FURTHER INQUIRY INTO TWO UNDER-DEVELOPED ISSUES IN THE OPEN INTERNET PROCEEDING

In order to promote innovation, investment, competition, and free expression, and to protect and
empower consumers, in late 2009 the Commission issued a Notice of Proposed Rulemaking in the Matter
of Preserving the Open Internet (NPRM). The NPRM seeks public comment on rules that would codify
the Internet Policy Statement’s four principles and strengthen them by prohibiting broadband Internet
access providers from treating lawful traffic in a discriminatory manner, and by requiring providers to be
transparent regarding their network management practices.1 The discussion generated by the
Commission’s Open Internet proceeding appears to have narrowed disagreement on many of the key
elements of the framework proposed in the NPRM: First, that broadband providers should not prevent
users from sending and receiving the lawful content of their choice, using the lawful applications and
services of their choice, and connecting the nonharmful devices of their choice to the network, at least on
fixed or wireline broadband platforms.2 Second, that broadband providers should be transparent
regarding their network management practices.3 Third, that with respect to the handling of lawful traffic,
some form of anti-discrimination protection is appropriate, at least on fixed or wireline broadband
platforms.4 Fourth, that broadband providers must be able to reasonably manage their networks,
including through appropriate and tailored mechanisms that reduce the effects of congestion or address
traffic that is unwanted by users or harmful to the network.5 Fifth, that in light of rapid technological and
market change, enforcing high-level rules of the road through case-by-case adjudication, informed by
1 Preserving the Open Internet; Broadband Industry Practices, GN Docket No. 09-191, WC Docket No. 07-52,
Notice of Proposed Rulemaking, 24 FCC Rcd 13064 (2009) (Open Internet NPRM); see also Appropriate
Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-
20, 98-10, GN Docket No. 00-185, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005) (Internet
Policy Statement).
2 See, e.g., AT&T Comments at 1-2; Comcast Comments at ii; Qwest Reply Comments at 5; Communications
Workers of America Comments at 12.
3 See, e.g., Cablevision Reply Comments at 15; Comcast Reply Comments at ii; Verizon Reply Comments at 18.
4 See, e.g., Verizon & Google, Verizon-Google Legislative Framework Proposal, at 1, available at
http://www.google.com/googleblogs/pdfs/verizon_google_legislative_framework_proposal_081010.pdf;
Communications Workers of America Comments at 14-21.
5 See, e.g., Free Press Reply Comments at 10.
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engineering expertise, is a better policy approach than promulgating detailed, prescriptive rules that may
have consequences that are difficult to foresee.6
There are two complex issues, however, that merit further inquiry. The first is the relationship
between open Internet protections and services that are provided over the same last-mile facilities as
broadband Internet access service (commonly called “managed” or “specialized” services). The second is
the application of open Internet rules to mobile wireless Internet access services, which have unique
characteristics related to technology, associated application and device markets, and consumer usage.
The NPRM raised both of these issues but addressed them in less detail than many other issues, and the
Commission’s analysis would benefit from further development of these issues in the record. We
therefore find it appropriate to further inquire into these areas.
I. SPECIALIZED SERVICES7
In the NPRM, the Commission recognized that broadband providers may provide other services
over the same last-mile facilities used to provide broadband Internet access service.8 These services may
drive additional private investment in networks and provide consumers new and valued services.9
However, there appear to be three general areas of concern about how to maintain the investmentpromoting
benefits of specialized services while protecting the Internet’s openness:
(1) Bypassing Open Internet Protections: Open Internet protections may be weakened if
broadband providers offer specialized services that are substantially similar to, but do not
technically meet the definition of, broadband Internet access service, and if consumer
protections do not apply to such services. A similar concern may arise if specialized services
are integrated into broadband Internet access service; for example, if a broadband provider
offers broadband Internet access service bundled with a “specialized service” that provides
prioritized access to a particular website.10
(2) Supplanting the Open Internet: Broadband providers may constrict or fail to continue
expanding the network capacity allocated to broadband Internet access service in order to
provide more capacity for specialized services. If this occurs, and particularly if one or more
specialized services serve as substitutes for the delivery of content, applications, and services
over broadband Internet access service, the open Internet may wither as an open platform for
competition, innovation, and free expression.11
6 See, e.g., Public Interest Commenters (PIC) Comments at Appendix B; Center for Democracy and Technology
(CDT) Comments at 38.
7 The NPRM used the term “managed or specialized services” to describe the services that we here call “specialized
services.” We avoid the term “managed services” to prevent confusion with services that have long been provided
by communications service providers to enterprise customers, which may include managing computing and
communications facilities on behalf of such customers. See, e.g., CDT Comments at 47; Akamai Reply Comments
at 11; Wikipedia, Managed services, http://en.wikipedia.org/wiki/Managed_services.
8 Open Internet NPRM, 24 FCC Rcd at 13116-17, paras. 148-53.
9 See, e.g., Verizon Comments at 8; Comcast Comments at 60-61, 64-66; American Cable Ass’n Comments at 17-
18; Clearwire Comments at 13-14; OPASTCO Comments at 11, 13; PAETEC Comments at 31; Bright House
Comments at 13-14; Covad Comments at 9-10; Motorola Comments at 14-16; Sprint Nextel Reply Comments at 2.
10 See, e.g., Netflix Comments at 9-10; CDT Comments at 46-48; Vonage Comments at 27; Google Comments at
75; Free Press Comments at 111; Dish Network Reply Comments at 12; XO Communications Reply Comments at
20-21.
11 See, e.g., CDT Comments at 46-49; Independent Film & Television Alliance (IFTA) Comments at 18-19; Google
Comments at 76; Sony Electronics Reply Comments at 6-7.
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(3) Anti-competitive Conduct: Broadband providers may have the ability and incentive to engage
in anti-competitive conduct with respect to specialized services, particularly if they are
vertically integrated providers of content, applications, or services; or if they enter into
business arrangements with third-party content, application, or service providers concerning
specialized service offerings. Such discriminatory conduct could harm competition among,
and private investment in, content, application, and service providers.12
These concerns, particularly the second and third, may be exacerbated by worries that due to limited
choice among broadband Internet access service providers, consumers may not be able to effectively
exercise their preferences for broadband Internet access service (or content, applications, or services
available through broadband Internet access service) over specialized services.13
There appear to be at least six general policy approaches to addressing these concerns while
promoting private investment and encouraging the development and deployment of new services that
benefit consumers. These approaches could be employed alone or in combination:
(A) Definitional Clarity: Define broadband Internet access service clearly and perhaps broadly,
and apply open Internet rules to all forms of broadband Internet access service.14 Specialized
services would be those services with a different scope or purpose than broadband Internet
access service (i.e., which do not meet the definition of broadband Internet access service),
and would not be subject to the rules applicable to broadband Internet access service. But
such services could be addressed through one or more of the below policy approaches, or,
alternatively, the Commission could address the policy implications of such services if and
when such services are further developed in the market.15
(B) Truth in Advertising: Prohibit broadband providers from marketing specialized services as
broadband Internet access service or as a substitute for such service, and require providers to
offer broadband Internet access service as a stand-alone service, separate from specialized
services, in addition to any bundled offerings.16
(C) Disclosure: Require providers to disclose information sufficient to enable consumers, third
parties, and the Commission to evaluate and report on specialized services, including their
effects on the capacity of and the markets for broadband Internet access service and Internetbased
content, applications, and services.17 The Commission or Congress could then take
action if necessary.

http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db0901/DA-10-1667A1.pdf