Civil rights groups tell the FCC: social justice requires an open Internet

by Media Action Grassroots Network et al.

This week, Reclaim the Media's national coalition, the Media Action Grassroots Network (MAG-Net) joined with dozens of civil rights organizations across the country, in urging the Federal Communications Commission to preserve open Internet policies and reassert its authority to protect consumer and citizen rights online.

Below is the summary and complete text of the comments filed this week. National organizations joining the comments include the Applied Research Center, Color of Change, Presente, the National Hispanic Media Coalition, the Mational Association of Hispanic Journalists, Native Public Media and the Rural Broadband Coalition. Washington State organizations supporting MAG-Net's digital justice call for open Internet rules include Reclaim the Media, the Seattle Minority Executive Directors Coalition, One America, KBCS, the Youth Media Institute, WashPIRG, Washington Bus, Hidmo Eritrean Cuisine, Common Language Project, Ozya, Reel Grrls, Hollow Earth Radio, Sustainable Ballard, NOW Seattle, Community Alliance & Peacemaking Project, Community Alliance for Global Justice, Langston Hughes Film Festival, and Newground Social Investment.

(pdf version with footnotes is here)

SUMMARY

Media Access Project, on behalf of Media Action Grassroots Network, et al. (collectively “Media Justice Commenters”), submits these Reply Comments in response to the Commission’s Notice of Proposed Rulemaking in In the Matter of Preserving the Open Internet, Broadband Industry Practices.

The record in this proceeding demonstrates the need for open Internet rules to encourage and protect political, economic, and social activities. Importantly, for Media Justice Commenters, open Internet protections are critical for empowering disenfranchised communities and critical in driving the adoption of broadband in these communities. In light of the considerable evidence and data regarding the importance and need for the proposed rules, combined with the Commission’s predictive judgment, it is imperative the Commission swiftly act to adopt open Internet provisions. Considering the recent Comcast v. FCC decision, the Commission must quickly retain its jurisdiction over broadband services so that it can adopt the proposed open Internet rules.

Contrary to the claims of some Commenters, the inability to earn extra revenue and recoup costs by charging for enhanced or prioritized service will not broaden the digital divide. Indeed, data in the record indicate that providers have earned considerable revenue over the last decade, allowing providers to invest in infrastructure. Moreover nondiscrimination rules have not hindered telephone company investment in broadband deployment. The reality is that many providers have dragged their feet when it comes to building out in disenfranchised communities. There is no reason to believe that adopting nondiscrimination rules somehow will prevent the deployment of affordable broadband into disenfranchised communities, especially since providers have already failed to invest in those communities.

Additionally, the market itself can not cure the harms associated with discriminating among services, content, applications, or devices. While some claim the broadband market is competitive, the reality for the constituents of Media Justice Commenters is that wireline and/or wireless broadband access is sporadic or nonexistent. For too many, the alleged existence of competition has not resulted in lower prices and more choices. Moreover, competition in and of itself cannot discourage the temptation to earn additional revenues through discrimination, when switching costs - such as early termination fees and valuable time - remain an obstacle for consumers to simply switch providers.

Some have argued the Commission should do nothing. However, doing nothing would ignore the evidence in the record for the need and benefits of open Internet rules. Media Justice Commenters believe it is time now for the Commission to act to protect and empower all Internet users.

REPLY COMMENTS OF MEDIA ACTION GRASSROOTS NETWORK, COLOROFCHANGE.ORG, PRESENTE.ORG, APPLIED RESEARCH CENTER, AFRO-NETIZEN, NATIONAL ASSOCIATION OF HISPANIC JOURNALISTS, NATIVE PUBLIC MEDIA, RURAL BROADBAND POLICY GROUP, AND NATIONAL HISPANIC MEDIA COALITION

Media Access Project, on behalf of Media Action Grassroots Network (“MAG-Net”), et al. (collectively “Media Justice Commenters”), submits these Reply Comments in response to Comments that claim the proposed open Internet rules will harm communities of color. In these Reply Comments, Media Justice Commenters also respond to Comments that claim the broadband market is competitive. As discussed below, Media Justice Commenters do not find any merit to these assertions and urge the Commission to adopt open Internet rules.

I. INTRODUCTION AND BACKGROUND

Collectively, Media Justice Commenters represent communities of color, immigrant communities, and low wealth communities (collectively, “disenfranchised communities”) in both rural and urban neighborhoods. Despite the recent decision in Comcast v. FCC, Media Justice Commenters believe the Commission has the ability to retain and exercise jurisdiction over broadband services. This jurisdiction would then allow the Commission to adopt the proposed open Internet rules. Thus, Media Justice Commenters urge the Commission to act swiftly to ratify its authority over broadband services so that it can quickly resolve this proceeding. As the record in this proceeding demonstrates, open Internet rules are critical to empowering disenfranchised communities and critical in driving the adoption of broadband in these communities.

Some in this proceeding have tried to obscure the need for nondiscrimination rules by trying to divert attention to broadband availability and affordability. Media Justice Commenters are keenly aware of the inequities of broadband availability and affordability for their constituents. It is for this very reason Media Justice Commenters have reached out to their constituents in disenfranchised communities to understand their concerns regarding the availability of affordable broadband and have tried to find ways to bring affordable broadband into disenfranchised communities. Consistent with their outreach efforts towards universal broadband, Media Justice Commenters have come to recognize that in addition to universal, affordable broadband, disenfranchised communities also need and desire open Internet protections. To that end, Media Justice Commenters have worked with their constituents in advocating for both affordable broadband and open Internet provisions.

For example, to assist with community efforts in the adoption of broadband among disenfranchised communities, members of MAG-Net applied for stimulus funds from the National Telecommunications Information Administration’s (“NTIA”) Broadband Technology Opportunities Program (“BTOP”). In an effort to understand and document the real challenges faced by their constituents, others have given voice to community members by creating video documentaries detailing the challenges and experiences of residents in their communities regarding broadband and the Internet. Another effort to engage communities and understand their concerns regarding the broadband experience included a National Day of Action, which took place on February 16, 2010. This National Day of Action involved MAG-Net members conducting in-district delegation visits with congressional representatives, participating in direct actions, and holding press conferences to highlight the need for universal broadband and open Internet provisions.

Additionally, MAG-Net initiated a campaign regarding issues surrounding universal broadband and network neutrality. MAG-Net’s campaign for full broadband access, adoption, and open Internet protections resulted in 370 organizations taking the pledge for digital inclusion. Collectively, these organizations represent approximately one million individuals from disenfranchised communities, particularly the poor and people of color, all expressing a desire and need for both universal availability of broadband and nondiscrimination rules. These supporters expect not only to have affordable broadband access, but also nondiscrimination rules to protect their open Internet experience. Similarly, ColorOfChange.org recently launched a campaign to educate its members on the importance of the Commission’s proposed rules. That campaign has generated so far over 50,000 supporters requesting the adoption of a nondiscrimination rule and noting that there is “no conflict between expanding access and preserving an open Internet.”

Through these and other efforts, Media Justice Commenters know first hand not only the significance of an open Internet, but also the consequences of a widening digital divide. It is also through these efforts that Media Justice Commenters have concluded that network neutrality and universal, affordable broadband are not mutually exclusive, but must be attained concurrently. Thus, as a result of active outreach and education, these Reply Comments reflect the concerns and views of the constituents of Media Justice Commenters.

II. NONDISCRIMINATION AND OPEN INTERNET RULES WILL NOT AFFECT THE AVAILABILITY OF AFFORDABLE BROADBAND

Through direct outreach and experience with disenfranchised communities, Media Justice Commenters have consistently understood the great importance, desire, and need for open Internet and nondiscrimination rules to ensure digital equality. More importantly, they have understood that there is no correlation between nondiscrimination rules and the ability of ISPs to provide affordable broadband access to disenfranchised communities. However, some have suggested that the Commission’s proposed nondiscrimination rule “could negatively affect minorities.”

For example, some suggest the proposed rules would prevent deployment and raise costs. They argue the rules would prohibit ISPs “from entering into voluntary arrangements by which content, application, or service providers agree to pay for enhanced or prioritized service.” They further suggest the proposed rules “could have the effect of requiring broadband providers to recover the costs of their next generation networks entirely from end-user consumers because broadband providers would be denied the flexibility to charge Internet companies for enhanced or prioritized services.”

Oddly, these statements seem to blindly assume that “enhanced or prioritized service” will be offered inevitably to residents and local businesses, especially smaller entrepreneurs, in disenfranchised communities. Moreover, these arguments also seem to assume that any recovery of costs and additional revenue will necessarily trickle down to the ultimate end user, thus resulting in lower costs for Internet users or in further investment in the deployment of services in disenfranchised communities. Neither assumption is well-founded; the overwhelming likelihood is that such “enhanced or prioritized services” will be offered to the largest and most-deep pocketed customers since they are likely to place a high value on preserving their incumbency and staving off new competition. Experience teaches also that the benefits of reduced costs do not get passed on to customers, especially where there is limited competition.

Indeed, the current record suggests that disenfranchised communities will not benefit from the recovery of costs and additional revenue. It appears that providers already are earning sufficient revenue where “[b]y some estimates, cumulative capital expenditures by broadband providers from 2000-2008 were over half a trillion dollars.” Apparently, in “2008 alone, broadband providers invested $64.2 billion to deploy and upgrade their networks and in 2009 were projected to invest just under $60 billion.” Thus, according to the United States Telecom Association, ISPs are “investing massive amounts” in infrastructure and consumers are “reap[ing] [the] benefits of broadband investment.”

While such investment may have benefitted some communities, as Media Justice Commenters and others have noted, the benefits of these investments - presumably lower costs and broadband availability - are not being felt in disenfranchised communities. For instance, the Comments for National Organizations noted that “broadband adoption among minorities and the socially and economically disadvantaged is a significant problem.” Similarly, as was reported in a recent study by Social Science Research Council (“SSRC”), not only is availability of broadband access an issue, but the cost of broadband is a key factor in limiting adoption. While “enhanced or prioritized service” could result in greater revenues for the providers, there is no guarantee that allowing for these types of services - which could continue the discrimination experienced by disenfranchised communities - would actually benefit the constituents of Media Justice Commenters.

On the other hand, as others have documented, the existence of nondiscrimination rules do not guide the decisions of ISPs in determining whether to invest in a certain community. Indeed, the level of investment by AT&T during the period it was subject to nondiscrimination rules suggests otherwise. Between 2006 and 2008, as a condition of AT&T’s merger with BellSouth, AT&T was subject to the Internet Policy Statement as well as a nondiscrimination principle. As has been noted in the initial round of Comments, a “review of AT&T’s investments over those two years shows quite clearly that a strict network neutrality rule did not result in the company reducing capital investment.”

Specifically, it was determined that during the period between 2006-2008, AT&T had actually increased its wireline capital expenditures, despite being subject to nondiscrimination conditions. More importantly, compared to some of the other incumbent ISPs, AT&T’s relative investment growth was actually higher than some of the incumbents, who were not subject to the nondiscrimination condition. Thus, based on actual data, Media Justice Commenters are not convinced that the only way to provide affordable broadband is to give ISPs the flexibility to prioritize certain content, applications, and services.

Media Justice Commenters are also skeptical about the warnings that their communities will suffer from a widening of the digital divide if the Commission adopts the proposed rules because, frankly, they simply do not believe that any increased carrier revenues will benefit the constituents of Media Justice Commenters. This lack of trust is based on the reality that many ISPs currently make little or no investment in disenfranchised communities. This lack of trust is also the result of resistance to these communities establishing their own networks and poor treatment from the very same entities that have claimed that the delivery of affordable broadband will be possible so long as the Commission does not adopt nondiscrimination rules.

For example, the City of Philadelphia undertook an effort to bridge the digital divide in its neighborhoods. However, Comcast questioned the merits of the City’s application to the NTIA for stimulus funds to build a broadband infrastructure in disenfranchised communities. The NTIA required the stimulus funding to go to areas that were either unserved or underserved. Among other criteria, NTIA considered an underserved area to be one in which no more than 50% of an area had access to a broadband service. In August of 2009, community organizers, local institutions, and the City of Philadelphia’s Department of Technology Office collaborated to submit an application to bring broadband to Philadelphia, where the broadband penetration rate was considered to be as low as 50 percent. The application sought funding to build a hybrid fiber/wireless system to “bridge the digital divide, improve public safety (through connectivity to surveillance networks), and facilitate better public services by enabling the deployment of handheld technology and better field-to-home and field-to-field communication between City employees and others.” However, Comcast essentially challenged the application when it argued that since it provided service in some areas in Philadelphia, there were no unserved or underserved communities.

Mistrust also exists over the ISPs assurances that their ability to raise revenue will help disenfranchised communities because of these communities’ actual experiences with the ISPs. For example, the constituents of Media Justice Commenters often experience lack of transparency and clarity with respect to fees associated with broadband service, which eventually leads to higher prices. For instance, as was reported in a recent study in the SSRC Study, many have a difficult time in understanding the costs associated with broadband service. According to one respondent “‘You have a bill, they tell you it’s gonna be this much, but at the end of the month, it’s this much. And you know, that’s why people with the Internet get cut off sometimes. Maybe they don’t understand … I don’t know, I don’t understand it either.’”

Similarly,

[l]ack of clarity around installation fees was also a widespread issue. In Philadelphia, Chris reported ordering a “triple-play” service (bundled phone, cable, and Internet) and receiving an $800 bill for installation costs plus the first month of service, which he did not pay. Other unexpected fees that figured prominently in respondent complaints included equipment rentals, taxes, and surcharges. Low-income customers were also sometimes asked to pay a deposit, raising the upfront costs of connection.

Consequently, the “confusing and unpredictable practices inform the general distrust with which most service providers are viewed.”

Transparency issues are not limited to billing issues. For example, Verizon recently failed to disclose safety issues regarding its FiOS service. In May 2008, Verizon sought a franchise to install its FiOS service in New York City. Two years earlier, in 2006, Verizon learned that the installation of its FiOS service in some areas of the State had violated provisions in the National Electric Code.

The public was not made aware of these violations until July 2008, well after the public comment period regarding Verizon’s request for a franchise in New York City. For some, it appeared that Verizon had not revealed these violations with New York City’s Department of Information Technology and Telecommunications, despite months of discussions and negotiations. In fact, Council member Avella expressed his concern “that this information may not have been made available ... prior to [the] approval of this agreement. Clearly this is extremely important public safety information which should have been reviewed by the [City] in detail prior to its own approval and have been available to the public prior to the public hearing on May 20, 2008.”

For Media Justice Commenters, the benefits of nondiscrimination rules are clear and tangible. The Internet has been the only electronic medium that has provided disenfranchised communities with equal access for speech activities and economic, social, and political opportunities. These sorts of equal opportunities are critical for disenfranchised communities and should not be compromised, despite vague warnings of the rules alleged effects on the digital divide.

III. THE BROADBAND ACCESS MARKET IS NOT COMPETITIVE

Some parties suggest the proposed rules are not necessary since the broadband market is competitive. However, submissions in other proceedings actually suggest that neither the wireline or wireless broadband market is competitive. Morever, in assessing competition, Media Justice Commenters do not believe the benchmark is simply about getting service, but also affordability. Finally, even if there were effective competition, this alone would not displace the need for the proposed rules.

A. There is a Lack of Competition in the Wired Broadband Market.

Some commenters argue “there are five or six broadband providers in most parts of the country, and that there are a number of indicators of competition among these providers.” Others suggest that as “a result of massive private investment in infrastructure, and the parallel development of wireline and cable broadband platforms, the U.S. now has one of the most competitive broadband markets across one of the largest geographic spans in the world. An overwhelming majority of Americans today can choose among multiple broadband platform providers.” However, data and actual experience suggest otherwise.

For example, the Commission recently found that “approximately 96% of the population has at most two wireline providers, [and] there are reasons to be concerned about wireline broadband competition in the United States. Whether sufficient competition exists is unclear and, even if such competition presently exists, it is surely fragile.” More importantly, though, is the actual experience of the constituents of Media Justice Commenters.

For example, as is known widely already, in some rural areas, residents do not have broadband. As one resident noted, “If you want high-speed internet access, and you happen to live in certain areas on and around Eastern Kentucky’s Pine Mountain, where I live--currently there’s only one thing to do: Move.” Amazingly, in some rural communities, while the backbone may exist just a few miles away from an individual’s home, since there is no other provider to force build-out or competition, the ISP has no incentive to “go the last mile.” Consequently, these communities have to rely on a dial-up service. The SSRC Study came to similar conclusions regarding rural areas when it found:

In meetings with rural New Mexicans, a number of respondents reported living in areas served only by satellite or cellular modem. Adopters among them reported mixed results with these services, with reception sometimes unable to penetrate the walls of the adobe homes common to the area. Librarians in Greene County, New York—a rural area in the Catskill Mountains between Albany and New York City—indicated that broadband is simply unavailable to many of their patrons.

Issues of choice and competition are not limited to rural areas. The SSRC Study “found considerable anecdotal evidence that acquiring standard cable or DSL service is more difficult for low-income residents in urban areas than the more optimistic of these reports suggest. Visits to Philadelphia, the Twin Cities, and Albuquerque all produced reports of problems with basic availability....” According to the SSRC Study,

a focus group of community intermediaries in Philadelphia, drawn from groups working on digital inclusion in the city, told us that Comcast claims to offer complete coverage of the Philadelphia area but refuses to provide services to residents of Philadelphia Housing Authority developments—a population of 81,000. Although Verizon does provide DSL coverage to Housing Authority residents, such service requires Verizon [wireline] phone service, which many residents choose to do without. We received similar reports about other locales from sources who preferred to stay off the record, including a claim by a broadband planning expert that large numbers of residential and business customers in Albuquerque could receive only dial-up service from their incumbent provider, Qwest Communications.

Similarly, the SSRC Study found:

In another instance, a member of 9to5 Milwaukee, a self help and advocacy group for low-wage working women, reported being informed by providers that broadband was unavailable at her residence despite the proximity of a bank, a library, and shops that had service. After being told several times by a local broadband provider to call back and inquire again, she signed up for dial-up service rather than go without Internet connectivity. Reports of this kind were common enough to suggest the need for greater scrutiny of provider claims about access for low-income urban populations.

The lack of competition not only affects availability and choice, but also affordability. Ideally, competition should allow for lower prices and unbundled services. However, according to the SSRC Study, “[s]everal reported that service was available only in the context of a bundle, tying apparent discounts for broadband to much higher overall monthly bills.” The tying of broadband service to other services effectively makes the broadband service unaffordable and limits adoption.

While it may not be feasible to wire broadband for 100% of the country, there is clear indication that areas remain unserved or underserved, not because of a lack of feasability, but because the lack of competition does not encourage buildout in those areas. Thus, while it may be easy to simply state that competition exists, the reality is that the constituents of Media Justice Commenters are certainly not the recipients of such alleged competition.

B. There is a Lack of Competition in the Wireless Broadband Market.

According to some commenters, “[t]here is fierce competition in the US among the wireless carriers in the provision of mobile broadband services, which has brought substantial benefits to consumers and has spurred the rapid deployment and expansion of these mobile broadband networks across the country.” Despite these assertions, the experience of the constituents of Media Justice Commenters is to the contrary. Moreover, despite the availability of broadband through wireless services, wireless broadband cannot be considered at this point a substitute for wireline broadband. Communities lacking meaningful access and choice for wireline broadband access continue to desire affordable wireline access and should have that option, especially when considering speeds and ease of undertaking certain tasks (e.g., filling out a job application on-line) on a wireline broadband connection.

Media Justice Commenters agree with the analysis submitted by Public Interest Commenters that the current marketplace is not competitive. Additionally, in assessing competition, Media Justice Commenters believe competition must promote both accessibility of devices, services, applications, and content as well as affordability. Thus, when considering both availability and affordability, it is evident that sufficient competition does not exist, especially in disenfranchised communities.

For example, in St. Charles, Minnesota, mobile phone owners feel constrained with what they can do with their mobile phones. Mobile phone users are unable to access desired applications such as VoIP or document viewers, or in some cases, while these applications may be available, they are often treated as premium services that consumer have to pay a great deal more for, and often times are required to upgrade their phones to do so. Therefore, while many in the community have mobile phones with Internet and email access, they are unable to send or receive documents or communicate with families in other countries via VoIP applications.

Similar issues arise with respect to the availability of carriers. For example, “community volunteers at La Comunidad Habla in Albuquerque offered a typical complaint about a $25/month introductory wireless offer—the only available service in their area—that rose to $93/month. Several respondents reported dropping service after such surprises.” The SSRC Study also found that despite claims of coverage in an area, in many cases, there actually is no coverage. According to one resident from Pajarito Mesa, a rural community outside of Albuquerque, New Mexico, wireless carriers will provide consumers a coverage map indicating service areas, but in reality, the service does not work. Similarly, the SSRC Study noted that “[a]n intermediary from Moorhead, MN reported that a mobile home park was not covered by a local wireless provider, despite the fact that areas on either side were.”

Affordability and availability issues also exist in urban areas, which should supposedly benefit from increased competition. For instance, in Harlem, New York, although the iPhone is available, consumers either have to forgo purchasing one due to costs of the annual service or manipulate the phone in order to purchase a cheaper service plan from a competitor. This demonstrates that even in urban areas, issues of affordability of service and choices for devices and services exist. Despite claims of rapid and rampant wireless deployment and service, issues of availability, choice of devices and services, and affordability continue to remain. These issues exist especially in disenfranchised communities, which rely the most on wireless services to access the Internet.

C. Effective Competition Would Not Cure the Need for the Proposed Rules.

Even if competition were to exist, competition alone would not be sufficient to prevent the harm the rules are intended to address. As the Ad Hoc Telecommunications Users Committee noted, “even if broadband Internet access markets were robustly competitive, the proposed rule would still be necessary because that competition cannot constrain the market behavior of broadband Internet access service providers towards non-affiliated content, application, and service providers.” This is the case because “once a subscriber chooses a wireline or wireless Internet access provider, her content, application, and service providers are captive to that [network] provider regardless of the competitive choices, if any, available to [the subscriber] before subscription.”

Moreover, because of high switching costs for both wireless and wireline broadband services, competition alone would not address issues related to discrimination and other anti-competitive conduct. When consumers faces switching costs, such as monetary costs, effort, time, and uncertainty, consumers will be reluctant to switch. Thus, competition alone would not solve the need to adopt open Internet rules.

IV. THE RULES ARE FLEXIBLE AND MINIMAL AND MUST APPLY TO WIRELESS

Some Commenters suggest the Commission cannot apply the proposed rules to wireless services because of constraints of wireless network. For example, one Commenter states “[w]ireless broadband services are constrained by limited and dynamically changing radio resources shared among multiple users, and service providers need to be free to manage their networks in order to meet the current and expected consumer demand and service quality obligations.” However, the proposed rules are not only feasible but extremely critical, especially for disenfranchised communities. As discussed in depth in Media Justice Commenters’ initial Comments, wireless access to the Internet can play a critical role in disenfranchised communities. Data indicate that wireless devices are increasingly being used for Internet access, especially by communities of color. Thus, it is critical that the constituents of Media Justice Commenters have the opportunity to have the same Internet experience with a wireless broadband service that they would have with a wireline service. To ensure this same experience, the same rules must apply to both wireless and wireline access.

Moreover, despite assertions to the contrary, application of the proposed rules to the wireless network is feasible. A Study by Columbia Telecommunications Corporation demonstrates that it is technologically feasible for wireless providers to abide by the Commission’s proposed rules. As the Comments filed by New America Foundation, et al, state, “[w]hile the details of what constitutes reasonable network management may differ, case-by-case, depending on the technology platform used to distribute Internet access services, the larger open Internet framework should not.”

Similarly, the Wireless Internet Service Providers Association (“WISPA”) also supports the adoption of rules which will promote an open Internet framework. Essentially, WISPA agrees that it is possible to adopt a technologically neutral reasonable network management exception to the proposed nondiscrimination rule. As Media Justice Commenters suggested in their initial Comments, WISPA similarly recommends “that the Commission should not deem any broadband Internet access service provider’s network management techniques to be ‘reasonable’ unless the provider can demonstrate the use of the least restrictive means necessary to accomplish the objective.”

It is well acknowledged that a digital divide exists in this country. This divide exists mainly because broadband is not available, not affordable, or both. However, for many of the constituents of Media Justice Commenters, one gateway to the Internet has been through wireless broadband access. While a wireless broadband service currently does not serve as a substitute for a wired service, it is critical that those whose only access at the moment is through a wireless service have the same experience as those who are lucky enough to have access through a wired service.

V. THE COMMISSION MUST PROTECT ALL INTERNET USERS

Some Commenters suggest the Commission should not adopt the proposed rules, in the event they lead to unintended consequences. They argue the “Commission should abide by a ‘first do no harm’ approach, refrain from adopting any net neutrality rules unless the record evidence clearly establishes a need for each rule and that the interests of minorities will not be harmed.” However, Media Justice Commenters believe the actual harm would be in not adopting the proposed rules.

Media Justice Commenters commend the Commission for undertaking this proceeding to gather information and comments on the proposed rules. In fact, in its findings and in its request for information, the Commission has expressly taken into account the needs of all people, including disenfranchised communities. The Commission appropriately is gathering facts and information, and can supplement this fact-gathering phase with its predictive judgment to adopt the rules necessary to protect all Internet users.

While the record in this proceeding is likely to be massive, it is not unusual for the Commission to rely on its predictive judgment as the expert agency. Indeed, predictive judgments are frequently required. For example, when the Commission adopted rules regarding media consolidation in a market as an effort to promote competition, localism, and diversity, the D.C. Circuit found that the Commission did not have an adequate factual basis for adopting the regulations. However, the Supreme Court reversed the D.C. Circuit and found that the Commission’s rules were based on a series of predictive judgments.

The Court noted some of these predictive judgments:

whether a divestiture requirement would result in trading of stations with out-of-town owners; whether new owners would perform as well as existing crossowners, either in the short run or in the long run; whether losses to existing owners would result from forced sales; whether such losses would discourage future investment in quality programming; and whether new owners would have sufficient working capital to finance local programming.

Based on these predictive judgments, the Court concluded that in “such circumstances complete factual support in the record for the Commission’s judgment or prediction is not possible or required . . . .” Moreover it is entirely natural and appropriate for the Commission to conclude that adoption of rules are necessary based on the expertise of the agency and for these conclusions “to be infused with policy considerations.”

Media Justice Commenters and others have discussed the extremely important policy reasons for adopting the proposed rules. For example, as a number of parties have demonstrated, freedom of expression, economic and social opportunities and growth, and innovation are in the interests of all Internet users. Indeed, the Commission clearly has power to adopt the proposed rules based on the diversity goals of the public interest standard of the Communications Act of 1934; in upholding the Commission’s broadcast ownership rules in FCC v. NCCB, the Supreme Court, quoting the Court of Appeals, explained that “far from seeking to limit the flow of information, the Commission has acted...‘to enhance the diversity of information heard by the public without on-going surveillance of the content of speech.’”

Similarly, Media Justice Commenters and other parties have demonstrated that the proposed rules will not somehow widen the digital divide by stifling deployment or making broadband unaffordable. Media Justice Commenters are aware that arguments have been made to the contrary, but this is no reason for the Commission to delay action or take no action. Instead, the Commission can conclude, based on the evidence in the record and its predictive judgment that if it does not adopt the proposed rules, the social, political, economic, and educational benefits of the Internet could be threatened.

VI. CONCLUSION

There is considerable evidence in the record regarding the benefits and need for open Internet protections, especially for disenfranchised communities. Despite assertions of a competitive broadband market, the current market is not competitive, and even if it were, it would not be enough to cure the harms of a regime that fails to adopt the proposed rules. Media Justice Commenters urge the Commission to assert its jurisdiction to protect the public and adopt open Internet rules.

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