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07-15-10 Google Comments on Framework for Broadband Internet Service NOI FINAL

07-15-10 Google Comments on Framework for Broadband Internet Service NOI FINAL

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10/25/2012

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BEFORE THEFEDERAL COMMUNICATIONS COMMISSIONWASHINGTON, DC 20554
In the Matter of ))Framework for Broadband Internet Service ) GN Docket No. 10-127)
COMMENTS OF GOOGLE INC.
Google Inc. (“Google”) hereby responds to the Notice of Inquiry (“NOI”)
1
seekingcomment on the appropriate legal framework for the Federal Communications Commission(“Commission” or “FCC”) to fulfill its obligations under the Communications Act of 1934, asamended (the “Act”), with respect to broadband Internet service.
2
 In the NOI, the Commission seeks to identify the optimal legal and regulatory framework to ensure adequate government oversight over broadband networks and services. Googlebelieves that, on balance, the most appropriate course is the suggested “Third Way.” Such atailored approach would subject only the transmission component of broadband Internet serviceto a small but critical subset of the provisions of the Communications Act. This approach alsowould clarify that Internet-based content, applications, and services remain unregulated by theFCC. As Google and other leading technology companies have agreed, this approach “willcreate a legally sound, light-touch regulatory framework that benefits consumers, technologycompanies and broadband Internet access providers.”
3
 
1
 
 In the Matter of Framework for Broadband Internet Service
, GN Dkt. 10-127, Notice of Inquiry, FCC10-114 (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 
2Broadband is critical to our nation’s future, and there is an overwhelming consensus thatthe 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, broadbandnetworks have a unique role as essential and scarce resources, deployed by relatively fewproviders, and utilizing valuable government-granted rights and advantages.
5
These factorstogether compel some limited oversight role for government.
6
 The NOI asks whether the Commission’s “ancillary authority continues to provide anadequate legal foundation.”
7
Six months ago, Google would have answered that question in theaffirmative, and without reservation. Google has no interest in applying heavy-handedregulation to broadband networks; indeed, given the healthy symbiotic relationship that existstoday between providers of Internet applications and content, and providers of broadband access,Google and many others certainly benefit when broadband companies invest in their accessnetworks. But the
Comcast 
decision
8
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 controlactivities 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 bewell-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 
”).
 
 
Comments of Google Inc. GN Docket No. 10-127 
3ancillary authority – a doctrine of agency authority first recognized in a 1968 Supreme Courtdecision
9
– is not a reliable tool for FCC oversight going forward.
10
 In light of the
Comcast 
decision, Google believes the Third Way framework described inthe 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 otherservices, free from regulation under the Communications Act. In particular, the Third Way willpromote legal certainty and regulatory predictability to spur investment, ensure that theCommission can fulfill the tremendous promise of the
 National Broadband Plan
, and make itpossible for the Commission to protect and serve all broadband users, including throughmeaningful enforcement. By using targeted forbearance, the Third Way essentially will allowthe Commission to restore the prior
status quo
by establishing a solid legal foundation tostimulate investment throughout the Internet space, thereby providing the greatest benefits to thelargest number of stakeholders.
11
 As noted above, we disagree with the view that the Commission should go farther thanthe limited scope of its Third Way proposal. Indeed, subjecting broadband Internet service to thefull 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 thispoint, no legal theories reliant on Title I have been advanced that would provide the FCC with sufficientand predictable authority to carry out its legitimate duties, while also surviving judicial scrutiny. Whilenot 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 Predictabilityand Stability for All Stakeholders.”
 

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