Re: Preserving the Open Intel11et, ON Docket No. 09-191

~at&t
Julius Oenachowski, Chairman
Federal Communications Commission
445 12'h Street, SW
Washington, DC 20554
James W. Clcconl
Senior executIve vice President
External and Leglslotlve Affairs
December 15, 2009
AT&T Services. Inc.
1120 Twentieth Street, NW
Suite 1000
Washington, DC 20036
T: 202.451.2233
F: 202.457.2244
James.clcconl@att.com
www.att.com
Re: Preserving the Open Intel11et, ON Docket No. 09-191
Dear Chairman Genachowski:
Your speech earlier this month at the Innovation Economy Conference, titled "Innovation
in a Broadband World," neatly summarized the last 25 years oflnternet innovationtechnological,
business and social- that has transformed the world economy. You correctly
highlighted that the United States has been at the forefront of innovation but that we face several
challenges arowld broadband infrastructure deployment and adoption that the communications
industry and govel11ment policymakers must work together collectively to solve. At AT&T, we
are committed to working with the President, the Congress and the Commission to achieve the
goal of ubiquitous, affordable broadband as set forth in your speech. We also understand that
this proceeding, Preserving the Open lntemet, is a key part of your plan to achieve those goals.
As the "net neutrality" debate has evolved over the past several years, there are three
points on which all parties seem to agree. First and foremost, consumers must remain at the
center of every discussion we have on Intemet policy. Second, preserving the open character of
the Internet is critically important to ensuring that all consumers have the opportunity to be
creators of content and innovators from their homes or their garages. Finally, and most
fundamentally to AT&T, government policy must preserve and expand incentives that drive the
substantial private investment necessary so that the promise of the Intel11et is fully realized and
maximally available. Any Internet policy shonld balance these three objectives.
The Commission has adopted a notice of proposed rulemaking to examine whether and
how to formalize and expand its Internet principles to include, among other things, the concept
of nondiscrimination. While we believe that the current policy framework for the wireline
broadband Internet set forth in the Internet Policy Statement achieves the balance identified
above, we support the Commission's efforts to engage in a productive discussion on these
important issues. In that spirit, AT&T believes that, should the Commission choose to move
forward on the issue of nondiscrimination, some recent proposals provide a constructive
framework for that discussion. On October 22,2009, Senator Olympia Snowe submitted a letter
on the topic of"net neutrality." Senator Snowe identified a set of objectives for federal policy in
this area: maintaining Internet "openness and freedom" for all Americans while at the same time
ensuring that regulations do not undennine our efforts to deploy affordable, ubiquitous
broadband or inappropriately infringe on the "flexibility for network operators to effectively
manage their networks in order to ensure quality of service to all customers." In Senator
Snowe's words, the Commission should be seeking to safeguard both consumers and application
developers from "tmreasonable and anticompetitive discrimination that would adversely affect
Internet users' experience 01' choice." Although we believe that specific, prescriptive regulatory
requirements are not needed to accomplish this objective - palticularly in the robustly
competitive wireless broadband envirolUnent where there are a multitude of complex network
management challenges - we agree with Senator Snowe that any policy promoted here by the
Commission that seeks to achieve "non-discrimination" should, at a minimum, be flexible
enough to acconUllodate the types ofvoltmtary business agreements that have been permitted for
75 years under Section 202 of the Conununications Act of 1934 which forbade "unjust or
unreasonable discrimination."
In addition to Senator Snowe's letter, on October 21, Verizon Wireless and Google
jointly issued a blogpost, titled "Finding Common Ground on an Open Internet," by Lowell
McAdam, CEO of Verizon Wireless and Eric Schmidt, CEO of Google. Those companies
agreed that an open Internet is crucial for consumer choice while recognizing that "broadband
network providers should have the flexibility to manage their networks to deal with issues like
traffic congestion, spam, 'malware' and denial of service attacks, as well as other threats that
may emerge in the future - so long as they do it reasonably, consistent with their customers'
preferences, and don't unreasonably discriminate in ways that either harm users or are anticompetitive."
Consistent with Senator Snowe's observations, Verizon Wireless and Google also
both recognized the importance of private investment for "increasing broadband capacity and the
intelligence of networks," thereby "creating the infrastructure to support ever more soph.isticated
applications."
As discussed, AT&T supports Commission efforts to achieve these same objectives. If
the Commission ultimately goes beyond the status quo in this proceeding, it should carefully
consider the framework proposed by Senator Snowe, and echoed, in our view, by Verizon
Wireless and Google, which eschews a strict nondiscrimination standard and instead focuses on
"unreasonable and anticompetitive" fonns of discrimination that adversely affect consumers. By
focusing on unreasonable and anticompetitive discrimination, the Commission can enable
innovation to occur at all levels of the Internet but still maintain the ability to respond on a caseby-
case basis to allegations of unreasonable and anticompetitive conduct that materially harms
conswners. By contrast, a strict nondiscrimination standard could inadvertently linUt the
availability of creative and ilUlovative services that conSlUners may want to purchase. Worse
still, a strict nondiscrimination rule would completely ban voluntary commercial agreements for
the paid provision of certain value-added broadband services which would needlessly deprive
market participants, including content providers, from willingly obtaining services that could
improve consumers' Internet experiences. Thus, such a ban could hann innovation and
potentially delay critical infrastructure investment by prohibiting services that prove to be neither
anti-consumer nor anti-competitive. While some oftllese services may in the end be classified as
"managed services" that are not subject to the proposed rules, we believe there should be no
regulatory uncertainty when it comes to innovation and that Senator Snowe's framework would
help ensure that result.
In addition, consistent with Senator Snowe's emphasis on performing "the essential due
diligence in collecting the necessary infonnation to develop sound public policy" in this area,
AT&T applauds the Commission's proposal to establish a "Technical Advisory Process." The
Internet ecosystem has long enjoyed a robustly interactive and collaborative process for the
examination and resolution of engineering questions and concerns. With the right process in
place, such issues can be identified and discussed among experts before they ever require
attention from policymakers. Indeed, it is conceivable tbat had such a process been in place, the
Comcast-BitTorrent dispute might have been avoided entirely.
Such a process is far more likely to succeed ifit results in all Internet players having a
better understanding of each other's concerns and interests. Ultimately, the process may require
the creation of multiple "interconnected" bodies to address various sets of issues. A Conunission
advisory group could foment such private sector linkages by initiating these discussions. Such a
group could be a source of expert advice for the Commission on complex technical issues. II
could also provide a venue for airing concerns and seeking consensus, without the need for
regulatory intervention. Finally, it could lead to the creation of other collaborative efforts
between and among the participants.
We believe that all stakeholders will benefit from the Technical Advisory Process if, as
proposed, the Commission obtains "the best technical information from a broad range of
engineers" based on "sound engineering principles and not on politics." To ensure that it
receives the "best technical information," we encourage the Commission to include in the
advisory process Chief Technology Officers and other similarly qualified individuals tlmt have
practical experience in dealing with the myriad network management challenges facing the
broadband industry today and in the future.
• • •
We welcome the opp0l1unity to work with the Commission in shaping a wireline Internet
policy and Technical Advisory Process that furthers these goals, and we are grateful to Senator
Snowe for illuminating a framework for further discussion.
Sincerely,
cc: Commissioner Michael J. Copps
Commissioner Robert M. McDowell
Commissioner Mignon Clyburn
Commissioner Meredith AttweU Baker