You are on page 1of 5


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

amended (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.


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


As Google and other leading technology companies have agreed, this approach “will

create a legally sound, light-touch regulatory framework that benefits consumers, technology

companies and broadband Internet access providers.” 3

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

together compel some limited oversight role for government. 6

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

affirmative, and without reservation.

Google has no interest in applying heavy-handed

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


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 impact.html; see also Economic Impact, available at

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”).


Comments of Google Inc.

GN Docket No. 10-127

ancillary authority – a doctrine of agency authority first recognized in a 1968 Supreme Court

decision 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 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

largest number of stakeholders. 11

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.”


Comments of Google Inc.

GN Docket No. 10-127

wireline telephone or wireless networks, and would be inconsistent with consensus deregulatory


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,

infrastr ucture and services. Respectfully submitted, Richard S. Whitt, Esq., Washington Telecom and Media

Richard S. Whitt, Esq., Washington Telecom and Media Counsel

Megan Anne Stull, Esq., Telecom Policy Counsel

GOOGLE INC. Public Policy Department 1101 New York Avenue NW Second Floor Washington, DC 20005

July 15, 2010

Donna N. Lampert Mark J. O’Connor E. Ashton Johnston Justin L. Faulb

LAMPERT, O’CONNOR & JOHNSTON, P.C. 1776 K Street NW, Suite 700 Washington, DC 20006 (202) 887-6230 tel (202) 887-6231 fax

Counsel for Google Inc.


Comments of Google Inc.

GN Docket No. 10-127

The Third Way Would Provide the Optimal Measure of Predictability and Stability For All Stakeholders


Title I

Full Title II

Third Way

FCC Action

Maintain current classification of broadband Internet service solely as an information service subject only to “ancillary” authority.

Classify the transmission component of broadband Internet service as a telecommunications service subject to all Title II provisions and the FCC’s implementing rules.

Classify the transmission component of broadband Internet service as a telecommunications service and forbear from applying all but a core subset of Title II provisions and FCC rules.

Regulatory Predictability

Uncertainty regarding FCC’s ability to adopt, apply and enforce rules in the wake of the Comcast decision provides minimal level of predictability.

Lack of guidance regarding forbearance could result in flood of petitions seeking forbearance from economic, structural, and entry/exit regulations that already have been largely abandoned, resulting in regulatory logjam.

Enumerating up front those provisions from which FCC would forbear would establish a clear regulatory roadmap going forward.

Legal Certainty

A case by case approach would be needed for each assertion of ancillary authority, with each case subject to independent appellate review, and no Chevron deference.

Classification without forbearance could lead to uncertainty regarding implementation.

There would be fewer FCC decisions, resulting in less appellate litigation. Classification and forbearance decisions would be entitled to Chevron deference, and are more likely to be upheld on appeal.


FCC has no statutory mechanism to enforce “ancillary” oversight authority.

FCC, consumers and competitors would have statutory mechanism to remedy violations, pursuant to Sections 206209 of the Act.

FCC should not forbear from Section 208 or related statutory provisions, which are necessary to effectuate FCC oversight.

Consumer Protection

Without enforcement authority, there is no effective mechanism to protect consumers and competition.

Full Title II regulation provides consumers all statutory protections, but the range of applicable provisions and FCC rules would be unnecessarily broad.

Sections 201 and 202, and statutory enforcement/ remedy provisions are core consumer protections and should be preserved. FCC and service providers have ample experience with these provisions.

National Broadband Plan Implementation

Attempts to assert jurisdiction to implement NBP goals would require case by case review, resulting in “complete unpredictability” (Commissioner Clyburn).

Full Title II goes beyond what is necessary to achieve FCC and NBP objectives.

A stable legal structure grounded in statute will best promote NBP goals, including universal service.