The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12th Street, SW
Washington , D.C. 20554

Dear Chairman Genachowski:

We are writing to reinforce the strong bipartisan consensus among policymakers, industry participants, and analysts that the success of the broadband marketplace stems from policies that encourage competition, private investment, and legal certainty.

[There is no legal uncertainty about the FCC’s authority to classify the transmission component of Internet access service as a Title II service. In 2005, the Supreme Court held that the agency had the discretion to make this policy choice.]  

The regulatory framework first adopted in 1998 by the Clinton Administration’s FCC has resulted in broadband industry infrastructure investment of approximately $60 billion per year.

[In 1998, the Clinton-era FCC affirmed the 1996 Act's general deregulatory stance towards web content and non-facilities based dial-up ISPs. It explicitly left cable broadband ISPs in policy limbo and left the door open to their transmission services being treated as Title II telecommunications. However, DSL ISPs were already and continued to have their transmission facilities be treated as Title II telecommunications services until the Bush-era FCC classified DSL ISPs as information services in 2005. So it is a myth to paint the 1998 policy as the same as the Bush FCC policy.] 

In the last decade, multiple providers and the hundreds of thousands of workers they employ have brought high speed connections to 95 percent of U.S. households where two-thirds of Americans now access the Internet through broadband at home.

[Americans are paying a whole lot more and getting a whole lot less of the Internet speeds that we deserve. U.S. broadband speeds average about 4 to 5 megabits per second (Mbps) when downloading and 1 Mbps when uploading. That’s a fraction of the download speeds available to users in other countries. For example, Japanese internet users accustomed to surfing the Web at speeds of 100 Mbps at the same prices Americans pay for access to the slow lane. In Hong Kong, one provider now offers a 100 Mbps connection for $13 a month.]

Still, much work remains to be done.

[Indeed, much work needs to be done. Last year, President Obama and Congress tasked the FCC to lead efforts to do it. The National Broadband Plan released by the agency in March was the agency's response and a positive step in that direction. This letter, however, scuttles these efforts. By urging the FCC not to re-assert it's authority over broadband access services, the signers are effectively saying “much remains to be done to improve broadband access, affordability and speed, but we want to stop you from doing it.”] 

According to the National Broadband Plan, 14 million Americans lack broadband access altogether, many underserved areas need more robust broadband facilities, and both wired and wireless broadband services require increasing speeds. As the Plan notes, that work will require as much as $350 billion in additional private investment. Generating those enormous sums from industry, and the good-paying jobs they produce, will require a continued commitment to the stable regulatory environment that has existed for the last dozen years. 

[The April 6 decision by the DC Circuit Court of Appeals demonstrated that the “regulatory environment” was anything but “stable.” The court's decision implies that the FCC lacks the authority to implement many of the recommendations of its National Broadband Plan. In order to regain that authority, FCC Chairman Julius Genachowski has proposed a “third way” — classifying residential broadband transmission as a telecommunications service so that the FCC can protect an open Internet and promote universal access. This letter recommends maintaining the regulatory limbo that created this mess.]

Because of this, we have serious concerns about the proposed new regulatory framework for broadband and the Internet. The expanded FCC jurisdiction over broadband that has been proposed and the manner in which it would be implemented are unprecedented and create regulatory uncertainty. The controversy surrounding that approach will likely serve as a distraction from what should be our Nation’s foremost communications priority: bringing broadband to every corner of America, getting every American online, and providing the high speed connections needed to realize the promises of telemedicine, distance learning, and other forms of consumer empowerment. 

[Nothing could be further from the truth. Reasserting the FCC’s authority is integral to restoring its authority to “bring broadband to every corner of America, get every American online, and provide the high speed connections needed to realize the promises of telemedicine, distance learning, and other forms of consumer empowerment.” Just ask Austin Schlick, General Counsel of the FCC. ]

The continued deployment and adoption of broadband, the growing importance of the Internet to our constituents, and the significant contributions this will make to our economy should be the FCC’s primary focus right now.

[According to a recent economic study by NYU’s Institute for Policy Integrity, Net Neutrality “produces billions of dollars of free value for the American public.” The study also found that “targeted government support for ISPs to expand access where needed, along with Net Neutrality rules to protect content providers, are the best combination of policies for overcoming the market failure of under-investment in the Internet.”] 

The uncertainty this proposal creates will jeopardize jobs and deter needed investment for years to come. The significant regulatory impact of reclassifying broadband service is not something that should be taken lightly and should not be done without additional direction from Congress.

[The Supreme Court has already said that the interpretation now proposed by the FCC is consistent with the 1996 Telecommunications Act. So if Congress disagrees with the FCC’s choice, it needs to pass a new law. But this letter implies that the FCC doesn't have the authority to act, when Congress and the Supreme Court have already said that it could.] 

We urge you not to move forward with a proposal that undermines critically important investment in broadband and the jobs that come with it.

Thank you for your attention to this letter, and we look forward to working with you in a constructive way to address these matters.

Sincerely, (Sadly)

74 Democratic congressmen including ours