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Testimony to FCC Commissioner Anna Gomez Regarding “Safeguarding and Securing the Open Internet”


Introduction. 1

Net Neutrality 1

Investment Effects 2

Forbearance 2


Thank you for inviting and hosting us today. My name is Joe Kane. I’m the director of broadband and spectrum policy at the Information Technology and Innovation Foundation.

We are a nonpartisan think thank interested in public policies that accelerate innovation and boost productivity because they benefit consumers.

We believe broadband and access to a free and open Internet are essential to modern American life. There is no more important broadband policy goal than realizing the benefits of connectivity for all Americans.

The draft item’s decision to reclassify broadband as a Title II service is counterproductive to those values, and an FCC that prioritizes connectivity and the public interest would not adopt it.

Net Neutrality

There is no greater red herring in this proceeding than the claim that Title II is necessary to protect the free and open Internet or net neutrality. History belies this talking point. We had a free and open Internet prior to the 2015 Order, and we’ve had one since 2018. At both of those prior points, the Commission was inundated with claims that no Title II for the Internet meant disaster. Even if that prophetic frenzy were believable at the time, history has decisively disproven it.

The most telling example of this is the performance of American broadband networks during the pandemic. If Title II were necessary, we should have seen the Internet falter under the weight of millions of Americans shifting to remote work and online learning. But American broadband networks held up remarkably well. Despite an unprecedented surge in data, providers adapted, investing billions of dollars to upgrade their infrastructure and increase capacity.

While ITIF and many others implored the Commission not to abandon what worked so well in the face of such an unprecedented challenge, the Commission’s draft item simply dismisses that idea as  “unpersuasive” and states “it is imperative for the commission to have the authority to address resiliency issues involving broadband networks to the same degree that it has for traditional voice networks.” But resiliency issues are precisely what U.S. broadband did not have without Title II. Rather than trying to reshape the broadband ecosystem in the image of “traditional voice” networks, the Commission should build on the success of a non-Title II framework.

Investment Effects

The most important factor in the resilience of U.S. broadband service is the continued investment in expansion and upgrades by private network operators. Nevertheless, the draft item dismisses the record evidence that even the threat of Title II depresses broadband investment while taking cover in ambiguity in other studies. We believe that the Phoenix Center studies, for example, are the best evidence in the record on the question of investment effects because they account for the counterfactual question: what would investment have been without the threat of Title II? The draft item says that this study is not even probative of investment effects because the sectors in its synthetic control group do not exactly parallel telecommunications. This analysis appears to be an isolated demand for rigor, not recognizing that the inclusion of multiple sectors can iron out industry-specific trends and that estimations can be useful even when they are not exact. But even if the Commission is committed to ignore that study, it should not take the dramatic step of Title II without affirmative evidence that it will enhance broadband investment. Otherwise, it is gambling with the engine of consumer broadband benefits.


The threats to consumers’ access to continuously expanding and improving broadband networks is supposedly tempered in the item by forbearance from the most harmful portions of Title II.

While we welcome the Commission’s recognition that Title II as a whole is wrong for the Internet, a Title II classification with only discretionary forbearance would have significant negative effects.

In particular, the prevalence of “case-by-case” review in the draft item would create a chilling effect for pro-consumer innovations. We saw this the last time around with the Commission’s lengthy review of zero rating which showed that even if the Commission doesn’t ban a pro-consumer practice, ‘regulation by raised eyebrow’ is enough to make new competitors think twice before rolling out a new service.

The current draft item takes a similar approach to network slicing. The Commission is right that such a nascent technology should not be banned, but the promise that the FCC will “closely monitor” these network management practices amounts to a sword of Damocles. Rather than assuming every new network management technique is suspect, the Commission should make clear that innovation is allowed so that consumers can benefit from it as widely as possible.

Look, I don’t trust my ISP. I don’t doubt that someone somewhere might use a new technology in a way that’s inconsistent with consumer welfare. And I might even trust this FCC apply its case-by-case review reasonably. But I don’t necessarily trust the next FCC or the one after that. And this Commission shouldn’t either. While the lost innovation of a “mother-may-I” approach is less visible than rare and isolated anti-consumer practices, it is no less real. As an expert agency convinced of the necessity of broadband connectivity, the Commission should be encouraging new technological developments, not sacrificing their benefits by casting doubt on them in the cradle.

A similar issue to mere discretionary forbearance is the Commission's granting of blanket section 214 authorization while simultaneously reserving the right to conduct ad hoc review of those authorizations at any time. Once again, the Commission at once claims to remove the sting of Title II’s micromanagement provisions while making clear that it does so only at its pleasure. These kinds of moves, at best, increase uncertainty, which will have its own depressive effect on the broadband services consumers need.

Broadband is essential. The free and open Internet is essential. Both of those goals have been well served without Title II. Absent legislation, the Commission should maintain, not dismantle the framework that has and continues to benefit consumers.

Thank you.

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