancillary authority – a doctrine of agency authority first recognized in a 1968 Supreme Court
In light of the Comcast decision, Google believes the Third Way framework described in
the NOI – which would apply only in a limited manner to only the transmission component of
broadband Internet service – presents the most predictable, effective, and tailored approach of
those under consideration. This framework will allow the Commission to continue its light-
touch approach to broadband oversight, which appropriately will leave most elements of
broadband service, along with the broad range of Internet content, applications, and other
services, free from regulation under the Communications Act. In particular, the Third Way will
promote legal certainty and regulatory predictability to spur investment, ensure that the
Commission can fulfill the tremendous promise of the National Broadband Plan, and make it
possible for the Commission to protect and serve all broadband users, including through
meaningful enforcement. By using targeted forbearance, the Third Way essentially will allow
the Commission to restore the prior status quo by establishing a solid legal foundation to
stimulate investment throughout the Internet space, thereby providing the greatest benefits to the
As noted above, we disagree with the view that the Commission should go farther than
the limited scope of its Third Way proposal. Indeed, subjecting broadband Internet service to the
full scope of Title II would result in regulation far greater than existing FCC oversight of
9
United States v. Sw. Cable Co., 392 U.S. 157 (1968).
10
Attempts to maintain broadband Internet service’s current classification as only an information service,
subject solely to “ancillary” authority under Title I, certainly would face a high legal hurdle. To this
point, no legal theories reliant on Title I have been advanced that would provide the FCC with sufficient
and predictable authority to carry out its legitimate duties, while also surviving judicial scrutiny. While
not optimistic on that score, Google remains open to considering any such theories.
11
See attached summary chart, “The Third Way Would Provide the Optimal Measure of Predictability
and Stability for All Stakeholders.”
3
Comments of Google Inc. GN Docket No. 10-127
wireline telephone or wireless networks, and would be inconsistent with consensus deregulatory
goals. We also believe that going beyond the Third Way effectively would eliminate any
benefits gained from light-touch regulation, and instead could create detrimental impacts to
broadband access networks, as well as the individuals and entities that rely on them.
For these reasons, the Commission should adopt the Third Way and re-establish the legal
foundations for its light-touch, pro-consumer oversight of broadband infrastructure and services.
Respectfully submitted,
4
Comments of Google Inc. GN Docket No. 10-127
The Third Way Would Provide the Optimal Measure of Predictability and Stability
For All Stakeholders