Majority Statement

• Chairman John D. (Jay) Rockefeller IV

  U.S. Senate Committee on Commerce, Science & Transportation
  Read statement

  Majority Statement

  Chairman John D. (Jay) Rockefeller IV

  WASHINGTON, D.C.—Broadband is more than a technology—it is a platform for social and economic opportunity. With broadband networks we can change the way we approach job creation, education, health care, and entertainment. We can change the way we connect with our communities—and the world.

  That’s why last year I fought to make sure the American Recovery and Reinvestment Act included programs designed to bring broadband to everyone in this country—no matter who they are, no matter where they live.

  The Recovery Act included two major initiatives:

  • A grant program to spur the adoption and deployment of broadband; and
  • A broadband plan for the nation, developed by the FCC.

  It’s the broadband plan that we are here to discuss today. The FCC released the National Broadband Plan last month. And like many of my colleagues, I joined the chorus singing praise for this effort. I think the document is a great start, but I also have some concerns.

  Back in October, when we held a hearing to discuss the broadband grant programs, I spoke about the prospects for the broadband plan. I said I wanted to see concrete action on the day the plan is delivered. Because I believe we need real broadband solutions for real people. And we need them now. A mere menu of options for the FCC and the Congress with far off timeframes is not good enough. I believed that in October, and I believe it now.

  The report has over 200 recommendations. But it takes no action. It is long on vision, but short on tactics. So I am going to challenge the FCC. I am going to challenge the FCC to make the hard choices that will help bring broadband to every corner of this country. Putting ideas on paper is not enough. Just seeking comment on a slew of issues is not enough. It’s action that counts.

  Let me tell you why. In West Virginia, one in five households lack access to broadband service. As this plan notes, only 71 percent of the state’s population has access to 3G wireless service. Every day that goes by, communities without broadband in West Virginia and every other state risk falling further behind.

  In this new century, universal broadband service is the promise of a fair shot at economic opportunity. It is the promise of educational equality and affordable health care. And it opens the door, to participate in our democratic dialogue with dignity, no matter who you are or where you live.

  Before I conclude my remarks, let me take a minute to mention last week’s decision by the Court of Appeals for the District of Columbia. No doubt, this ruling adds to the complexities of the FCC’s task, but for me, two things are clear.

  First, in the near-term, I want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the broadband plan. Second, in the long-term, if there is a need to rewrite the law to provide consumers, the FCC, and industry with a new framework, I will take that task on.

  In closing, I appreciate the challenges before the FCC. And I look forward to the Chairman’s testimony about how we will move ahead—together—and bring the wonders of broadband to every community in this country.

  ###

Minority Statement

• Senator Kay Bailey Hutchison

  U.S. Senate Commerce, Science, and Transportation Committee
  Read statement

  Minority Statement

  Senator Kay Bailey Hutchison

  Statement by Senator Kay Bailey Hutchison

  Reviewing the National Broadband Plan
  April 14, 2010

   Mr. Chairman, thank you for holding this important and timely hearing on the Federal Communications Commission’s recently completed National Broadband Plan.  In light of the decision by the US Court of Appeals for the DC Circuit last week, I would have preferred to have all five of the FCC Commissioners appear before us, but I do welcome Chairman Genachowski back today.

  Positive aspects of the broadband plan:

  At the outset, let me complement the Chairman, his staff, and the dozens of volunteers that worked for a year to conduct hearings, seek robust public input, and to analyze an extraordinary amount of information.

  We will likely spend time today discussing the court’s decision, its impact on the broadband plan, and the idea of network neutrality regulations.  But, before turning to those matters, I want to note that there are a number of positive provisions in the plan that we can work together on in a bipartisan way, here and at the Commission.

  For example, the Commission has made a series of recommendations to reform the Universal Service Fund that provides support for low income Americans to access telecommunication capabilities and provides support to lower the cost of building infrastructure in rural areas.  Without reform, the program is not sustainable in this emerging communications environment.

  I am also pleased that the Commission focuses heavily on making sure that anchor institutions in our communities like schools, universities, hospitals, and libraries have access to very robust broadband services.

  Some points of concern with the broadband plan:

  However, I also have concerns with some of the plans recommendations.

  While I commend the Commission for focusing on the need that we have to identify additional spectrum, I have concerns with the Commission’s focus on spectrum used by broadcasters to provide free over-the-air television to millions of households.

  We just completed the digital television transition where some spectrum was already reclaimed from broadcasters.  Although the immediate focus of the Commission will be on “voluntary” give backs of spectrum by broadcasters, the agency has reserved the right to move to “involuntary” measures.  This is extraordinarily disturbing, and I will be monitoring the Commission’s activities in this area very closely.

  Further, I am disappointed that the plan does not offer ideas to encourage direct private investment in new infrastructure in unserved areas.

  Last year I introduced the Connecting America Act, which would provide investment tax credits to providers that undertake investment in unserved areas or that make substantial commitments to upgrade their existing networks, regardless of the technology they use.  My bill would also provide a review of the large number of federal programs that support broadband to determine if we can streamline them and make the money work more effectively, or provide a single application point.

  I hope that Chairman Genachowski and his team will take another look at ways to stimulate direct private investment in our unserved areas.  It is clear that we do not have the public funds to tackle this problem.

  The really big concerns with the plan and the FCC’s growing regulatory posture:

  While I have some concerns about the plan itself, I am much more concerned by the aggressive regulatory posture being conveyed by the Commission.

  Investment began to truly flourish in broadband technology when the Commission made a decision in 2002 to remove advanced communications technologies from the suffocating embrace of common carrier regulation, a nineteenth century way of looking at and regulating commercial activities.  In the years that followed, companies invested tens of billions of dollars in infrastructure and we witnessed a continuing convergence between technologies and more choices for consumers.

  Starting just a few years after the FCC adopted this light touch regulatory approach, however, we began to hear calls for a larger regulatory footprint that restricts how private companies that build and maintain the core communications networks manage their facilities.  We first heard of “net neutrality” back in 2006, when the issue arose during this committee’s last effort at comprehensive reform.

  We rejected calls to intervene into the Internet arena then, and have consistently decided not to pass legislation.  Yet, the calls to regulate this technology area persist!  In 2007, those calls resulted in a decision by the FCC to cite Comcast for a violation of the agency’s open Internet principles, the first sign that the Commission would actively seek to impose restrictions on how companies manage their networks. 

  While Comcast challenged the Commission’s authority to regulate broadband in court, Chairman Genachowski started a rulemaking to adopt the open Internet principles set down five years ago as rules.  I cautioned him last Fall that the case for regulation has not been made, and new rules will likely result in uncertainty and threaten investment.

  Mr. Chairman, that’s the history of the “net neutrality” discussion, which has renewed focus because last week by the Court of Appeals for the DC Circuit ruled against the Commission and held that the authority cited by the FCC to justify its holding against Comcast was not sufficient to justify the Commission’s actions in that case.

  In the wake of the court’s decision, the regulatory chorus has grown louder still.  Claims have been made that the court decision leaves consumers without protections and the agency with no authority to implement the national broadband plan, or to promote an open Internet.

  The remedy suggested by a number of parties is to risk the vitality of the broadband market by reemploying the outdated common carrier regulatory framework that the Commission reasoned just eight years ago would stifle the evolution of the Internet.

  This rather remarkable suggestion served as a reminder that throughout the entire net neutrality debate the two most important things, reason and facts, have been in short supply.  If we are going to have a discussion going forward about the proper framework for oversight of the broadband market, both must guide our way.

  I begin with the view that the Internet as an open platform for innovation is a reality, not an aspiration.  Companies that did not exist 10 years ago have emerged as titans of industry based almost entirely on the Internet as a means to reach consumers.

  The argument that we need to promote an open Internet seems to both presume openness is threatened and that existing authorities and protections are unable to address that threat.  Neither appears to be objectively true, and regulators have failed to demonstrate that there is an exigency requiring additional government involvement.

  I asked Chairman Genachowski last October to provide the Committee with the number of alleged violations of the Commission’s “open Internet” principles under investigation, or that were the basis of prior Commission enforcement action, in part to inform our discussion about whether there is an exigency.  Regrettably, the letter I received back contained none of the information I asked for.

  The net neutrality discussion has also lacked analysis of existing authorities and protections to determine the role they may play in preserving the openness of the Internet.  For example, are the nation’s anti-trust laws and the agencies that enforce them unable to address the possibility that a company that owns both content and the means to distribute it may favor its own content over that of a competition?

  And the proclamations last week that the court’s decision left the broadband market without any consumer protection capability completely ignore the fact that the most robust consumer protection agency in this country, the Federal Trade Commission (FTC) , has enforcement jurisdiction.  Ironically, this jurisdiction was actually conveyed to the FTC when the FCC removed the common carrier regime from these technologies, and would be eliminated if the FCC reverses that decision, actually harming consumers by reducing their available protections.

  We have had this discussion now for almost four years without facts and reason.  This technology marketplace is far too important to the nation’s commercial health to be subjected to uninformed debate or reflexive regulatory actions.

  In my judgment, if the FCC were to take the action Chairman Genachowski and his colleagues appear to be considering, reclassifying broadband as a common carrier service, and if it does so without a directive from Congress and a thorough analysis of the facts and the potential consequences to investment, the legitimacy of the agency would be seriously compromised.             

  I hope that we can take a step back to consider the consequences of such a decision and whether there are alternatives we can work together on to clarify the authority of the FCC while preserving an environment that encourages investment.  I am confident we can find common ground, but that will not happen if the FCC takes this action.
  
  Mr. Chairman, again thank you for holding this important hearing.  I am sure it will not be our last on this subject.  I look forward to Chairman Genachowski’s testimony.          

Testimony

• The Honorable Julius Genachowski

  Chairman

  Federal Communications Commission
  Download Testimony (141.20 KB)