FCCdocswm

Federal Communications Commission
Washington, D.C. 20554

November 7, 2014
VIA ELECTRONIC MAIL

Jason Leopold
Re:
Freedom oflnformation Act Request Control No. 2014-400
Dear Mr. Leopold:

This letter is a further response to your Freedom of Information Act (FOIA) request,
identified by FCC Control No. 2014-400, which, as revised, seeks records of internal and
external communications involving Commission personnel and regarding open Internet/net
neutrality during the period February 1, 2014 to May 15, 2014, excluding any publicly available
records.
As discussed more fully below, we are further granting your request in part and denying
it in part by providing you with an additional 406 pages of documents in response to your
request. We have redacted certain information in these documents that is not responsive to your
request or that falls within the scope ofFOIA Exemptions 4, 5 and 6. 1
Also in this response, we are denying your request in part by determining to withhold
additional documents in their entirety, based on FOIA Exemptions 4, 5 and 6? In making this
determination, Commission staff reviewed approximately 4,600 separate records, including
approximately 3,000 emails, of varying size identified as responsive to your request. In addition
to emails, these records comprise internal drafts, memoranda, charts, outlines, notes, outside
publications and filings in Commission dockets. We are still processing an additional set of
records and will attempt to provide you with a final response to your request by November 14,
2014.
Discussion
FOIA Exemption 4
Exemption 4 to the FOIA applies to "trade secrets and commercial or financial
information obtained from a person and privileged or confidentia1." 3 Pursuant to Exemption 4,
we have redacted from the attached, or are withholding in their entirety, copyrighted or otherwise
1
5 U.S.C. 552(b)(4), 552(b)(5) and 552(b)(6).

Id
3
5 u.s.c. 552(b)(4).
2
proprietary materials relating to the topic of open Internet. Also pursuant to Exemption 4, we
have redacted from certain meeting schedulers access codes and call-in numbers issued by the
Commission's telecommunications provider. We find that these materials constitute commercial
or financial information the release of which would cause competitive harm to the parties
creating them.
FOIA Exemption 5
FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency." 4 Determining availability by law is governed by whether or not the documents or
information are normally privileged in the civil discovery context 5 Exemption 5 therefore
covers communications that are protected by legal privileges, such as the attorney-client
privilege, attorney work-product privilege, or communications reflecting the agency's
deliberative process (e.g., internal recommendations and drafts of agency decisions). 6 Records
of internal communications are privileged in the civil discovery context under the deliberativeprocess privilege to the extent that they reflect pre-decisional, deliberative discussions that lead
to a formal decision, where disclosure of such information would harm the deliberative process. 7
The records, and portions of records, that we are withholding on the basis of Exemption 5
include inter and intra-agency drafts, emails, outlines, memoranda, charts, outlines, notes and
other documents that reflect the agency's deliberative process in connection with the open
Internet rulemaking. We conclude that release of these records would have the effect of
inhibiting the free exchange of ideas within the agency that the deliberative process privilege is
designed to protect 8 Consequently, we find that these records fall within the scope of the
deliberative-process privilege and are exempt from disclosure under FOIA Exemption 5. We are
withholding them on that basis.
FOIA Exemption 6
Exemption 6 to the FOIA permits the Commission to withhold information in order to
protect individuals' personal privacy. 9 Pursuant to this exemption, we have redacted from the
attached records individual contact information, including personal telephone numbers and email
addresses. We have also redacted certain names and statements of a personal or business nature
that are unrelated to open Internet or GN Docket 14-28. We find that there are substantial
5 u.s.c. 552(b)(5).
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTCv. Grolier Inc., 462 U.S. 19,26 (1983);
Martin v. Office of Special Counsel, 8 I 9 F.2d I I 8 I (D.C. Cir. I 987); see also Attorney General Memorandum
for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001),
reprinted in FOIA Post (posted I 0/I 5/0 I) (highlighting importance of protecting privileged information).
6 !d.
7
See e.g. Nat'! Wildlife Fed'n v. U.S. ForestServ., 861 F.2d I I 14, I I 19 (9th Cir. 1988) ("[T]he ultimate
objective of exemption 5 is to safeguard the deliberative process, not the paperwork generated in the course of
that process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is concerned with
protecting the deliberative process itself, comts now focus less on the material sought and more on the effect of
the material's release.").
8
See, e.g., Kiddv. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).
9
5 U.S.C. 552(b)(6) (Exemption 6 protects records if their disclosure "would constitute a clearly unwananted
invasion of personal privacy").
4
privacy interests at stake in connection with this information and that releasing it would not serve
the public interest. We therefore find that the disclosure of this information would constitute an
unwarranted invasion of personal privacy and we are withholding it on that basis. 10
Segregation/Review for Discretionary Release

The redactions made to the records released to you are consistent with our responsibility
under the FOIA to review records to determine if any portions can be further segregated and
released. 11 We have determined that no additional materials may be segregated and released.
Finally, we have reviewed the withheld documents, and portions of documents, to
determine if discretionary release of any of them is appropriate. 12 "Even when particular
information falls within the scope of a FOIA exemption, federal agencies generally are afforded
the discretion to release the information on public interest grounds." 13 Based on our review, we
do not discern any overriding public interest in releasing the material that we have determined is
exempt from disclosure under FOIA Exemptions 4, 5, and 6, given the substantial competitive
harm, harm to the integrity of the Commission's processes, or harm to the privacy interests at
stake, respectively, that would result from release of those records. 14
Pursuant to Section 0.461(j) ofthe Commission's rules, you may file an application for
review of this decision with the Commission's Office of General Counsel within 30 days ofthe
date of this letter. I5 Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope,I 6 and should reference FOIA Control
Number 2014-400.
Sincerely,
Wireline Competition Bureau

IO See Moorev. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red
13812, 13816, n. 13 (201 I) (personal email addresses and telephone numbers redacted pursuant to Exemption 6).
II 5 USC 552(b).
IZ See Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, 74 FR
4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOJA),
available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdt> (Attorney General Holder's FOIA Memo). See
also Reporters comm. For Freedom ofthe Press, 489 U.S. 749,773 (1989) ("the purpose [ofFOIA] ... is not fostered
by disclosure of information about private citizens that is accumulated in various governmental files but that reveals
little or nothing about an agency's own conduct").
3
I Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, 13 FCC Red 24816, 24818 (1998), citing Chrysler Corp., 441 U.S. 28 I, 292-94 (1979).
4
I See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (201 1).
5
I See 47 C.F.R. 0.4610).
IG !d.
cc:
FOIA Officer, FCC

September 26, 2014
VIA ELECTRONIC MAIL
Re:
Dear Mr. Leopold:

This letter is a further response to your Freedom oflnformation Act (FOIA) request,
external communications involving Commission personnel and regarding open Internet/net
records.
As discussed more fully below, we are providing you with an additional65 pages of
documents in response to your request. We have redacted certain information in these
documents that is not responsive to your request or that falls within the scope ofFOIA
Exemptions 5. 1 We are continuing in our efforts to review and analyze additional documents for
potential release and expect to supplement this response again on October 3, 2014.
Discussion
information are normally privileged in the civil discovery context. 3 Exemption 5 therefore
5 U.S.C. 552(b)(5).
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462 U.S. 19, 26 (1983);
Martin v. Office of Special Counsel, 819 F.2d 1181 (D.C. Cir. 1987); see also Attorney General Memorandum
for Heads ofAll Federal Departments and Agencies Regarding the Freedom ofInformation Act (Oct. 12, 2001),
reprinted in FOIA Post (posted 10/15/01) (highlighting importance of protecting privileged information).
The portions of records that we are withholding on the basis of Exemption 5 include
intra-agency emails and notes that reflect the agency's deliberative process in connection with
the open Internet rulemaking. We conclude that release of these records would have the effect of
designed to protect. 6 Consequently, we find that these records fall within the scope of the
We have reviewed the withheld portions to determine if discretionary release of any of
the portions being withheld is appropriate. 7 "Even when particular information falls within the
scope of a FOIA exemption, federal agencies generally are afforded the discretion to release the
information on public interest grounds." 8 Based on our review, we do not discern any
overriding public interest in releasing the material that we have determined is exempt from
disclosure under FOIA Exemption 5, given the substantial harm to the integrity of the
Commission's processes that would result from release of those records. 9
See e.g. Nat'! Wildlife Fed'n v. US. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate
protecting the deliberative process itself, courts now focus less on the material sought and more on the effect of
6
See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).
See Memorandum for the Heads ofExecutive Departments and Agencies, Freedom ofInformation Act, 74 FR 4683
(2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOIA), available
at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).
8
Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, 13 FCC Red 24816, 24818 (1998), citing Chrysler Corp., 441 U.S. 281, 292-94 (1979).
See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (2011).
Pursuant to Section 0.461(j) of the Commission's rules, you may file an application for
review ofthis decision with the Commission's Office of General Counsel within 30 days ofthe
date of this letter. Io Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope,u and should reference FOIA Control
Number 2014-400.
Sincerely,

cc:
FOIA Officer, FCC
Io
See 47 C.F.R. 0.461(j).
II
Jd.

October 3, 2014
VIA ELECTRONIC MAIL
Re:
Dear Mr. Leopold:

This letter is a further response to your Freedom of Information Act (FOIA) request,
external communications involving Commission persmmel and regarding open Internet/net
records.
As discussed more fully below, we are providing you with an additional 65 pages of
documents in response to your request. We have redacted certain information in these
documents that is not responsive to your request or that falls within the scope ofFOIA
Exemptions 5 and 6. 1 We are continuing in our efforts to review and analyze additional
documents for potential release and expect to supplement this response again on October 10,
2014.
Discussion

information are normally privileged in the civil discovery context. 3 Exemption 5 therefore
1
5 U.S.C. 552(b)(5); 5 U.S.C. 552(b)(6).
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTCv. Grolier Inc., 462 U.S. 19,26 (1983);
Martin v. Office ofSpecial Counsel, 819 F.2d 1181 (D.C. Cir. 1987); see also Attorney General Memorandum
for Heads ofAll Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001),
reprinted in FOIA Post (posted 10/15/0 1) (highlighting importance of protecting privileged information).
We have also redacted portions of the records we are producing on the basis ofFOIA
Exemption 6, which covers "personnel and medical files and similar files." 7 We find that the
disclosure ofthis information would constitute an unwarranted invasion of personal privacy. 8
We have reviewed the withheld portions to determine if discretionary release of any of
the portions being withheld is appropriate. 9 "Even when particular information falls within the
scope of a FOIA exemption, federal agencies generally are afforded the discretion to release the
information on public interest grounds." 10 Based on our review, we do not discern any
overriding public interest in releasing the material that we have determined is exempt from
disclosure under FOIA Exemptions 5 and 6, given the substantial harm to the integrity of the
Commission's processes, or the privacy interests involved, that would result from release of those
records. 11
See e.g. Nat'! Wildlife Fed'n v. U.S. ForestServ., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate
6
See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291, 296 (D.D.C. 2005).
5 U.S.C. 552(b)(6) (Exemption 6) (protects records if their disclosure "would constitute a clearly unwarranted
invasion ofpersonal privacy").
See also Moore v. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red
13812, 13816, n.13 (2011) (personal email addresses and telephone numbers redacted pursuant to Exemption 6).
See Memorandum for the Heads of Executive Departments and Agencies, Freedom ofInformation Act, 74 FR 4683
(2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOIA), available
at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).
10
Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, 13 FCC Red 24816, 24818 (1998), citing Ch1ysler Corp., 441 U.S. 281,292-94 (1979).
11
See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (2011).
Pursuant to Section 0.461G) ofthe Commission's rules, you may file an application for
review ofthis decision with the Commission's Office of General Counsel within 30 days ofthe
date of this letter. 12 Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope, 13 and should reference FOIA Control
Number 2014-400.
Sincerely,

cc:
FOIA Officer, FCC
12
See 47 C.F.R. 0.461G).
13
Id

September 19, 2014
VIA ELECTRONIC MAIL
Re:
Freedom of Information Act Request Control No. 2014-400
Dear Mr. Leopold:

This letter responds to your Freedom of Information Act (FOIA) request, identified by
FCC Control No. 2014-400, and revised by you in a June 2, 2014 telephone call involving you,
LaiTY Schecker of the FCC's Office of General Counsel, and Jocelyn Frye and myself of the
Wireline Competition Bureau. 1 As revised, your request seeks records of internal and external
communications involving Commission personnel and regarding open Internet/net neutrality
during the period February 1, 2014 to May 15, 2014. Such records/discussions are to include
those involving the Office of the Chairman, Commissioners, the Wireline Competition Bureau
and any other bureau(s) deemed appropriate within the parameters of our search. You indicated
you are not seeking any publicly available records.
As discussed more fully below, we are granting your request in part by providing you
with 55 pages of documents. We have redacted certain information in these documents that is
not responsive to your request or that falls within the scope of FOIA Exemptions 5 and 6.Z We
are continuing in our efforts to review and analyze additional documents for potential release and
expect to supplement this response initially on September 26, 2104.
Discussion
1
In response to the Bureau's requests, you consented to extensions of the deadline for responding to your FOIA
Request, resulting in the current due date of September 19, 2014. See E-mails from Jocelyn Frye, FCC, to Jason
Leopold dated June 10, 2014 and July 18, 2014. See also, E-mails from KirkS. Burgee, FCC, to Jason Leopold
dated August 12, 2014, August 15, 2014, and August 29, 2014.
2
5 U.S.C. 552(b)(5); 5 U.S.C. 552(b)(6).
information are normally privileged in the civil discovery context.4 Exemption 5 therefore
We have also redacted portions of the records we are producing on the basis of FOIA
Exemption 6, which covers "personnel and medical files and similar files." 8 We find that the
disclosure of this information would constitute an unwarranted invasion of personal privacy. 9
Finally, we have reviewed the withheld portions to determine if discretionary release of
any of the portions being withheld is appropriate. 10 "Even when particular information falls
within the scope of a FOIA exemption, federal agencies generally are afforded the discretion to
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462 U.S. 19,26 (1983);
Martin v. Office of Special Counsel, 819 F.2d 1181 (D.C. Cir. 1987); see also Attorney General Memorandum
for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001),
reprinted inFO/A Post (posted 10/15/01) (highlighting importance of protecting privileged information).
See e.g. Nat'/ Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate
7
See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).
5 U.S.C. 552(b)(6) (Exemption 6) (protects records if their disclosure "would constitute a clearly unwarranted
invasion of personal privacy").
See also Moore v. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red
13812, 13816, n.13 (2011) (personal email addresses and telephone numbers redacted pursuant to Exemption 6).
10
See Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, 74 FR
4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom of Information Act (FO/A),
available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).
release the information on public interest grounds." 11 Based on our review, we do not discern
any overriding public interest in releasing the material that we have determined is exempt from
disclosure under FOIA Exemption 5 or 6, given the substantial harm to the integrity of the
Commission's
or to the privacy interests involved, that would result from release of
those records. 1
Pursuant to Section 0.461(j) of the Commission's rules, you may file an application for
review ofthis decision with the Commission's Office of General Counsel within 30 days of the
date of this letter. 13 Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope, 14 and should reference FOIA Control
Number 2014-400.
Sincerely,

cc:
FOIA Officer, FCC
11
Examination of Current Policy Concerning the Treatment of Confidential

Submitted to the
Commission, 13 FCC Red 24816,24818 (1998), citing Chrysler Corp., 441 U.S. 281, 292-94 (1979).
12
See Warren Havens, 24 FCC Red 12308, 12319122 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (2011 ).
13
See 47 C.F.R. 0.4610).
14
/d.
From: Dave Burstein [mailto:daveb@dslprime.com]
Sent: Wednesday, May 07, 2014 7:47 PM

To: work@dslprime.com
Subject: Do glance: A Billion Homes towards a gigabit Webinar tomorrow
Gov and policy people: You can't understand the net neutrality debate without the best
data on whether networks are really congested. Dave Clark of MIT has the facts and
they are very different from what most of Washington believes. Dave is a net neutrality
skeptic, I believe, but facts are facts. Cioffi and Clark will also explain why the engineers
think 100 megabits and more is becoming practical and affordable. Do join or ask me for
a transcript after. db Here's the invite.
FolksTwo world class experts will point to the way to affordable Internet gigabits and the
Internet soon to come. Internet Hall of Famers John Cioffi of Stanford and MIT?s Dave
Clark lead a Marconi Society Expertise webinar. P'm moderating and guarantee it will be lively.
Thursday May 8 10 a.m. California, 1 p.m. New York, 6 p.m. London

No charge; just register at http://bit.ly/1cNGfTK
Short presentations and plenty of time for questions. Do join us.
Cioffi is working on ways to combine advanced DSL and WiFi to inexpensively deliver
hundreds of megabits and even a gigabit. Vectored DSL, Cioffi?s invention, is now
proven to deliver 100 megabits over a short loop. Gigabit WiFi chips are now shipping.
Combine the 10 or 30 WiFis visible in most urban areas and a gigabit is in reach. He?s
CEO of ASSIA, developing some of the systems needed for this and managing DSL.
(Marconi fellow Cioffi also will speak at a very strong Upperside event in Paris May 2122 on fast DSL. I?ll be speaking as well. Say hello to the round fellow with a beard.)
http: //bit.ly/1c8GXwP
Clark has recently done empirical work on network congestion - or lack thereof. ?Can
1
the Internet keep up with hundreds of gigabits to homes?? Clark has done seminal work
on the design of the future Internet. He was Chair of what?s now called the Internet
Architecture Board ..
Dave Burstein
Moderator for the Marconi Society, sponsor of this email
More, including biographies, http://bit.ly/1hye6ip
Mailing sponsored by The non-profit Marconi Society. Reply "un" to be removed from
the list
From: Latoya Toles On Behalf Of WCBChief

Sent: Thursday, May 08, 2014 3:12PM
To: Julie Veach; Matthew DelNero; Michael Jacobs; Randy Clarke; carol Simpson; Kristine Fargotstein
Subject: Meeting on behalf of Hagon Lovells & Roku re: to discuss Roku's interest in the net neutrality proceedin
When: Wednesday, May 21, 2014 10:00 AM-11:00 AM (UTC-05:00) Eastern Time (US & canada).
Where: 5-8142
Good afternoon,
We would like to schedule a meeting with Chief Veach and the Bureau front office and Division staff working
on the Open Internet proceeding, who we understand includes the following people:
Matthew DelNero, Deputy Bureau Chief

Michael Jacobs, front office legal advisoi
Randy Clark, Acting Chief of Competition Policy Division
Carol Simpson, Deputy Chief of Competition Policy Division
Kristine Fargotstein, Attorney Advisor in the Competition Policy Division
The topic of discussion will be Roku' s interest in the net neutrality proceeding, as it relates to MVPD
authorization ofRoku's over-the-top streaming set-top box platform. Please let me know if any of these slots
are available on May 21st:
12: 15p- 12:45p

1:00p- 1:30p
1:45p- 2:15p
4:45p-5:15
In attendance, will be the following people:
Roku:
Stephen Kay, SVP and General Counsel
Steve Shannon, General Manager of Content and Services
Hogan Lovells:
Michele Farquhar
Praveen Goyal
Many thanks, in advance, for your time.
Kind regards,
Penny Johnakin
Assistant to P. Goyal, Esq.
Penny Johnakin
Assistant
Columbia Square
555 Thirteenth Street. NW
Washington, DC 20004
Tel:
Direct:
Fax:
Email:
+1 202 637 5600

+ 1 202 637 7188
+1 202 637 5910
penny,johnakin@ hoganlovells,com
Please consider the environment before printing this e-mail.
From:
Sent:
To:
Cc:
Subject:
Roisman, Natalie <NRoisman@wbklaw.com>

Monday, May 12, 2014 10:51 PM
Jonathan Chambers
Howard Symons; rbender@mobilefuture.org; Julie Veach
Re: Your panel at the FCBA Annual Seminar, May 17
Thanks- we will be sure not to direct any of those questions to you. Appreciate the feedback!
Natalie
Sent from my iPad
On May 12, 2014, at 6:15PM, "Jonathan Chambers" <Jonathan.Chambers@fcc.gov> wrote:
For my part, I have not involved myself in the Open Internet item, so I'd prefer staying on the
sideline for those questions. Thanks
-----Original Message----From: Howard Symons
Sent: Monday, May 12,2014 06:11PM Eastern Standard Time
To: 'Roisman, Natalie'; rbender@mobilefuture.org
Cc: Jonathan Chambers; Julie Veach
Subject: RE: Your panel at the FCBA Annual Seminar, May 17
Natalie,
Could I ask you to strike the "biggest worry" question? I'm open to another idea if you want to propose it. I also
don't think I can opine on the Chairman's general wireless goals- that's really a Wireless Bureau matter.
Thanks in advance. Looking forward to the panel. Thanks for inviting me.
Howard
From: Reisman, Natalie [mailto:NRoisman@wbklaw.com]

Sent: Monday, May 12, 2014 12:11 PM
To: Julie Veach; Jonathan Chambers; Howard Symons
Cc: rbender@mobilefuture.org
Subject: RE: Your panel at the FCBA Annual Seminar, May 17
1
Hello, all. Apologies for bombarding you with another email in what I'm sure is a very busy
week for you. Rachael and I wanted to share with you the draft list of potential questions that
we've developed for Saturday's panel. As you might imagine, there are some placeholders that
we expect to be filled in based on this week's developments in the building. But in the
meantime, if you want us to strike or modify (or add) any questions, please don't hesitate to let
us know. It sounds like a call won't be necessary, but we remain available to chat with you if
you feel it would be beneficial.
Best regards,
Natalie
<imageOO l.jpg>
NATALIE
G.
ROISMAN
PARTNER
2300 N STREET, NW
SUITE700
WASHINGTON, DC20037-1128
MAIN 202.783.4141
DIRECT 202.383.3398
CELL 202.744.3757
FAX 202.783.5851
NROJSMAN@WBKLAW.COM
WWW.WBKLAW.COM
This electronic message transmission contains information from the law firm of Wilkinson Barker Knauer, LLP
which may be confidential or privileged. The information is intended to be for the use of the individual or entity
named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the
contents of this information is prohibited. If you have received this electronic transmission in error, please notify us
by telephone at 202.783.4141 or by electronic mail administrator@wbklaw.com immediately.
From: Roisman, Natalie
Sent: Wednesday, May 07, 2014 8:40PM

To: Julie Veach (julie.veach@fcc.gov); jonathan.chambers@fcc.gov; howard.symons@fcc.gov
Cc: rbender@mobilefuture.org
Subject: Your panel at the FCBA Annual Seminar, May 17
Dear Julie, Jonathan, and Howard:
Thank you so much for your willingness to participate in the FCBA's upcoming Annual Seminar
at the Homestead in Hot Springs. Your panel, titled "Competition, Competition, Competition ...
And Other Priorities: A Discussion With Chairman Wheeler's Senior Staff," will be Saturday
morning, May 17, at 11 a.m. I will be co-moderating the discussion with Rachael Bender of
Mobile Future. Unfortunately, we are the last panel before lunch, but on the bright side, we are
not the 8 a.m. panel! The full conference agenda is available here:
http://www .fcba.org/wp-content/uploads/20 14/05/DRAFT-Agenda-5-04-14.pdf
If you have any questions regarding travel, lodging, or other logistics, I am happy to try to
answer them or can refer them to the FCBA staff. Alternatively, you can always contact Stan
Zenor directly (stan @fcba.org or 202-293-4000).
With respect to our panel, Rachael and I plan to send around a draft list of potential questions by
the end of this week. We are happy to delete or add questions/topics at your request. You can
also feel free to suggest question topics in response to this email, if you would like. As you
likely are aware, the Annual Seminar need not be a place for "heavy lifting" in panel
presentations and discussions. You do not need to prepare powerpoints or opening remarks, and
Rachael and I promise not to surprise you (although we cannot guarantee the same from the
audience). We'll give you bonus points for humor, and extra bonus points if you bring funny
props.
The panel is scheduled to last an hour, and we are assuming it will be more like 50-55 minutes
since the earlier sessions are likely to run long, and we'll need to wrap up exactly at noon. We
anticipate leaving 10-15 minutes at the end for audience questions, although we'll be prepared to
fill that time with our own questions if the audience is unexpectedly shy.
We propose to have a brief 10-15 minute conference call early next week to discuss the logistics
of the panel and go over the topics/format. Or, since you all are in the same building, we can
come to you and meet briefly in person if you would prefer. Of course, if your schedules will
not permit, we can get by without the call -it is only to ensure that you are comfortable with the
plan, and if you'd prefer not to do it, we are happy to skip.
Assuming we want to have a call, please let me know your availability for a call next
Monday or Tuesday. Please also let me know if there is someone in your office who should
be added to this email chain to assist with substance/logistics.
I know that the audience will enjoy hearing from all of you, and the FCBA and the Annual
Seminar planning committee tremendously appreciate your willingness to join us at the
Homestead (I'm told it's fabulous, but it's still a schlep, so thanks).
Rachael and I look forward to working with everyone and to having a great discussion!
Best regards,
Natalie
From:
Stephens/ Karen <kstephens@ustelecom.org>

Wednesday/ May 14, 2014 12:38 PM
Daniel Alvarez; Rebekah Goodheart; Amy Bender; Nicholas Degani; Priscilla Argeris
Title II Ex Parte -- AS FILED
Title_II_ExParte_Finai_05.14.14.pdf
Sent:
To:
Subject:
Attachments:
I::' d. .
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see t 1Je atrac JTea d.tOCU11."lenr s L.!...e
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DJ ease
1
If you have any questions, please feel free to contact me,
Karen
Karen Stephens
Law and Policy
USTelecom Association
(p) 202.326.7273
kstephens@ ustelecom.org
cV1c( __,Ortrl..1ck",
1 .
. Ch.. 'L .S'T'e1econ1

_;r.,
WALTER B. MCCORMICK. JR.

President and Chief Execllfive Officer
May 14,2014
The Honorable tom Wheeler
445 12th Street, SW
The Honorable Ajit Pai

445 12th Street, SW
The Honorable Mignon Clyburn

445 12th Street, SW
The Honorable Jessica Rosenworcel

445 12th Street, SW
The Honorable Michael O'Rielly

445 12th Street, SW ...
Re:
Open Internet Order Remand Proceeding, GN Docket No. 14-28
;
Dear Mr. Chairman and Members of the
We are deeply concerned by calls for regulation of broadband internet access as Title II
service. As the Commission is aware, Title II has its roots in 1880s railroad regulation a regulatory regime that bankrupted the railroads, left communities without s.ervice, led to
the nationalization of rail carriers in the Northeast, and was repealed by the Congress in
order to save the nation's railroad networks and stimulate investment iii railroad
infrastructure. Indeed, Congress repealed similar regulatory regiffies for air carriers and
motor carriers more than 30 years ago. It is .ironic that more than three decades after
Congress recognized the failure of this regulatory model for the railroads and adopted a
to encourage investment in infrastructure- much like the Clinton FCC did
new
for the Internet- some are calling for this anachronistic 19th Century regulatory regime to
be applied to the 21st Century Internet
Nothing could be more antithetical to the Administration's and the Commission's
interests in broadband investment and deployment, job creation, and economic
growth. In addition, reversing the course the Commission plotted more than a decade ago
by which broadband Internet access service is classified as an infonnation service under
Title I of the Communications Act would pose insurmountable legal hurdles. Finally,
even after the years of litigation that would undoubtedly ensue if the Commission were to
attempt to subject high-speed broadband to a regulatory regime designed in the era of
steam locomotives, Title II would not achieve the pmported.goals identified by advocates
of this approach.
607 14th Stnlet NW, Suite 400 Washington, DC 20005-2051 202.326.7244 T 202.315.3347 F
president@ustelecom.org .
Chairman Wheeler
Commissioner Clyburn
Commissioner O'Rielly
Commissioner Pai
Commissioner Rosenworcel
May 14,2014
Page2
Negative Impact on Investment

Lost in calls to classifY broadband Internet access service as a Title II service is the
negative effect such classification would have on continued broadband investment. In
response to the Commission's decisions treating broadband Internet access service as a
Title I information service subject to a "light regulatory touch," broadband providers
have invested billions of dollars in expanding their networks -a level of investment that
dwarfs that of other industries. In 2013 alone, broadband providers invested more than
$70 billion dollars in broadband infrastructure; over the past decade, investment in
broadband networks totals more than $670 billion.
Proponents of subjecting broadband to Title II regulation !llUSt answer the following
questions: (i) why would broadband network investment and innovation continue under a
Title II regime; and (ii) what incentives would broadband providers have to expand their
infrastructure in the face of regulatory overhang and uncertainty?' Google, for example,
has invested in deploying Title I broadband networks to homes in Kansas City and
elsewhere but has elected not to invest in or provide Title II telephone service to those
same homes. Proponents of Title II also should explain how reclassification would aid in
efforts to promote broadband adoption. For example, under a Title II regime, programs
offering discounted broadband for disadvantaged students, promotional pricing on
and broadband service with added free security software or storage
broadband
capabilities would be jeopardized if subject to tariffing and cost support requirements.
Legal Obstacles to Reclassification

Even assuming broadband network investment and broadband adoption programs would
continue in the face of Title II regulation - a dubious assumption- classifying broadband
service WOUld fOSe significant legal
Internet access service a
.
challenges that proponents of Title II regulation largely ignore.
as
Many of the legal issues that prevent the Commission from lawfully subjecting
broadband Internet access service to Title II regulation have been discussed at length
previously. See, e.g., Letter to Julius Genachowski, Chairman, FCC, from Seth Waxman,
Counsel for the United States Telecom Association, GN Docket No. 09-51 (April 28,
2010); Reply Comments of the United States Telecom Association, GN Docket 10-127
(Aug. 12, 2010). Advocates of Title II regulation have not made any serious attempt to
address these issues.
Chairman Wheeler
Commissioner Pai
May 14,2014
Page3
Although administrative agencies have the discretion to change their policies so long as
they acknowledge and give a reasonable explanation for the change, agencies have a
heightened burden to explain a reversal of course where the ''new policy rests upon
factual findings that contradict those which underlay its prior policy" or its ''prior _policy
has engendered serious reliance interests that must be taken into account. " 2
Classifying broadband Internet access as a Title II telecommunications service would
trigger this heightened burden. The Commission's detennination that broadband Internet
access service constitutes a Title I information service turned on the agency's factual
findings about the way in which broadband providers offer a functionally integrated
service to the public. Reversing that classification decision would necessarily require a .
revised view of the facts and a detailed justification for rejecting the Commission's prior
factual fmdings. This would pose an insunnountable hurdle given that the underlying
facts upon which the
initial classification decision was premised have not
changed.
Indeed, the Commission could not plausibly :find that broadband providers are today
ten. years ago. Broadband providers are still
offering a different service than they
offering Internet access as a functionally" integrated service without a separate
transmission component If anything, Internet access is even more of an integrated
service offering today because broadband providers currently offer their customers -even
more ways to store and retrieve infonnation than ten years ago. Put simply, the
Commission would not have any factual basis to find that
Internet access is
anything other than an information service.
Furthermore, there are serious legal and equitable interests at stake based upon the fact
that, for more than IOyears, broadband internet service providers and investors have
relied upon the Commission's light regulatory touch in making decisions regarding
investment and deployment. As noted above, the industry has invested billions of dollars
in networ.k infrastructure in reliance on the Commission s classification of Internet access
as an information service regulated under Title 1 This has led to a broadband "arms
race," as providers have deployed robust networks in an effort to keep up with their
competitors and offer faster broadband speeds and greater network coverage in an
attempt to secure a competitive advantage.
The network infrastructure required to deliver robust broadband service to millions of
homes and business is not cheap, requiring far more every year than the United States
spent as a country to put a man on the moon or to build the entire interstate highway
FCCv. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009).
Chairman Wheeler
Commissioner Pai
May 14,2014
Page4
system. 3 The degree to which broadband providers commit their resources to investment
in infrastructure is indicated by the comparatively low levels of cash m$tained by these
companies as compared to Internet edge providers that rely on broadband networks. 4
These investments have driven innovative broadband services such as FiOS, U-:.Yerse,
DOCSIS 3.0, L1E, and Gigabit Ethernet; improved-DSL technologies inc1uding ADSL2+
and VDSL; faster satellite broadband; and numerous new Wi-Fi hotspots and cell towers.
Reversing regulatory course at this juncture would upset the reasonable reliance interests
of broadband providers in deploying. these services and guarantee that a reviewing court
would view skeptically any effort to regulate broadband Internet access under Title II.
Even if the Commission were determined to change the way the Internet is regulated, it
would be estopped from changing the facts to .fit its preferred policy goal. Judicial
estoppel bars a party from changing its position after prevailing in an earlier case simply
because its interests have changed. 5 The Commission represented to the Supreme Court
in the Brand X case that broadband Internet access serviCe is a functionally integrated
service and that broadband providers do not offer a separate transmission component 6
The Supreme Court relied upon these representations in upholding the Commission's
classification of broadband Internet access as an information service and not a
telecommunications service. Having convinced the Supreme Court that broadband
providers offer a functionally integrated service without a separate transmission
component, the Commission could not lawfully take a different factual position now.
Title II Would Fail to Achieve the Objectives Sought by its Proponents

Finally, Title IT also is not the absolute bar on "discrimination" that advocates claim.
Because 47 U.S.C. 202 only prohibits "unjust and unreasonable" discrimination, it
would not prevent a broadband provider from offering different service arrangements to
customers, provided these differences were reasonable and such arrangements were made
available to other similarly situated customers.
In addition, Title IT regulation would not cover a telecommunication carrier's dealings

with Internet edge providers (except to the extent those providers chose to purchase the
canier's tariffed transmission services under the Computer Inquiry framework, which
3
http://w,,w.ustelecom.orwbroadband-industry/broadband-industry-stals
The Wall Street Journal, Cash and Equivalents Table, B 1 (Jan. 3, 2011).
Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir. 2010) (citing New
Hampshire v. Maine, 532 U.S. 742, 749 (2001).
6
NCTA v. Brand X Internet Servs., 545 U.S. 967,991 (2005).
Chainnan Wheeler
Commissioner Pai
May 14,2014
Page5
they rarely, if ever, did). This is because "the focus of a 202 inquiry is on
discrimination among custoll,lers" purchasing telecommunications service from a
common carrier. 7 Thus, even if broadband Internet access service were classified as a
telecommunications service under Title IT, Section 202 would not apply to a carrier's
business relationships with a third party purchasing non-telecommunications services,
such as a paid prioritization arrangement with an edge provider. That Section 202 would
not prohibit, let alone even address, the alleged evil about which advocates of Title IT
regulation are allegedly concerned is fatal to this proposed regulatory approach.
The Commission should reject calls to regulate broadband internet access under Title II
as being inconsistent with national objectives, established law, and the public interest.
Sincerely,
c: Daniel Alvarez
Rebekah Goodheart
Amy Bender
Nicholas Degani
Priscilla Delgado Argeris
Z-Tel Communications, Inc. v. SBC Commwdcations Inc., 331 F. Supp.2d 513,

556 (B.D. Tex. 2004); accord Sixth Memorandum Opinion and Order, Petition for
Forbearance ofthe Indep. Tel. & Telecomms. Alliance, 14FCC Red 10840, C)[ 10 (1999)
("section 202 of the Act ... prohibits unreasonable discrimination among customers and
rates that are unjust and unreasonable"); Notice of Proposed Rule Making, Bundling of
Cellular Customer Premises Equip. and Cellular Serv., 6 FCC Red 1732, C)[ 2 n.2 (1991)
("Section 202(a) of the Act prohibits carriers from discriminating unreasonably among
customers in the 'charges, practices, classifications, regulations, facilities, or services' for
'like' communication service.'').
From:
Sent:
To:
Subject:
Attachments:
MCKOY, GLENIS <gm909g@att.com>

Wednesday, May 14, 2014 11:02 AM
Jonathan Sallet; Daniel Alvarez; Nicholas Degani; Amy Bender; Rebekah Goodheart;
Priscilla Argeris
AT&T Open Internet Ex Parte
5-14-14 Ex Parte Letter Confirmation.pdf
Good Morning All:

Attached please find AT& T's Ex Parte Letter filed this morning with the FCC regarding Open Internet. If you have
questions, please contact Robert Quinn at 202-457-3851. Thanks!
Glenis McKoy
Executive Assistant
Office of the Senior Vice PresidentFederal Regulatory and Chief Privacy Officer
AT&T Services, Inc.
1120 20th Street, NW Suite 1000
Phone-202-457-2080
Fax-202-457-2020
This e-mail and any files transmitted with it are AT&T property, are confidential, and are intended solely for the
use of the individual or entity to whom this email is addressed. If you are not one of the named recipient(s) or
otherwise have reason to believe that you have received this message in error, please notify the sender and
delete this message immediately from your computer. Any other use, retention, dissemination, forwarding,
printing, or copying of this e-mail is strictly prohibited.
Robert W. Quinn, Jr.

Senior Vice President
Federal Regulatory and
Chief Privacy Officer
AT&T Services, Inc.

1120 201h St. NW, Suite 1000
Phone 202 457-3851
Fax 202 457-2020
May 14,2014
VIA ELECTRONIC SUBMISSION
Marlene H. Dortch
Secretary
44512th Street S.W.
Re:
Open Internet, GN Docket No. 14-28
Dear Ms. Dortch:

Last Friday, AT&T filed an ex parte identifying some
many issues raised by, and
risks and harms that could result from, reclassification of broadband Internet access services as a
Title ll telecommunications services. 1 We
pointed out the folly of running these risks
insofar as reclassification would not prevent paid prioritization arrangements, which
reclassification proponents have seized upon to generate hysteria and support for their cause.
Instead of engaging on the substance of these concerns, Free Press and others attempt to brush
them under the carpet with the facile.claim that forbearance can fix everything. 2 But as AT&T
noted, the prospect of countless, reversible forbearance determinations- not to mention .
litigation over these decisions and over reclassification itself- would create massive ongoing
uncertainty that would fly in the face of tl1e Administration's goal of promoting broadband
investment. And in all events, forbearance would not adqress the many serious implications of
reclassification.
For example, if the FCC found that broadband Internet access contains a separate
telecommunications service component, what would be the logical or legal basis on which the
Commission could distinguish that information service from other information services
provided in the Internet ecosystem or otherwise? If broadband Internet access providers offer
1 Letter of Robert W. Quinn, Jr., AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed May 9,
2014) (May gth Ex Parte).
2 Jon Brodkin, AT&T claims common carrier rules would ruin the wlwle Internet, Ars Technica (May 9, 2014) ("'As
usual, AT&T' s positions are laughable at best-though disingenuous is more like it,' Matt Wood, policy director of ..
consumer advocacy group Free Press, told Ars. 'Nothing in Title II says that every last provision has to apply to any ./
Title II service. That's the whole point of forbearance. The fact that broadband providers could be entitled to
j
something doesn't mean they actually are entitled to it, or that AT&T' s cost-causation story is true."'), available at'
htlp:/larstecbnica.com/tech-policy/20 14/05/att-claims-common-carrier-rulcs-would-min-the-whole-internet! (last
checked May 13, 2014). !d. ("Public Knowledge Senior VP Harold Feld agreed. 'To a large extent, this is just
scary mumbo-jumbo to make Title II loop big and complicated,' Feld told Ars.").
telecommunications services to consumers, why don't other entities that combine transmission
with information processing or storage likewise provide telecommunications services? This is
no idle co:qcern. The Commission itself, in its seminal Stevens Report, noted this very issue:
"[I]f we interpreted the statute as breaking down the distinction between information services
and telecommunications services, so that some information services were classed as
telecommunications services, it would be difficult to devise a sustainable rationale under which
all. or essentially all, information services did not fall into the telecommunications service
category. " 3 Thus a broad array of entities that provide transmission over the Internet as a
component of what is today considered only an information service might find themselves
subject to Title II to the same extent as providers of mass market broadband Internet access
services. This includes entities that provide Internet connectivity to application and content
providers, content dellvery networks, transit providers, providers of services over connected
devices, like Amazon, General Motors and others, search engines connecting an advertising
network to a search request, and email providers and social networks that enable chat or
messaging sessions. 4 Anyone concerned with "saving the Internet" should be alanned by that
sobering possibility.
Although this particular consequence alone should stop consideration of reclassification
in its tracks, it is by no
the only issue of concern raised by the possibility of
reclassification. AT&T's May gth Ex Parte attempted to identify some of the other issues to
point out that reclassifying broadband Internet access as a Title II service would open a
regulatory Pandora's box. But, this was not even a definitive list of issues; there are many others
that warrant consideration. For example, as tlie Commission noted in the Stevens Report, "[t]he
classification of informatiO"n service providers as telecommunications carriers ... could
encourage states to impose common-carrier regulation on such pr.oviders. Although section
10(e) of the Act precludes a state from applying or enforcing provisions of federal law where the
Com:Cnission has determined to forbear, it does not preclude a state from imposing requirements
derived from state law."5 Moreover, as the Commission further noted, "while it has authority to
forbear from unnecessary regulation, foreign regulators may not have comparable deregulatory
authority to avoid imposing the full range of telecommunications regulation on information
services.'' 6
There are also issues as to how forbearance could be implemented. For example,' can the
Commission forbear from substantially all of Title ll on a blanket basis, or would the
Commission have to separately iaentify each and every statutory provision and regulation under
3 Federal-State
Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13.FCC Red 11501,
11529, para. 51 (1998) (Stevens Report).
It would be no answer to claim that some of these entities do not provide telecommunications "for a fee." In
interpreting the phrase "for a fee" in the definition of "telecommunications service," the Commission haS concluded
that the plain language of the statute means services rendered in exchange for something of value or a monetary
payment Federal-State Joint Board on Universal Service, CC Docket No. 96-45, First Report and Order, 12 FCC
Red 8776, 9177, para. 784 (1997). Every commercial entity offering services or content over the Internet does so
for something of value, whether it's a cash payment or the ability to obtain and monetize data about its customer or
their usage of the Internet.
4
5 Stevens Report at para.
48 .
. 6 Jd.
Title II and separately apply the three-part forbearance test to each. We note, in this regard, that
the Commission requires precisely that level of disaggregation in forbearance petitions.
To the extent the Commission is not closing the door to Title II reclassification in its
NPRM, the Commission must ask questions and obtain a record regarding these and other
implications of reclassificaqon and what all this means for the future of the Internet and the goal
of promoting broadband investment and deployment. The Commission also should seek
comment on how Title II reclassification could possibly even prevent paid prioritization. As we
noted in our May 9 Ex Parte, even dominant carriers have long been pennitted to provide paid
no theory under which section 202 could be
prioritization under Title II, and AT&T is
stretched to provide a basis for a blanket ban on paid prioritization. Even Free Press appears to
concede that, although Free Press claims that section 201 could accomplish through the back
door what section 202 cannot. That argument, however, is frivolous: section 202 specifically
addresses what types of discrimination are pennitted and what types are not by a
telecommunications service provider. Wholly apart from the fact that it would be impossible to
show that paid prioritization arrangements are inherently (or even generally) unreasonable, a
general prohibition on unreasonable practices in section 201 cannot trump the more specific
language in section 202.
These issues are just the tip of the iceberg of those raised by Title II reclassification. It is
imperative that the Commission fully explore all of these issues if it is to give any further '
consideration to reclassification proposals. Proponents of reclassification have been effective in
stirring up mass hysteria with misleading pronouncements, and dismissing skeptics with derisive
comments and loose rhetoric. But the issues presented are too important to be trumped by
politics and protestors banging pots and pans in front of the FCC. Real engagement on real
issues is necessary, and if this issue is to be revived, the NPRM must set that process in motion.
Respectfully Submitted,
/s/ Robert W. Quinn, Jr.
cc:
Jonathan Sallet
Daniel Alvarez
NickDegani
Amy Bender
Rebekah Goodheart
....
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14-28
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Protecting and Promoting the Open
Internet
III,I
Contact Info
Name of Filer: AT&T Services, Inc.
Email Address: shandee.r.parran@att.com
Attorney/Author Name: Robert W. Quinn, Jr.
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5/14/2014
..
[mallto:politicoemail@oo!lticopro.coml
Sent: Wednesday1 May 14, 2014 1:25PM
To: Rebekah Goodheart
subject: AT&T issues new warning to FCC on net neutrality
5/14114 1:24PM EDT
AT&T is warning the FCC not to be swayed by "mass hysteria" from groups that want the agency to reclassify
broadband as a utility. .
"Proponents of reclassification have been effective in stirring up mass hysteria with misleading
pronouncements, and dismissing skeptics with derisive comments and loose
wrote AT&T
Regulatory Vice President Robert Quinn in a Jetter to the agency today. "But the issues presented are too
important to oe trumped by politics and protestors banging pots and pans in front of the
Wheeler's latest net neutrality proposal would seek public comment on treating broadband as a utility, an option
known in FCC jargon as Title 1!. AT&T joined other major telecoms in a letter Tuesday warning the FCC to
avoid that option.
Reclassification "would create massive ongoi,ng uncertainty that would fly in the face of the Administration's
goal of promoting broadband investment," Quinn said, noting "even dominant carriers have long been permitted
to provide paid prioritization under" the Communications Act.
-Brooks Boliek
You've received this. POLITICO Pro content because your customized settings include: Technology
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at&t
Robert W. Quinn, Jr.

AT&T Services, Inc.

1120 20th St NW, Suite 1000
Phone 202 457-3851
Fax 202
May 14,2014
. VIA ELECTRONIC SUBMISSION
Marlene H. Dortch
Secretary
Federal Coiomunications Commission
445 12th Street S.W.
Re:
Open lntemet, GN Docket No. 14-28
Dear Ms. Dortch:

Last Friday, AT&T filed an ex parte identifying some of the many issues raised by, and
Title II telecommunications services. 1 .We further pointed out the folly of
these risks
them under the caxpet with the facile claim that forbearance can fix everything. 2 But as AT&T
noted, the prospect of countless, reversi-ble forbearance determinations- not to mention
uncertainty that would fly in the face of the Administration's goal of promoting broadband
investment. And in aiJ events, forbea.rance would not address the many serious implications of
reclassification.
telecommunications service component, what would be the logical or legal basis on whicp the
l Letter of Robert W. Quinn, Jr., AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed May 9,
2014) (May 9'h Ex Parte).
2 Jon
Brodkin,AT&Tclairrzs common carrier rules would ruin. the whole Internet, Ars Technica (May 9, 2014) ("'As
usual, AT&T's positions are laughable at best-though disingenuous is more like it,' Matt Wood, policy director of
consumer advocacy group Free Press, told Ars. 'Nothing in Title II says that every last provision has to apply to any
Title TI service. That's the whole point of forbearance. The fact that broadband providers could be entitled to
something doesn't mean they actually are entitled to it, or that AT&T's cost-causation story is true.'"), available at
htto://arstechnica.com/tech-policy/2014/05/att-claims-common-cnrrier-rules-would-ruin-the-whole-internetl (last
checked May 13, 2014). ld. ("Public Knowledge Senior VP Harold Feld agreed. 'To a large extent, this is just
scary mumbo-jumbo to make Title II loop big and complicated,' Feld told A:rs.").
no idle concern. The Commission itself, in its seminal Stevens Report, noted this very issue:
"[l]f we interpreted the statute as breaking down the distinction between information services
and telecommunicatidns services, so that some information services were classed as
ali, or essentially all, information services did not fall into the tele.communications service
category.''3 Thus a broad array of entities that provide transmission over the Internet as a
component of what is today considered only an information servi_ce might find themselves
subject to Title 1I to the same extent as providers of mass market broadband Internet access
providers, content delivery networks, transit providers, providers of services over connected
messaging sessions. 4 Anyone concerned with "saving the Internet'' should be alarmed by that
in its tracks, it is by no means the only issue of concern raised by the possibility of
reclassification. AT&T's May!!" Ex Parte attempted to identify some of the other issues to
point out that reclassifying broadband Internet access as a Title IT service would open a
that warrant consideration. For example, as $e Commission noted in the Stevens Report, "[t]he
classification of infonnation service providers as telecommunications carriers ... could
encourage states to impose common-carrier regulation on such providers. Although section
IO(e) of the Act precludes a state from applying ot enforcing provisions of federal law where the
Commission has detennined to forbear, it does not preclude a state from imposing requirements
derived. from state law .''5 Moreover, as the Commission further noted, "while it has authority to
authority to avoid imposing the full range of telecortununications regulation on infonnation
services.'' 6
There are also issues as to how forbearance could be implemented. For example, can the
Commission forbear from substantially all of Title on a blanket basis, or would the
Commission have to separately identify each and every statutory provision .and regulation under
Federal-State Joint Board on. Universal Senice, CC Docket No. 96-45, Report to Congress, 13 FCC Red 11501,
l 1529, para. 57 (1998) (Stevens Report).
4 It would be no answer to claim that some of these entities do not provide telecommunications "for a fee.'! In
interpreting tbephrase "for a fee" in the definition of"telecommunications service,'; the Commission has concluded
payment Federal-State Join! Board on Universal
CC Docket No. 9645, First Report and Order, 12 FCC
Rcd8776, 9177, para. 784 (1997). Every commercial entity offering services or content over
Internet does so
their usage of the Internet
5 Stevens Report at para.
4S.
6 Id.
Title 1I and separately apply the three-part forbearance test to each. We note, in this regard, that
in forbearance petitions.
the Commission requires precisely that level of
To the extent the Commission is not closing the door to Title 1I reclassification in its
NPRM, the Commission. must ask questions and obtain a record regarding these and other
implications of reclassification and what all this means for the future of the Internet arid the goal
of promoting broadband investment and deployment The Commission also should seek
possibly even prevent paid prioritization. As we
comment on how Title II reclassification
noted in our May 9 Ex Parte, even dominant carriers have long been permitted to provide paid
prioritization under Title IT, and AT&T is aware of no theory under which section 202 could be
addresses what types of discrimination are permitted and what types are not by a
show that paid prioritization arrangements are inherently (or even' generally) unreasonable, a
general pr.ohibition on unreasonable practices in section 201 cannot trump the more specific
imperative that the Commission fully explore all of these issues if it is to give any further
stirring up mass hysteria with misleading pronouncements. and dismissing skeptics with derisive
Respectfully Subrni tted,
/s/ Robert W.. Quinn, Jr.
cc:
Jonathan Sallet
Daniel Alvarez
Argeris
Priscilla
NickDegani
Amy Bender
Rebekah Goodheart
Page 1 of 1
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Subject
14-28'
Internet
Name
Contact Info

Email Address: shandee.r.parran@att.com
Address
Address For:
Address Line 1:
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City:
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I'
I
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Filer
1i 20 20th Street, NW
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5/14/2014
From:
MICHAEL F [mailto!mb8156@att.com]
Sent: Thursday1 May 151 2014 2:41PM
To: BALMORIS1 MICHAEL F
AT&T Open Internet Statement
. , ::-:.:'s . .c . . ...
.)-
Posted by:
. r
........
T Blog Team on Ma}t '15, 2014 at 2:38pm
The following may be attributed to Jim Cicconi, AT&T Senior ExecutiVe Vice President of External and
Legislative Affairs:
"AT&T is committed to an Open Internet. We supported the Commission's 2005 Open lntemet Policy
Statement, as weff as the Commission's 2010 Open Internet Rules whiph codified that policy. Our network
management practices are designed to comply with those rules. Those practices are described on our website
today, in accordance with FCC rules that were not vacated by the DC
and are still today fully
enforceable by the FCC. In short, broadband customers throughout the United States have access to A.T&T's
open b/'oadband networks which comply fulfy with Open Internet principles that have been In place for almost a
decade.
'The framework adopted by the Commission in 2010 achieved a delicate balance that ensures openness, while
m$intaining a stable environment for investment. As a
infrastructure providers have invested hundreds of
billfons of dollars to provide American consumers with the most robust wiretine and wireless broadband
networks in the world.
uThis debate has been falsely labeled as a debate over fast lanes and slow lanes. It is not about that at all. This
debate is over whether we will continue to foster an
environment that has allowed US companies to
build the world's best networks so that all c:onsumers can have the fastest Internet lanes in the world.
"Going backwards 80 years to the world of utility regulation would represent a tragic step in the wrong direction.
Utility regulation would strangle Investment, hobble innovation, and put government regulators in charge of
nearly every aspect of Internet-based services. It would deprive America of the world's most robust broadband
infrastructure, and place a cloud over every application or website that delivers products and content to
consumers. In short. it would place government in control of the Internet at U;e expense of private companies,
inventors and entrepreneurs, and ultimately at the expense of the American peopre.
an approach would also send an afarming message to the rest of the world-a message that says the
United States believes it is appropriate for governments to place onerous regulations on the lntemet. This could
encourage other countries to pursue their own goals, whether to suppress 'dangerous' speech or extract
economic value from American Internet and content companies.
1
Zachem, Kathy < Kathy_Zachem@Comcast.com>

Thursday, April 24, 2014 11:37 AM
Philip VeNeer
Fw: TOMORROW: Discussion with Brad Burnham of USV re: Network Neutrality]
From:
Sent:
To:
Subject:
Fyi- please do not forvvard with my e-mail reference thanks

Kathy
From: Dickinson, Lindsey

Sent: Thursday, April 24, 2014 11:31 AM Eastern Standard Time
To: Zachem, Kathy; Maxfield, Melissa
Subject: TOMORROW: Discussion with Brad Burnham of USV re: Network Neutrality]
Dear Republican Telecommunications Staffers:

Tomorrow, I would like invite you to a discussion with Brad Burnham, a co-founder of and partner at
venture capital fund Union Square Ventures. He and Fred Wilson, his co-founder and partner at USV,
were early investors in Twitter, Tumblr, !<ickstarter, Zynga, Foursquare, Boxee and other Internet
household names.
Brad and Fred are heroes in the entrepreneurship community, and their yvord carries enormous
weight. Brad and Fred have been very vocal supporters of network neutrality. You can read some of
their writing on the topic here: https://www.usv.com/posts/internet-access-should-be-applicationagnostic and http://avc.com/2014/01 /vc-pitches-in-a-year-or-two/.
Brad and his partners, along with many in the entrepreneurial and startup world, are very concerned
about the FCC's current plans related to the network neutrality framework. I am planning to visit with
them but I also wanted to extend the offer to other staffers. Senator Moran, Brad and I met a few
years back at SXSW.
Please forward this to whomever might be interested in the discussion. Also, please RSVP to me via
calendar invite if you would like to join.
Discussion with Brad Burnham, Union Square Ventures

Re: network neutrality and economic growth
Location: Russell 361A (Sen. Jerry Moran's office)
Time: 3:30pm to 4:30pm
RSVP: Mark Colwell- mark colwell@moran.senate.gov (I will send a calendar invite around to
make it easier)
Thanks,
uVI!ark CouweH
Legislative Assistant
U.S. Senator Jerry fVJoran, Kansas
361A Russell Senate Office Building
Phone (202) 224-6521 I Fax (202) 228-6966
rtf
..
'You
,,
lil:]t . .:
1
From:
Sent:
To:
Subject:
Zachem, Kathy < Kathy_Zachem@Comcast.com>

Thursday, April 24, 2014 3:24 PM
Philip Verveer
Fyi
This to go out from upton and walden shortly:

"We have said repeatedly that the Obama administration's net neutrality rules are a solution in search of a problem. The
marketplace has thrived and will continue to serve customers and invest billioi1s annually to meet Americans' broadband
needs without these rules. Chairman Wheeler's approach to regulation seeks to freeze current market practices, which will
cast a chill on technological breakthroughs and cause American consumers to lose out."
Upton and Walden continued, "Further underscoring the needlessness of the rules, Internet service providers have made
clear they will continue to adhere to the spirit of the rules that were already struck down by the courts. It is well past time
for the commission to focus on areas where its work will foster new innovation, competition, and job creation."
1 .
From:
Sent:
To:
Subject:
Zachem, Kathy <Kathy_Zachem@Comcast.com>

lylonday May 12 2014 10:15 AM
Zachem/ Kathy
Open Internet/ GN Docket No. 14-28
1
FYI. Please call if you have any questions.

Kathy
Kathryn A Zachem
Senior Vice President, Regulatory & State Legislative Affairs
Comcast Corporation
300 New Jersey Avenue, NW, Suite 700
Phone: 202-379-7134
Fax:
202-379-7149
Kathy Zachem@Comcast.com
Assistant: Donna Crichlow- 202-379-7118- Donna Crichlow@Comcast.com
From:
Sent:
To:
Subject:
Attachments:

Monday, May 12, 2014 10:13 AM
Priscilla Argeris; Amy Bender; Nicholas Degani; Rebekah Goodheart; Diane Cornell;
Matthew DelNero; Ruth Milkman; Jonathan Sallet; Gigi Sohn; Philip Verveer; Stephanie
Weiner
5 12 14 Open Internet FCC Ltr.pdf
FYI. Please ca II if you have any questions.

Kathy
Kathryn A. Zachem
Senior Vice President, Regulatory & State Legislative Affairs
Comcast Corporation
washington, DC 20001
Phone: 202-379-7134
Fax:
202-379-7149
Kathy Zachem@Comcast.com
Assistant: Donna Crichlow- 202-379-7118- Donna Crichlow@Comcast.com
Kathryn A Zachem
Comcast Corporation
.300 New Jersey Avenue, NIN
Suite 700
\fi!ashing!on. DC 20001
COM CAST
202.379.7134
May 12,2014
Marlene H. Dortch
Secretary
Re:
Protecting and Promoting the Open Internet, GN Docket No. 14-28
Dear Ms. Dortch:

Com cast has been a strong proponent of Internet openness, and, indeed, is the only broadband
provider subject to a legally binding obligation to refrain from blocking consumers' access to lawful
web content and services or from engaging in unreasonably discriminatory conduct. 1 While Comcast
continues to be a steadfast supporter of openness and remains confident that the Commission can
appropriately balance consumer protection with the need to allow network operators to manage their
networks reasonably, we believe that any proposal by the FCC to reclassify broadband Internet access
as a telecommunications service subject to Title II of the Communications Act would be a
destabilizing and counterproductive means of pursuing those important objectives.
Starting with the Cable Modem Declaratory Ruling in 2002, the Commi.ssion has consistently
ruled that broadband Internet access services inextricably combine transmission and information
processing, such that they are properly characterized as information services. without any severable
telecommunications service component. 2 In the wake of those decisions, and in express reliance on
the Commission's determination that common carrier regulation does not (and should not) apply, cable
operators and other Internet service providers have invested hundreds of billions of dollars to deploy
increasingly robust broadband networks, laying the groundwork for an explosion of innovation in the
1
Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent to Assign
Licenses and Transfer Control of Licensees, Memorandum Opinion and Order, 26 FCC Red 4238, 94 (2011).
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Declaratory Ruling and
Notice ofProposed Rulemaking, 17 FCC Red 4798 (2002); see also, e.g., Appropriate Framework for Broadband
Access to the Internet over Wireline Facilities, Report and Order and Notice ofProposed Rulemaking, 20 FCC
Red 14853 (2005) (classifying wireline broadband services as information services); Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Red 5901
(2007) (classifying wireless broadband services as information services).
Ms. Marlene H. Dortch

May 12,2014
Page2
Internet ecosystem. This is the foundation on which the extraordinary Internet economy that is the
envy of the world emerged and thrived. Any effort to upend that settled legal framework-which has
been supported by Commissions and Administrations led by both parties-would be enormously
disruptive: It would deter the many billions in additional investment required to connect all Americans
and to continue increasing speeds, while subjecting the industry and the Commission to years of
debilitating litigation and resulting uncertainty. Just ten years ago, the Commission and the
Department of Justice expressly recognized these risks and went to considerable lengths to avoid the
imposition of common carrier regulation precisely because "[t]he effect of the increased regulatory
burdens" likely would have been to prompt ISPs to "postpone or forego plans to deploy new
broadband infrastructure, particularly in rural or other underserved areas." 3 The last thing the
Commission should do at this stage is to break from the long bipartisan approach that has borne such
fruit to date and radically shift to an approach that would curtail broadband investment and impede
adoption. 4
Fortunately, risking such harms is entirely unnecessary. The D.C. Circuit has now confirmed
the Commission's power to prohibit blocking and to ensure commercially reasonable business
arrangements between access providers and edge providers pursuant to Section 706 of the
Telecommunications Act of 1996, ending a sustained period of uncertainty regarding the
Commission's authority to adopt rules to enforce Internet openness. 5 While the Commission
understandably had contemplated reclassification theories before the court upheld its authority to
regulate information services, it would make no sense to pursue such a high-risk path now that the
D.C. Circuit has validated the Commission's analysis of potential threats to Internet openness and held
that the Commission has ample power to prohibit anticompetitive conduct and prevent harm to
consumers.
Moreover, even apart from the substantial legal impediments to abandoning classification
decisions grounded in factual findings on which the industry has relied for more than a decade, the
purported benefits of invoking Title II as compared to relying on Section 706 are illusory. There is no
way to predict how a court would rule on a challenge to imposing Title II, and, in any event, Title II
would not necessarily support greater constraints on Internet practices. Common carriers are
prohibited only from engaging in unreasonable discrimination, 6 and the relevant precedent makes
clear that this standard entails substantial flexibility to differentiate among customers for legitimate
Petition for Writ of Certiorari, U.S. Dept. of Justice and FCC, FCC v. Brand X Internet Servs., No. 04-277, at 2526 (Aug. 27, 2004). The Department of Justice and the Commission further recognized that the Commission's
"forbearance authority is not in this context an effective means ofremov[ing] regulatory uncertainty that in itself
may discourage investment and innovation"). Jd at 28 (internal quotation marks omitted).
See, e.g., Progressive Policy Institute, America's Digital Policy Pioneers, video recording at
http://www. progressivepolicy .org/20 13/12/americas-digital-policy-pioneers/ (including former Chairman
Kennard's endorsement of bipartisan commitment to avoiding heavy-handed regulation of broadband Internet
access services).
5
Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

47 U.S.C. 202(a).
Ms. Marlene H. Dmich

May 12, 2014
Page 3
business reasons. 7 Thus, to the extent that fears about "paid prioritization" arrangements are driving
calls for Title II reclassification, such arrangements would have to be assessed on a case-by-case basis
(iikely subject to general standards promulgated by the Commission) under Title II, just as under
Section 706.
At the same time, reclassifying broadband Internet access services under Title II would risk a
host of unintended consequences that proponents of such regulation have scarcely contemplated. For
example, as others have pointed out, reclassification could subject a broad range of currently
unregulated parties to burdensome obligations designed for monopoly telephone companies, import the
dysfunctional access charge regime to the exchange of Internet traffic, and halt the sharing of
infonnation necessary to many. edge providers' business models, among various other problems. 8
As Chairman Wheeler has recognized, the Verizon decision offers the Commission an ideal
opportunity to devise judicially sustainable, consensus-driven Open Internet rules pursuant to Section
706. In stark contrast, any effort to reclassify broadband Internet access (in whole or in part) under
Title II would spark massive instability, create investor and marketplace uncertainty, derail planned
investments, and slow broadband adoption. It is hard to imagine a more perilous recipe for pursuing
the critical national objectives set forth in the National Broadband Plan. The Commission should not
put at risk a rare bright spot in the American economy that has been a key engine of economic and jobs
growth. Comcast urges the Commission to propose rules that will safeguard the Open Intemet
pursuant to the authority upheld by the D.C. Circuit, rather than pursuing an approach that would only
undermine the public interest objectives at stake.
Sincerely,
Is/ Kathryn A. Zachem

Kathryn A. Zachem
Senior Vice President,
Regulatory and State Legislative Affairs
Comcast Corporation
See, e.g., Orloffv. FCC, 352 F.3d 415 (D.C. Cir. 2003) (upholding carriers' ability to offer differential discounts to
retail customers); Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994) (upholding carriers'
ability to enter into individualized contracts); Ameritech Operating Cos. Revisions to Tariff FCC No. 2, Order, DA
94-1121 (CCB 1994) (upholding reasonableness of rate differentials based on cost considerations).
See, e.g., Letter ofRobert W. Quinn, Senior Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, at 4-5 (May 9, 2014).

May 12,2014
Page4
cc:
Priscilla Argeris
Amy Bender
Nicholas Degani
Rebekah Goodheart
Diane Cornell
Matthew DelNero
Ruth Milkman
Jonathan Sallet
Gigi Sohn
Philip Verveer
Stephanie Weiner
From:
Sent:
To:
Subject:
Zachem, Kathy < Kathy_Zachem@Comcast.com >

Thursday, May 15, 2014 12:36 PM
Jonathan Sallet;
Sohn; Philip Verveer; Ruth Milkman
FW: Comcast Blog: FCC Begins Open Internet Rule Process
fyi
From: Fitzmaurice, Sena
Sent: Thursday, May 15, 2014 12:12 PM

To: Fitzmaurice, Sena
Subject: Comcast Slog: FCC Begins Open Internet Rule Process
FCC Begins Process to Establish Strong, legally Enforceable Open Internet Rules
By David L. Cohen, Executive Vice President
Today, the FCC voted to take the first step in what will be a months long comment and review process to establish
strong, legally enforceable Open Internet rules. As Commissioners noted, this Notice of Proposed Rulemaking (NPRM) is
just an initial step to examine what the rules should ultimately be, and there will be significant time to study the NPRM,
and for public input and comment before the final rules are voted on by the Commission later this year.
Comcast remains committed to a free and open Internet and working with the FCC on appropriate rules for all players
across the industry. Currently, Comcast is the only company in America that is legally bound by the FCC's now vacated
Open Internet rules. And we've promised to extend the Open Internet rules to millions of new customers in cities from
New York to Los Angeles through our transaction with Time Warner Cable.
A free and open Internet stimulates competition, promotes innovation, fosters job creation, and drives business. We
supported the FCC's 2010 Open Internet rules because they struck the appropriate balance between consumer
protection and reasonable network management rights for ISPs. Our customers want a secure and open Internet, we
are committed to delivering on our promise to ensure that experience, and we are comfortable supporting appropriate,
legally enforceable open Internet rules.
We remain confident that the Commission will continue to appropriately balance its strong commitment to consumer
protection with the need to allow network operators to manage their networks reasonably and to continue to
encourage private investment in our nation's broadband infrastructure. As strongly as we believe in the propriety of
legally enforceable open Internet rules, however, we have an equally strong belief that any proposal to reclassify
broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark
massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption,
and kill jobs in America.
For over a decade, Commissions and Administrations led by both parties have consistently ruled that common carrier
regulation does not (and should not) apply to the broadband Internet industry. As a result, cable operators and other
Internet service providers have invested hundreds of billions of dollars to deploy increasingly robust broadband
networks, laying the groundwork for an explosion of innovation in the Internet ecosystem, and fostering the creation of
millions of jobs. Any effort to upend this legal framework would most certainly be subject to years of litigation with
uncertain outcomes that would risk decreased investment and derail the American economic success story.
1
We look forward to working with Chairman Wheeler and the Commissioners to play a constructive role in finding an
appropriate regulatory balance going forward that will ensure the internet remains vibrant and open for all Americans.
For more information about Comcast's commitment to net neutrality visit:
http://corporate.comcast.com/twctransaction/net-neutrality-together
From:
To:
Cc:
Subject:
Date:
...
'
mko(a)nct?t.corn11
Ruth Milkmim
Remarks
Wednesday, April 30, 2014 11:04:22 AM
Ruth is going to send you the speech . It follows the message of yesterday's blog so shouldn't be a
surprise.
As I told you Yesterday, I Intend to be direct. If you want to talk about these points in our discussion
that's fine with me.
From:
To:
subject:
Date:
Attachments:
Fw: Fwd: NCTA President & CEO Michael Powell"s Keynote Remarks at The Cable Show 2014
Tuesday, April 29, 2014 4:34:16 PM
5CF955p2-BF68-426C-AD27200CD3E3306S.ong
5Cf956D2BF68426CAD27200CD3E33068.ono
------------ -- -- .... - -
MichaelGreat speech! Very statesmanlike challenge to your industry while putting things in perspective.
FYI, I'm going to get pretty direct about the Open Internet tomorrow. The press is full of misinformation
andl'm going to use the visit to the largest broadband providers to deliver a message that shows that
the perception th.at we're gutting Open Internet is wrong.
From: Maria Kirby

April29, 2014 04:03PM
T
Ruth Milkman; Jonathan Sallet; Philip Verveer; Shannon Gilson; Gigi Sohn; Neil Grace
Su
Fw: Fwd: NCTA President & CEO Michael Powell's Keynote Remarks at The Cable Show 2014
From: James Assey [mailto:JAssey@NCTA.com]
Sent: Tuesday, April 29, 2014 03:44PM

To: Maria Kirby
Subject: Fwd: NCTA President & CEO Michael Powell's Keynote Remarks at The Cable Show 2014
FYI. Michael's keynote delivered today.
Begin forwarded message:
From: Media Outreach <MediaOutreach@NCTA.com>

Date: April 29, 2014 at 10:57:32 AM PDT
Subject: NCTA President & CEO Michael Powell's Keynote Remarks
at The Cable Show 2014
cid:3C6A8E8C-9806-4FF9-9CD6-FAA7E8437860
CONTACT: Brian Dietz/Joy Sims
FOR IMMEDIATE RELEASE
April 29, 2014
202-222-2350
NCTA President & CEO Michael Powell's Keynote Remarks at The Cable Show
2014
April29, 2014
Good Morning.
The world is an ailing place.
Too many people live in poverty. Too many are hungry. And too many are receiving inadequate
Nation is a land of opportunity is being threatened
education. The core American ideal that
because our economy is not producing the jobs Americans need to get ahead.
In Washington-t11e seat of our federal government-our leaders struggle to make this country a
better place.
mix of ideas and
But rather than compromise, we see conflict as warring sides battle over
policies are best, causing most legislative efforts to whither.
I am not wise enough to know what cocktail of policies will take us forward. I do know, however,
that whatever the path is to a better society, it will ride on the bedrock of strong communities.
It is shared experience, collective consciousness and mutual destiny that drives a people forward.
These forces trigger transformative movements-whether the civil rights movement or the rapid
change in attitudes toward gay marriage.
"One nation under God, indivisible" is the pledge of a people that knows its destiny lies in its
unity and not in its divisions.
What distinguishes the human race is our ability to communicate with one another and to feel
the pain and emotions of one another.
You might say we talk; therefore we are, with all apologies to Descartes.
What does any of this have to do with all of us assembled here today? It's the fact that
community, building a community of shared values requires a network. Communal cohesion
needs a fabric that empowers and enables the best nature of man to discover, connect and act
Tying nodes together ties families together, ties communities together and even ties nations
together.
There is an experiment underway called the Global Consciousness Project. The Project has set up
random number generators all around the world. Scientists have observed that when there are
major world events that focus the thoughts of the world's population, like the attacks of 9/11,
the numbers stop being random and instead show clear patterns. Evidence of multiple minds
thinking as one.
Sounds fascinating. And if really true, it sure blows away Facebook and Twitter for sharing
thoughts, and the billions spent for "Whatsapp" seems like money down the drain!
Wow, maybe someday these experiments will prove our ability to communicate directly through
our thoughts. But, for now, at least, we lack the ability to harness telepathic communications.
Instead we rely on man-made networks, with its wires, fiber strings, towers, poles, routers and
airwaves that our companies provide.
When we deploy networks to our citizens, we strengthen the bonds of families and communities.
We lay the platform for collaboration and collective learning. We spark the cylinders of
innovation. And, to be dramatic, we help light the lamp of hope that "We the People" can find
solutions to the problems that plague our society.
Around the 1500s, ships began to cross the seas. The oceans and waterways accelerated the flow
of information. From horse carriage, to steam engines, to the telegraph, and to fiber optics
today, the power of networks has grown exponentially.
The human voice can qnly travel 600 feet, but with technology it can now travel the globe at the
speed of light, carrying the word of commerce, the learnings of academia, the sadness of a loved
one's passing, and the joy of a baby's birth.
In the Industrial Age, human knowledge doubled every 150 years. Today it doubles every two
years. By 2020 it is expected to double every 72 hours. As we accelerate human knowledge and
learning, the potential for a vibrant, just and inclusive society grows.
Everyone sees the power, potential and importance of the Internet. It is the Internet's essential
nature that fuels a very heated policy debate that the network cannot be left in private hands
and should instead be regulated as a public utility; following the example of the interstate
highway system, the electric grid and drinking water. The intuitive appeal of this argument is
understandable, but the potholes visible through your windshield, the shiver you feel in a cold
house after a snowstorm knocks out the power, and the water main breaks along your commute
should restrain one from embracing the illusory virtues of public utility regulation.
These systems were built with the help of government, as was the Internet. But they have
suffered terribly chronic underinvestmimt:
One in three major U.S. roads are in poor or mediocre condition, and one in four bridges are
either functionally obsolete or structurally deficient The Federal Highway Administration
estimates that $170 billion is needed annually just to fix our congested and crumbling roads.
Most of America's drinking water infrastructure is nearing the end of its useful life. There are an
estimated 240,000 water main breaks per year and reports say the water system needs $1
trillion in improvement.
America's electric grid is suffering and desperately needs a $768 billion shot in the arm by 2020
to keep it from failing and the number of massive blackouts ... has increased.
In 2007, there were 76 major blackouts. In 2011, there were 307. Can you imagine if the Internet
blacked-out 300 times a year?
No, because it doesn't. Because the Internet is not regulated as a public utility it grows and
thrives, watered by private capital and a light regulatory touch. It does not depend on the
political process for its growth, or. the extended droughts of public funding. This is why
broadband is the fastest deploying technology in world history, reaching nearly every citizen in
our expansive country.
Broadband speeds have increased 1SOOpercent in the last decade.
America's Internet providers have invested $1.3 trillion dollars since 1996 to make America's
Internet world class.
Our country has 4 percent of the world's population, but attracts 25 percent of all global
broadband investment.
Regulators overseas envy this level investment. Nellie Kroes, the EU Digital Agenda
Commissioner has said, "The writing is on the wall, and many EU leaders are abandoning their
approach and looking to the American broadband model of infrastructure-based competition and
private investment."
The contrast is striking when you compare the crisis in public utility infrastructure, with the
dynamism and stable investment in broadband Internet services.
We should not be complacent, however. We must continually prove that the private sector can
achieve public good.
We need to continue to continue to build a faster and open Internet. We need to continue to
produce content that entertains, informs and delights. We need to keep
prices reasonable and the value of our services high. We need to deliver second-to-none
customer service. And we need to be good corporate citizens.
But pipes are not enough to move people. The content those pipes carry is an essential
ingredient to progress. We are all sitting here in the land of television and movie magic.
We know storytelling is a deeply human need as well as a powerful tool; not just to entertain, but
also to raise consciousness, to find communion with our fellow man, to move us to empathize
with the plight of others.
Visual art opens our senses. Today, writers, actors and directors are at the very top of their
game. As one magazine put it, television has become literature in our modern society.
rn our
we knit together these two very powerful human forces: Network and Story. It's
a spectacular combination that too many take for granted. We spend time talking and fighting
about regulatory gains and losses. We spend so much energy debating how the spoils of profit
are divided. All necessary of course, but there is a higher value in what we do.
We weave the webs of wonder and possibility and provide the tools for people to come together
and to make change.
I believe the cable industry can and does make the world a better place. I believe our work is a
good business but it also serves a higher purpose.
We nurture the soil of modern community, and therein lays the hope and opportunity of a better
future. We are able stewards of that future. Much is being asked of us and we strive rightfully
and earnestly to answer that call.
At this show we celebrate our achievements and opportunities. But we also congregate. I urge
you to talk to one another and challenge one another. Discover new ways to bring communities
even closer together.
If we remain faithful to this mission, policymakers will always understand that cable is a critical
part of the solution to what ails us.
They will see us for what we are-a stalwart partner in pursuit of a better America.
Thank you.
It##
NCTA is the principal trade association for the U.S. cable industry, representing cable
operators serving more than 90 percent of the nation's cable television households and
more than 200 cable program networks. The cable industry is the nation's largest
broadband provider of high-speed Internet access, serving more than 52 million customers,
after investing $210 billion since 1996 to build two-way interactive networks with fiber
optic technology. Cable companies also provide state-of-the-art digital telephone service to
more than 27 million American consumers.
National Cable & Telecommunications AssociatiOit
I Phorita:
(202)
From:
To:
Subject:
Date:
to the Chairman
Thursday, April 24, 2014 11:32:44 AM
TW - Good to see you all over the news taking lead on

things progressing well. - LM
hope
>-----Original Message---->From: Laurence Master [mailto:laurence.master@nbcuni.com]

>Sent: Thursday1 March 13, 2014 3:36 PM
>To: Tom Wheeler
>Subject: Comments to the Chairman
>
>Laurence Master (laurence.master@nbcuni.com) writes:
>
>Hey Mr. Chairman, I sincerely hope this note (from the public domain)
>makes its way to your desk. Just want to tip my hat and say kudos for all
>that's going on in your life1
like it has been a long time coming.
> Ironically1 I find myself on the other side of the fence these days1 as
>Director, Digital Distribution, NBC Sports, go figure 1 fill in the blanks
>(espedally with the TW/Comcast merger and net neutrality filling you
>inbox) ... I hope carol and family are all well. 'If you still stay in
>touch with Stamberger1 please pass along my best wishes to him as well. >Laurence
> ----------------------------------------------------------->Server protocol: HTTP/1.1

>Remote host: 192.168.199.1?
>Remote IP address: 192.168.199.16
From:
To:
Subject:
Date:
Re: COmments to the Chairman

Friday, April 25, 2014 7:19:47 AM
...
From everything I'm reading, sounds like you have your hands full ... If anyone can handle this ride,
you're certainly one of them ... as someone in charge of NBCS streaming partnership distribution,
you bet I'm paying attention ... good luck Tom, hang in there
Sent:
Pacific Standard Time
To: Master, Laurence (NBCUniversal)

Subject: RE: Comments to the Chairman
Thanks Lawrence. These are interesting times
-----Original Message----From: Master, Laurence (NBCUniversal) [Laurence.Master@nbcuni.com]

Sent: Thursday, April 24, 2014 11:32 AM Eastern Standard Time
To:l
Subject: Re: Comments to the Chairman
TW - Good to see you all over the news taking lead on net-neutrality, hope
things
well. - LM
>-----Original Message-----
> From: Laurence Master [mailto:laurence.master@obcunl.com]

>Sent: Thursday, March 13, 2014 3:36PM
>To: Tom Wheeler
>
>
>Hey Mr. Chairman, I sincerely hope this note {from the public domain)
>that's going on in your life, seems like It has been a long time coming.
>Ironically, I find myself on the other side of the fence these days, as
>Director, Digital Distribution, NBC Sports, go figure, fill in the blanks
>(especially with the TW/Comcast merger and net neutrality filling you
>inbox) . I hope Carol and family are all werr. If you still stay in
>touch with Stamberger, please pass along my best wishes to him as well.>Laurence
>------------------------------------------------------------
>Server protocol: HTTP/1.1

>Remote host: 192.168.199.16
From:
To:
Subject:
Date:
...
Master. Laurence CN8CUniversal)
Re: Comments to the Chairman
Tuesday, May 13, 2014 10:40:52 AM .
>From: urence Master (mailto:laurence.master@nbcunl.corri]

>Sent: Thursday, March 13, 2014 3:36 Pf\1
>To: Tom Wheeler
>
>
>Hey Mr. Chairmari1 I sincerely hope this note (from the public domain)
>that's going on in your life, seems like it has been a long time coming.
>Ironically1 I finq myself on the other side of the fence these days, as
>Director, Digital Distribution/ NBC Sports, go figure, fill in the blanks
>(especially with tlie TW/Comcast merger and net neutrality filling you
>inbox) , I hope Carol and family are all well. If you still stay in
>touch with Stambetger, please pass along my best wishes to him as well.>Laurence
> --------------------------------------------------------->Server protocol: HTTP/1.1

>Remote host: 192.168.199.16
,,
Matthew.Murchison@lw.com
Wednesday, May 14, 2014 2:42 PM
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Priscilla Argeris;
Matthew DelNero; Stephanie Weiner; Carol Simpson; Kristine Fargotstein; Claude Aiken
Matthew.Brill@lw.com; RChessen@NCTA.com
NCTA letter, GN Docket No. 14-28
NCTA Title II letter 5-14-14.pdf
From:
Sent:
To:
Cc:
Subject:
Attachments:
All: Please find the attached letter submitted earlier today by the National Cable & Telecommunications Association in
GN Docket No. 14-28.
Matthew T. Murchison
LATHAM
&
WATKINS
LLP
555 Eleventh Street, NW

Suite 1000
Washington, D.C. 20004-1304
Direct Dial: +1.202.637.2136
Fax: +1.202.637.2201
Email: matthew.murchison@ lw.com
http://www.lw.com
To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or
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Latham & Watkins LLP
cable
National Cable&: Telecommunications Association
Rick Ch"ss"n
Law and RegulatoJyPolicy
zs Massachusetts Avenue, NW, Suite 100
Washington, DC 20001-1431
(202) 222-2300
(202) 222-2445
(202) 222-2448 Fax
rchessen@lncta.com
May14,2014
Marlene H. Dortch
Secretary
445 12th Street, S.W.
. Washington, D.C. 20554
Re:
Dear Ms. Dortch:

Oil behalf of the National Cable & Telecommunications Association (''NCTA"), I write
to underscore our deep concerns regarding recent proposals to reclassify broadband Internet
access services (or some component thereof) as telecommunications services subject to Title II
of the Communications Act As explained in NCTA' s prior comments in this
the
existing transparency rules provide a strong foundation for promoting Open Internet principles,
and, to the extent the Commission determines that additional safeguards are necessary, the
Verizon decision provides ample leeway to adopt such measures pursuant to Section 706 of the
Telecommunications Act.2 In light of that recently confirmed authority, it is wholly unnecessary
to pursue a Title n reclassification theory. It also would be immensely destabilizing. Indeed,
any effort to subject broadband Internet access services to common canier regulation would do
far more harm than good, as such a heavy-handed framework would discourage network
investment necessary to fuel the "virtuous cycle" of deployment, innovation, and adoption that
the Commission has long sought to promote under Section 706.
As the
and numerous stakeho+ders have recognized, cable operators. and
telecommunications companies have made massive private investments in broadband networlcs,
unleashing innovation and dramatically increased consumer welfare. 3 The Commission's 2002
determination and subsequent reaffirmations that broadband Internet access is an integrated
information service without any severable telecommunications service component were a critical
factor in creating the stable regulatory climate that attracted investment and enabled the Internet
Comments of the National Cable & Telecommunications Association, GN Docket No.

14-28 (filed Mar. 26, 2014).
Federal Communications Commission, Connecting America: The National Broadband

Plan, at XI (2010).
Ms. Marlene Dortch

May 14,2014
Page2
to become a key driver of our economy and a central aspect of our lives. 4 In fact, the
Commission and the Department of Justice ("DOJ") sought Supreme Court review in the Brand
X case to prevent the imposition of common cattier regulation on broadband services based in
large part on the concern that such regulation would entail significant burdens that could prevent
or delay the deployment of "new broadband infrastructure, particularly in rural or other
underserved areas.''5 The Court upheld the Cominission' s information-service classification
based on the "factual particulars of how Internet technology works and how it is provided."6
As a threshold matter, it is far from clear that the Commission could simply abandon the
fact-based classification it adopted and repeatedly confirmed over the past 12 years. The
classification of broadband Internet access ''turns on the nature of the functions that the end user
is offered,"7 and those functions have not materially changed since the Commission analyzed
them in its previous orders. Notably, c.able operators have never provided broadband
transmission as common caniers. Moreover, where, as here, such a classification has
engendered "serious reliance interests," and any effort to reclassify broadband Internet access
would contradict "factual findings ... which underlay [the FCC's] prior policy," the Commission
would need to "provide a more detailed justification than what would suffice for a new policy
created on a blank slate. " 8 At a minimum, pursuing Title li reclassification would plunge the
broadband industry into a lengthy period of uncertainty while a new round of appellate
proceedings ran its course-a process that can be easily avoided by relying on the roadmap
provided by the Verizon court
But even assuming the Commission cpuld lawfully reclassify broadband services, it
would be profoundly corinterproductive to do so. The burdens and uncertainty associated with
Title rr regulation (or even the threat of such regulation) would deter broadband providers from
making the substantial additional investments required to deploy new and upgraded broadband
infrastructure. As noted, the Commission and DOJ emphasized that very risk in their petition in
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities,
Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Red 4798 (2002)
("Cable Modem Declaratory Ruling"); see also, e.g., Appropriate Framework for
Broadband Access to the Internet over Wire!ine Faeilities, Report and Order and Notice
of Proposed Rulemaking, 20 FCC Red 14853 (2005) (classifying wireline broadband
services as information services); Appropriate Regulatory Treatme'ntfor Broadband
Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Red 5901
Petition for Writ of Certiorari, U.S. Dept. ot Justice and FCC, FCC v. Brand X Internet
Servs., No. 04-277, at 25-26 (Aug. 27, 2004) ("Brand X CertPetition").
Nat'! Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 991 (2005).
Cable Modem Declaratory Ruling CJ[ 38.
FCCv. Fox Television Stations, Inc., 556 U.S. 502,515 (2009).
/-
Ms.
Dortch
May 14, 2014
Page3
the Brand X case, 9 and it remains just as serious today. The Commission has
that
reaching the broadband deployment goals set forth in the National Broadband Plan could require
as much as $350 billion in private investment,10 but the specter of Title IT regulation would
significantly diminish network providers' ability to attract that level of investment. A wide array
of financial analysts and industry observers have reached the same conclusion, arguing
emphatically that the threat of Title II reclassification would damage broadband providers,
discourage infrastructure investment, stifle job growth, and harm consumers. 11
Indeed, in other contexts where the goyemment has imposed public utility-style
regulation, such an approach has led to chronic under-investment in basic infrastructure. One
need only examine our nation's ailing public infrastructure to appreciate the potential dangers to
the continued expansion and growth of broadband networ.ks. 12 The contrast is str:iking when one
compares the crisis in public utility infrastructure with the dynamism and stable investment in
broadband Internet services. 13
9
Brand X Cert Petition at 25-26.
10
See FCC Staff Presentation, September 2009 Commission Meeting, at45 (Sep. 29, 2009),
http://hraunfoss.fcc.gov/edocs__public/attachmatch/DOC-293742Al.l'df.
11
See, e.g., Anna-Maria Kovacs, The Intemet Is Not a Rotary Phone, Re/code, May 12,
2014, available at http:l/recode.net/2014/05/12/the-internet-is-not-a-rotary-phone/
(comparing robust investment in broadband in the U.S. to diminished investment in
Europe, which "has continued to regulate its telecommunications industry along the lines
of Title ll"); Bret Swanson, Title II Communications Is the 'Slow Lane', Tech Policy
Daily, May 13, 2014, available at http://www.techpolicydaily.com/communications/titleii-communications-slow-lane/ (explaining that"[ a]s the mostly unregulated Internet piles
success upon success, boosting bandwidth and transforming each industry it touches,
with no end in sight, the old, heavily regulated, Title II network is barely an afterthought
and is rapidly approaching full retirement''); see also Letter of Robert Vf. Quinn,. Senior
Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at
2-4 (May 9, 2014) ("AT&T May 9 Letter'')
other analysts' commentary on
the risks of Title ll reclassification theories).
12
A recent study found that most of America s drinking water infrastructure is nearing the
end of its useful life and will need $1 trillion in investment in the coining decades, and
that America's electric grid will require a $736 billion shot in the arm by 2020 to keep it
from failing. See American Society of Civil Engineers, 2013 j?.eport Card for America's
Infrastructure, available at http://www.infrastructurereportcard.org. The same study
found that one in three major U.S. roads is in poor or mediocre condition and that
repairing and maintaining these roads will require an estimated $170 billion in annual
investment, and that one in four bridges is either functionally obsolete or structurally
deficient. ld
13
Broadband speeds have increased 1500 perc.ent in the last decade. Michael Powell,
Keynote Remarks: 2014 Cable Show (Apr. 29, 2014), at 3, available at
https://www.ncta.com/sites/prod/files/NCTA-MichaeiPowellKeynoteRemar.ks_O.pdf.
,.
Ms. Marlene Dortch
May 14,2014
Page4
And the risks as.sociated with Title II regulation would extend far beyond the chilling of
investment and innovation by broadband Internet access providers. If the transmission
component(s) of broadband Internet access were to be treated as distinct telecommunications
services, there is no sound principle that would justify limiting such a classification to last-mile
providers; to the contrary, other entities that provide transmission (such as backbone providers
and content delivery networks) could become subject to Title 1!. 14
Nor could the Commission overcome such obstacles by forbearing from unwanted and
overbroad aspects of Title II. Any such undertaking would be massively complex and
contentious, given the myriad provisions that are included in Title rrand relevant CQmmission
precedent. As a result, the forbearance process itself would engender enormous uncertainty, as
.the Commission has PJ;:eviously recognized. 15 And any grant of forbearance would be subject to
judicial challenge and/or potential revocation by a later Commission.
Moreover, subjecting broadband access providers to regulation under Title 1I would not
even accomplish the goal that reclassification proponents apparently seek. Reclassification
would not support a categorical prohibition on Internet "fast lanes" any more than Section 706
would. Section 202 of the Act does not impose a duty of "nondiscrimination," but rather
proscribes only "unjust" or ''unreasonable" discrimination. 16 The relevant precedent makes clear
that caniers subject to this standard l;lave considerable flexibility to differentiate among
customers for various legitimate business reasons. 17 Accordingly, whatever the Commission's
ultimate judgment about the potential benefits and harms associated with paid prioritization and
Moreover, as the Commission is aware, America's Internet providers have invested well
over $1 trillion dollars since 1996 to make America's Internet world-class. See Inquiry
Concerning the Deployment ofAdvanced Telecommunications Capability to All
Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such
" Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended
by the Broadbahd Data Improvement Act, Eighth Broadband Progress Report, 27 FCC
Red 10342 (2012).
]4
As AT&T has pointed out, reclassification of last-mile transmission under Title ll also
could import the broken intercarrier compensation scheme to the exchange of Internet
traffic, among various other unintended and disruptive consequences. See AT&T May 9
Letter at5.
15
See Brand X Cert Petition at 28 (explaining that "forbearance authority is not in this
context an effective. means of remov[mg] regulatory uncertainty that in itself may
discourage investment and innovation").
16
47 U.S.C. 202(a).
17
See, e.g., Orlojfv. FCC, 352 F.3d 415 (D.C. Cir. 2003) (upholding carriers' ability to
offer differential discounts to retail customers); Southwestern Bell Tel. Co. v. FCC, 19
F.3d 1475, 1481 (D.C. Cir. 1994) (upholding carriers' ability to enter into individualized
contracts); Ameritech Operating Cos. Revisions to Tariff FCC No. 2, Order, DA 94-1121
(CCB 1994) (upholding reasonableness of rate differentials based on cost considerations).
Ms. Marlene Dortch

May 14,2014
Page5
similar arrangements, any such practices will have to be reviewed on a case-by-case basis
to general standards promulgated by the Commission, regardless of whether the
Commission seeks to rely on Section 706 or Title n.
As reflected in our recent comments, NCTA seeks to be a constructive partner in any new
dialogue about new Open Internet rules. While the substance of proposed rules can be fairly
debated, there is no sound reason to pursue reclassification under Title II.
Sincerely,
Is/ Rick Chessen
Rick Chessen
,.
From:
Sent:
To:
Cc:
Subject:
Attachments:
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Matthew DelNero
NCTA ex parte notification, GN Docket No. 14-28
NCTA NN ex parte 5-14-14.pdf
All: In addition to the letter just circulated, the National Cable & Telecommunications Association also has submitted the
attached ex parte notification in GN Docket No. 14-28. regarding our meetings with you
on Monday.
all
Matt
LATHAM & WATKINS LLP
Suite 1000
Direct Dial: +1 .202.637.2136
Fax: +1.202.637.2201
Email: matthew. murchison@ lw.com
http://www.lw.com
written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code gr (ii)
Matthew A. BriO
Dillie! Dial: +1.202.637,1095
matthew.brfii@Jw.com
LATHAM & wATKINs LLP
May 14,2014
Marlene H. Dortch
Secretary
445 12th Street, S.W
Re:
SSS Eleventh Street, N.W. Suite 1000

Tel:+ 1.202.637.2200 Fax: +1.202.637.2201
www.lw.com
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Washington, D.C.
Notification of Ex Parte Presentaf;ions of the National Cable &

Telecommunications Association, GN Docket No. 14-28
Dear Ms. Dortch:

On May 12, 2014,.Rick Chessen of the National Cable & Telecommunications
Association (''NCTA"), along with the undersigned and Matthew Murchison, both of Latham &
Watkins LLP, met with the following people in connection with. the above-referenced
proceeding: Nicholas Degani and Daniel Graulich from Commissioner Pai' s office; Amy Bender
Goodheart from Commissioner Clyburn's office;
from Commissioner O'Rielly' s office;
and Daniel Alvarez from Chairman Wheeler's office together with.Matthew DelNero of the
Wireline Competition Bureau.
At these meetings, we reiterated that the Commission's consideration of further Open
Internet rules in light of the Verizon decision 1 should be guided by the basic principles set forth
inNCTA's comments in this proceeding. 2 In particular, we urged the Commission to reject
proposals seeking to reclassify any component of broadband Internet access under Title TI,
especially now that the Verizon court has clarified the Commission's authority under Section
706. We explained, consistent withNCTA's opening comments and its ex parte letter submitted
Verizon v. FCC, 749 F.3d 623 (D.C. Cir. 2014), affinning in part, vacating and
remanding in part, Preserving the Open Internet; Broadband Industry Practices, Report
and Order, 25 FCC Red 7905 (2010)
2
See Comments of the National Cable & Telecommunications Association, GN Docket

No. 14-28 (filed Mar. 46, 2014) (calling, among other things, for a balanced examination
of the broadband ecosystem that avoids an exclusive focus.on wireline ISPs).
..
May14,2014
Page2
LATHAM&WATKI NSuP
earlier today, 3 that a Title II reclassification theory would be immensely destabilizing and would
undermine the ongoing network investment necessary to fuel the "virtuous cycle" of deployment,
innovation, and adoption that the Commission has long sought to promote. We also noted that
such an approach would be wholly unnecessary to achieve the Commission's regulatory
objectives, and that, as a legal matter, it is far from clear that theCommission could simply
abandon its prior classification determinations.
Please contact the undersigned if you have any questions regarding these issues.
Sincerely,
Is/ Matthew A. Brill
Matthew A. Brill
Counsel for the National Cable &
Telecommunications Association
See id. at 20-22; Letter of Rick Chessen, National Cable & Telecommunications
Commission, to Marlene H. Dortch, Secretary, Federal Communications Commission,
GN Docket No. 14-28 (filed May 14, 2014).

To: Gigi Sohn
Subject: Please see this ex parte
.Attached please find my ex parte on the Open Internet Order. Please particuarly note the two pages of argument
refuting the "urban rumor" that Title II mandates rather than permits discrimination under Title II.
Harold Feld, Senior VP

202-861-0020 I @haroldfeld
Public Knowledge I @publicknowledge I www.publicknowledge.org
1818 N St. NW, Suite 410 IWashington, DC 20036
Promoting a Creative & Connected Future.
Public Knowledge
May 1, 2014
Marlene H. Dortch
Secretary
445 12th Street, SW
Re: Open Internet Remand, GN Docket No. 14-28
Dear Ms. Dortch:

On April29, 2014, Harold Feld, Senior Vice President, Public Knowledge (PK), met with
Rebekah Goodheart, Legal Advisor on Wireline to Commissioner Clyburn, with regard to the
above captioned proceeding.
PK expressed grave concerns with regard to the press reports that the Commission would
propose paid prioritization under a "commercially reasonable" standard. PK repeated its
concerns with the commercially reasonable standard as set forth in the comments filed by PK on
March 21, 2014. 1
PK went on to recommend, consistent with the March 21 comments, that the Commission
seek comment on whether (a) the Commission must consider whether the common carrier
prohibition prevents the FCC from adequately addressing the concerns the Commission
identified in the 2010 Open Internet Order, which the Verizon court explicitly found (a)
reasonable, and (b) adequately supported by the record. The Commission should make
abundantly clear that if it finds that it cannot adequately address these concerns because of the
limitations of Section 706 or the limitations of the "common carrier prohibition," then the
Commission will reclassify broadband access as a Title II service.
In this regard, PK notes that while the Chairman is correct that Title II would permit
reasonable discrimination, it does not, as some seem to insist, require reasonable discrimination
and therefore Title II would require paid prioritization. To the contrary, where the Commission
has found conduct inherently unjust, unreasonable, or subject to abuse, it has affirmatively
prohibited this conduct with no allowance for exception.
For example, in Carterfone, the FCC found that it was inherently unjust and
unreasonable to permit a carrier to interfere with the ability of a subscriber to attach a device to a
network. Because it determined that it was impossible to adequately police discriminatory
conduct by the network operator, the FCC established Part 68 and affirmatively prohibited
common carriers offering residential telephone service from ever discriminating under any
http://apps.fcc.gov/ecfs/document/view?id=7521 094713
Public Knowledge, 1818 N Street NW, Suite 410, Washington DC 20036
i!i Public Knowledge

circumstance between devices or ever varying from the Part 68 standard because discriminating
between devices would never be 'just and reasonable.'
Similarly, in the Computer I proceeding, the Commission initially permitted Common

Carriers to offer "hybrid services" under a set of safeguards designed to protect against anticompetitive conduct. Only a few years later, the Commission concluded in the Computer II
proceeding that it was inherently impossible to pem1it common carriers to offer "enhanced
services" except through complete structural separation. Judge Green, in applying the antitrust
laws, reached a similar conclusion with regard to the provision of long distance services by local
networks. Only complete structural separation and a complete prohibition on the practice could
prevent anticompetitive and anti-consumer conduct.
In short, the oft repeated statement that Title II would require the Commission to permit
paid prioritization is little more than a pernicious urban myth. Sadly, it has been repeated often
enough that, in the words of Stephen Colbert, it has become "factesque." Accordingly, PK urges
that the NPRM explicitly seek comment on the following.
A. Is the practice of paid prioritization intrinsically incompatible with the Chairman's stated
goal of providing "to ensure that everyone has access to an Internet that is sufficiently
robust to enable consumers to access the content, services and applications they demand,
as well as an Internet that offers innovators and edge providers the ability to offer new
products and services. " 2
B. Specifically, does the ability to offer paid prioritization present the same detection and
enforcement problems that prompted the Commission to declare other practices
inherently unjust and unreasonable?
C. Are there alternative reasons why permitting paid prioritization under any circumstances
would frustrate the goals of the Communications Act or create a disincentive to
investment contrary to the requirement of the Commission to facilitate investment in
infrastructure under 47 U.S.C. 1302. Specifically, the Verizon court found the
Commission's concern that paid prioritization would frustrate the "virtuous cycle" that
has, until now, forced providers to invest in enhanced capacity as a means of generating
revenue both reasonable and supported by the evidence in the record. How can the
Commission adequate address these concerns given the common carrier prohibition
identified by the court.
D. Alternatively, should the Commission follow the same course it followed in the Cable
Modem Declaratory Ruling when it expressly determined that the Ninth Circuit had erred
2
Chairman Tom Wheeler, "Finding the Best Path Forward To Protect An Open Internet,"
http://www.fcc.gov/blog/finding-best-path-forward-protect-open-internet
: Public Knowledge
in defining cable modem service as a "telecom service" and found- in direct
contravention of the Ninth Circuit- that cable modem service was an "information
service." Given that the Supreme Court upheld this exercise of statutory interpretation in
both Brand X and City ofArlington, the FCC should expressly solicit comment on the
meaning and scope of the "common carrier prohibition."
E. The Commission should expressly solicit comment on how it will ensure, if it permits
paid prioritization, that carriers continue to invest in their networks. Given that
Commission has already found- and the D.C. Circuit found this conclusion both
reasonable and supported by record evidence -that the ability to monetize scarcity
creates an incentive to defer investment in actual deployment, how will the Commission
ensure that investment in infrastructure continues pursuant to 47 U.S. C. 1302? Should the
Commission prohibit prioritization if the rate of investment in infrastructure declines? If
the Commission cannot adequately address this concern, it should explicitly state that it
will classifY broadband access as a Title II telecommunications service on a finding that
permitting paid prioritization is intrinsically contrary to the purposes of the
Communications Act and that only by exercise of Title II authority can the Commission
prohibit paid prioritization.
Enforcement and Market Definition

The Commission should explicitly solicit comment on whether insertion of monitoring devices,
similar to those voluntarily used in the Sam Knows study, should be mandatory so that the
Commission and users can guarantee that service is not artificially degraded.
PK also urged the Commission to consider whether to permit prioritization when only a single
wireline provider serves the relevant market. In such a case, edge providers could be foreclosed
from the market because the single provider could refuse service. Similarly the Commission
should consider whether to permit prioritization where only two wireline providers serve a
geographic market. lfyes, should different rules apply to the dominant wireline provider? To the
extent parties argue that wireless providers offer acceptable alternatives, then wireless providers
should be subject to the same rules on the offering of prioritized service. To the extent the
Commission continues to differentiate wireless from wireline, it cannot simultaneously maintain
that wireless provides an acceptable alternative for reaching customers.
Virtual Redling
Public Knowledge
PK notes that the debate has assumed that providers will offer prioritization to all customers.
From a technological standpoint, however, there is no reason why providers cannot sell
prioritization in smaller increments or target- at the request of edge providers -more
"desirable" customers. For example, a service provider may wish to market prioritized markets
only in the top urban markets. In addition, history teaches us that providers of goods and services
have often used zip codes or other apparently neutral proxies to bypass poor urban
neighborhoods or market to minority communities based on stereotypes.
Over time this could potentially lead to certain prioritized services becoming available only in
urban areas, or being unavailable to poor and minority communities. At the same time, however,
there are many reasons why an edge provider may wish to discriminate with regard to which
customers on a particular broadband access network it desires to reach. For example, providers
of local news content might rationally conclude that only subscribers local to the events would
want prioritized access, and paying for system-wide prioritization would be unduly costly for
small, local providers.
Nevertheless, the potential for "virtual redlining" implicates the policies of 4 7 U .S.C. 151,
254(b)(3), 257, and 1302. Nor could the Commission require broadband access providers to offer
prioritization only on an "all or nothing" basis to ensure uniform service to all subscribers, since
the Verizon court explicitly found that a mandate to serve all customers identically is "the
essence of common carrier obligation."
Accordingly, PK suggests that the Commission solicit comment on the following:
A.
In light ofthe Commission's past experience with discriminatory deployment of services,

should the Commission regard the potential for "virtual redlining" -either on the basis of
an urban/rural divide or on some other basis - as a concern.
B.
If so, how would the Commission monitor to determine whether virtual redlining was
occurring?
C.
Finally, even if the Commission determined that virtual redlining was occurring at a level
as to significantly impact rural or minority communities, what authority would the
Commission have to remedy to problem in light of the common carrier prohibition?
Classification of Prioritized Service.

As conceived by the Verizon court, broadband service necessarily encompasses a two-sided
market in which the broadband access provider sells service to both the residential customer on
one side and the edge provider the subscriber has downloaded content from on the other. As the
Commission declined to appeal this finding, it is now stuck with it.
However, as the D.C. Circuit has previously observed, see Ad Hoc Telecoms Users Comm. v.
FCC, 572 F.3d 903 (D.C. Cir. 2009), there are significant differences between the residential
broadband market and the business broadband market. The service which the D.C. Circuit
;& Public Knowledge

envisions as being "sold" to edge providers is different and distinct from the service "sold" to
subscribers.
PK agrees with the April 14 ex parte filed by Professors Tejas N. Narechania and Tim Wu
arguing that this prioritization service is clearly a Title II service.3 The Commission should seek
comment on the classification of the prioritization service. PK notes that the service does not
come bundled with any of the information services identified by the Commission in the Cable
Modem Order as included in the "offer" to residential subscribers. Indeed, because the offer to
prioritize does not even begin until the edge provider delivers traffic to the last mile provider's
network, the !at mile provider does not even offer independent DNS routing.
In accordance with Section 1.1206(b) of the Commission's rules, this letter is being filed
with your office. If you have any further questions, please contact me at (202) 861-0020.
Respectfully submitted,
Is/ Harold Feld

PUBLIC KNOWLEDGE
cc: Rebekah Goodheart
http://apps. fcc.gov/ecfs/document/view?id=7521 098085
From:
Sent:
To:
Cc:
Subject:
Attachments:
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Matthew DelNero
NCTA ex parte notification, GN Docket No. 14-28
NCTA NN ex parte 5-14-14.pdf
All : In addition to the letter just circulated, the National Cable & Telecommunications Association also has submitted the
attached ex parte notification in GN Docket No. 14-28 regarding our meetings with you all on Monday.
Matt

Suite 1000
Direct Dial: + 1.202.637.2136
Fax: + 1.202.637.2201
Email: matthew.murchison@lw.com
http://www.lw.com
written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code or (ii)
Matthew A. Brill
555 Eleventh Street, N.W., Suite 1000
Direct Dial:+ 1.202.637.1095
matthew.brill@lw.com
Tel:+ 1.202.637.2200 Fax:+ 1.202.637.2201

www.lw.com
LATHAM&WATKI NSLLP
May 14,2014
Marlene H. Dortch
Secretary
445 12th Street, SW
Re:
FIRM I AFFILIATE OFFICES

Abu Dhabi
Milan
Barcelona
Moscow
Beijing
Munich
Boston
New Jersey
Brussels
New York
Chicago
Orange County
Doha
Paris
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Dusseldorf
Rome
Frankfurt
San Diego
Hamburg
San Francisco
Hong Kong
Shanghai
Houston
Silicon Valley
London
Singapore
Los Angeles
Tokyo
Madrid
Washington, D.C.
Notification of Ex Parte Presentations of the National Cable &

Telecommunications Association, GN Docket No. 14-28
Dear Ms. Dortch:

On May 12, 2014, Rick Chessen of the National Cable & Telecommunications
Association ("NCTA"), along with the undersigned and Matthew Murchison, both of Latham &
Watkins LLP, met with the following people in connection with the above-referenced
proceeding: Nicholas Degani and Daniel Graulich from Commissioner Pai' s office; Amy Bender
from Commissioner O'Rielly's office; Rebekah Goodheart from Commissioner Clyburn's office;
and Daniel Alvarez from Chairman Wheeler's office together with Matthew DelNero of the
Wireline Competition Bureau.
At these meetings, we reiterated that the Commission's consideration of further Open
Internet rules in light of the Verizon decision t should be guided by the basic principles set fmth
in NCTA's comments in this proceeding. 2 In particular, we urged the Commission to reject
proposals seeking to reclassify any component of broadband Internet access under Title II,
especially now that the Verizon court has clarified the Commission's authority under Section
706. We explained, consistent with NCTA's opening comments and its ex parte letter submitted
Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), affirming in part, vacating and
remanding in part, Preserving the Open Internet; Broadband bzdust1y Practices, Report
and Order, 25 FCC Red 7905 (2010)
2
See Comments of the National Cable & Telecommunications Association, GN Docket

No. 14-28 (filed Mar. 26, 2014) (calling, among other things, for a balanced examination
of the broadband ecosystem that avoids an exclusive focus on wireline ISPs).
May 14,2014
Page 2
LATHAM&WATKINSttP
earlier today, 3 that a Title II reclassification theory would be immensely destabilizing and would
undermine the ongoing network investment necessary to fuel the "virtuous cycle" of deployment,
innovation, and adoption that the Commission has long sought to promote. We also noted that
such an approach would be wholly unnecessary to achieve the Commission's regulatory
objectives, and that, as a legal matter, it is far from clear that the Commission could simply
abandon its prior classification determinations.
Please contact the undersigned if you have any questions regarding these issues.
Sincerely,
Is/ Matthew A. Brill
Matthew A. Brill
Counsel for the National Cable &
Telecommunications Association
See id. at 20-22; Letter of Rick Chessen, National Cable & Telecommunications
Commission, to Marlene H. Dortch, Secretary, Federal Communications Commission,
GN Docket No. 14-28 (filed May 14, 2014).
From:
Sent:
To:
Cc:
Subject:
Attachments:
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Priscilla Argeris;
Matthew DelNero; Stephanie Weiner; Carol Simpson; Kristine Fargotstein; Claude Aiken
NCTA letter, GN Docket No. 14-28
NCTA Title II letter 5-14-14.pdf
All: Please find the attached letter submitted earlier today by the National Cable & Telecommunications Association in
GN Docket No. 14-28.
Suite 1000
Direct Dial: +1 .202.637.2136
Fax: + 1.202.637.2201
Email: matthew.murchison@ lw.com
http://www.lw.com
written to be used, and cannot be used by you , (i) to avoid any penalties imposed under the Internal Revenue Code or (ii)
proh ibited. If you are not the intended recipient, please contact the sender and delete all copies.
National Cable & Telecommunications Association

25 Massachusetts Avenue, NW, Suite 100
Washington, DC 20001-1431
(202) 222-2300
Rick Chessen
Law and Regulatory Policy
(202) 222-2445
(202) 222-2448 Fax

rchessen@ncta.com
May 14,2014
Marlene H. Dortch
Secretary
Re:
Protecting and Promoting the Open Internet, GN Docket No.14-28
Dear Ms. Dortch:

On behalf of the National Cable & Telecommunications Association ("NCTA"), I write
to underscore our deep concerns regarding recent proposals to reclassify broadband Internet
access services (or some component thereof) as telecommunications services subject to Title II
of the Communications Act. As explained in NCTA's prior comments in this docket, 1 the
existing transparency rules provide a strong foundation for promoting Open Internet principles,
and, to the extent the Commission determines that additional safeguards are necessary, the
Verizon decision provides ample leeway to adopt such measures pursuant to Section 706 of the
Telecommunications Act? In light of that recently confirmed authority, it is wholly unnecessary
to pursue a Title II reclassification theory. It also would be immensely destabilizing. Indeed,
any effort to subject broadband Internet access services to common carrier regulation would do
far more harm than good, as such a heavy-handed framework would discourage network
investment necessary to fuel the "virtuous cycle" of deployment, innovation, and adoption that
the Commission has long sought to promote under Section 706.
As the Commission and numerous stakeholders have recognized, cable operators and
telecommunications companies have made massive private investments in broadband networks,
unleashing innovation and dramatically increased consumer welfare.3 The Commission's 2002
determination and subsequent reaffirmations that broadband Internet access is an integrated
information service without any severable telecommunications service component were a critical
factor in creating the stable regulatory climate that attracted investment and enabled the Internet
Comments of the National Cable & Telecommunications Association, GN Docket No.

14-28 (filed Mar. 26, 2014).
2
Federal Communications Commission, Connecting America: The National Broadband

Plan, at XI (2010).
Ms. Marlene Dortch

May 14,2014
Page2
to become a key driver of our economy and a central aspect of our lives. 4 In fact, the
Commission and the Department of Justice ("DOJ") sought Supreme Court review in the Brand
X case to prevent the imposition of common carrier regulation on broadband services based in
large part on the concern that such regulation would entail significant burdens that could prevent
or delay the deployment of "new broadband infrastructure, patticularly in rural or other
underserved areas." 5 The Court upheld the Commission's information-service classification
based on the "factual particulars of how Internet technology works and how it is provided."6
As a threshold matter, it is far from clear that the Commission could simply abandon the
fact-based classification it adopted and repeatedly confirmed over the past 12 years. The
classification of broadband Internet access "turns on the nature of the functions that the end user
is offered,"7 and those functions have not materially changed since the Commission analyzed
them in its previous orders. Notably, cable operators have never provided broadband
transmission as common carriers. Moreover, where, as here, such a classification has
engendered "serious reliance interests," and any effort to reclassify broadband Internet access
would contradict "factual findings ... which underlay [the FCC's] prior policy," the Commission
would need to "provide a more detailed justification than what would suffice for a new policy
created on a blank slate." 8 At a minimum, pursuing Title II reclassification would plunge the
broadband industry into a lengthy period of uncertainty while a new round of appellate
proceedings ran its course-a process that can be easily avoided by relying on the roadmap
provided by the Verizon court.
But even assuming the Commission could lawfully reclassify broadband services, it
would be profoundly counterproductive to do so. The burdens and uncertainty associated with
Title II regulation (or even the threat of such regulation) would deter broadband providers from
making the substantial additional investments required to deploy IJ.ew and upgraded broadband
infrastructure. As noted, the Commission and DOJ emphasized that very tisk in their petition in
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities,
Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Red 4798 (2002)
("Cable Modem Declaratory Ruling"); see also, e.g., Appropriate Framework for
Broadband Access to the Intemet over Wireline Facilities, Report and Order and Notice
of Proposed Rulemaking, 20 FCC Red 14853 (2005) (classifying wireline broadband
services as information services); Appropriate Regulatmy Treatment for Broadband
Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Red 5901
Petition for Writ of Certiorari, U.S. Dept. of Justice and FCC, FCC v. Brand X Internet
Servs., No. 04-277, at 25-26 (Aug. 27, 2004) ("Brand X Cert Petition").
Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 991 (2005).
Cable Modem Declaratmy Ruling <J[ 38.
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
From: Chang, Shawn [mailto:Shawn.Chang@mail.house.gov]

To: Sara Morris
Subject: Waxman letter
Shawn H. Chang
Chief Counsel
Communications and Technology Policy
Committee on Energy and Commerce
u.s. House of Representatives
H2-564 Ford House Office Building
0: 202-226-3400 F: 202.225-1690
FRED UPTON, MICHIGAN
HENRY A. WAXMAN, CALIFORNIA
CHAIRMAN
RANKING MEMBER
ONE HUNDRED THIRTEENTH CONGRESS
(!Congress of tbe
J!}ouse of l\epresentaUbes
COMMITTEE ON ENERGY AND COMMERCE
2125 RAYBURN HousE OFFICE BuiLDING
WASHINGTON, DC 20515-6115
Majority (202) 225--2927
Minority (202) 225--3641
May 14,2014
The Honorable Tom Wheeler
Chairman
445 12th Street, SW
Dear Chairman Wheeler:
We spoke last month about the importance of network neutrality and my support for
strong, enforceable rules of the road to protect the free and open Internet. I appreciate your
commitment to reinstate open Internet rules based on a solid legal framework that preserves
innovation, competition, and consumer choice online. And I support your decision to ask the
Commissioners of the Federal Communications Commission to vote on these proposed rules on
May 15,2014.
Since our discussion, I understand you have further modified your proposal to ensure the
Commission's new rules will not legalize segregation of the Internet into fast and slow lanes
under a "paid prioritization" arrangement between broadband providers and content companies.
These schemes have always been antithetical to the principles of an open Internet, and I
commend you for taking this step.
I also support your efforts to reinstate the no-blocking and nondiscrimination rules.
This proceeding will be the FCC's third attempt to establish open Internet rules. The
difficulty in establishing these rules has not been their substance. In 20 l 0, I led legislative
negotiations that produced the Open Internet Act of2010, which would have prohibited blocking
of websites and unjust or unreasonable discrimination by wireline broadband Internet service
providers. This legislation was endorsed by all sides of the open Internet debate, including open
Internet advocates like Public Knowledge and the Consumer Federation of America and the
major Internet service providers including AT&T, Verizon, and cable companies represented by
the National Cable and Telecommunications Association. The policies embodied in the

May 14,2014
Page 2
legislation were codified in the FCC's 20 l 0 open Internet mles. They remain a sound foundation
tor the rules you are considering.
The difficulty has also not been the FCC's legal authority. There is legal consensus that
the FCC has the authority to adopt these mles if the FCC reclassified broadband Internet
connectivity as a telecommunications service under Title II of the Communications Act. Even
the D.C. Circuit decision in Verizon v. FCC recognized that the open Intemet rules would have
been upheld if the FCC had not "chosen to classifY broadband providers in a mmmer that
exempts them fiom treatment as common caniers." 1
Instead, the difficulty that the FCC has repeatedly encountered has been justifying the
open Intemet mles without taking the step of classifying broadband Intemet service as a
telecommunications service. The large service providers have fought regulation under Title II
because it would carry with it the authority of the FCC to regulate rates in a future proceeding.
The providers have maintained this opposition even when the FCC suggested using its authority
to forbear from applying most of the requirements of Title II to broadband service, including
forbearing from rate regulation.
The D.C. Circuit's decision in Veri::on undercuts the providers' position because the
court held that the FCC has authotity to regulate broadband under section 706 of the
Telecommunications Act without Title II reclassification. Section 706 expressly provides that
the FCC can utilize "price cap regulation" and other measures to remove barriers to
infrastructure investment and promote broadband deployment. 2 This means that broadband
Internet service providers are subject to potential rate regulation whether they are regulated
under Title II or section 706. Avoiding the remote possibility of rate regulation is no longer a
persuasive rationale for avoiding the invocation of the Commission's Title II authority.
I believe the time has come for the FCC to stop putting vitally important open Internet
rules in jeopardy through legal gymnastics. I have no objection to the agency's proceeding under
section 706 as the prefenecl basis of authority, as this may generate less opposition from some
quarters than proceeding under Title II. But the FCC should also use its undisputed Title II
authority as additional authority. There are a number of ways the FCC could mandate automatic
reinstatement of the no-blocking and nondiscrimination protections under Title II of the
Communications Act in the event that the courts once again invalidate the strong open Internet
rules under section 706. These could include using Title II as "backstop authority," issuing one
order under section 706 and a contingent order under Title II, or reclassifying broadband fntemet
service as a telecommunications service and forbearing the no-blocking and nondiscrimination
requirements while the section 706 mles remain in effect. This approach will allow the FCC to
Veri::o/1 v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

See 47 U.S.C. 1302(a).

May 14,2014
Page3
get the policy right and avoid the need to water down essential open Internet protections out of a
concern about inadequate authority.
The Internet service providers have been litigating the open Internet rules for too long.
They lobby the FCC to avoid using its strongest legal authority for the open Internet rules. Then
when the FCC agrees with them, they sue the agency on the basis that the FCC lacks the power
to protect an open Internet. The approach I suggest would stop these legal games.
I was pleased to read that Professor Tim Wu of Columbia Law School recently made a
similar proposal in the New Yorker. As he wrote, "the Commission's best course is to pass tough
rules under 706 with Title II as the backup, to insure the rules survive a court challenge. This
strategy may actually ward off court challenges.... Attempting to invalidate the rules with
lawsuits could well reactivate the full authority of the Commission over broadband, with the
carriers unable to blame anyone but themselves."3
The Internet is a great American success story thanks to our longstanding national
commitment to communications policies that prevent broadband providers from acting like
gatekeepers online. I urge you and your colleagues to move forward with your Notice of
Proposed Rulemaking later this week and to incorporate a Title II backup proposal as part of the
item.
Sincerely,
Ranking Member
cc:

Commissioner
Commissioner
3 The
New Yorker, The Solution to the F. C. C.'s Net-Neutrality Problems (May 9, 2014)
(online at www .newyorker.com/online/blogs/elements/20 14/05/tom-wheeler-fcc-net-neutralityproblems.htrnl).

May 14,2014
Page4

Commissioner
Commissioner

To: Chang, Shawn
Subject: FYI, Ranking Member Waxman on FCC Open Internet NPRM

Let me know if you have any questions.
Shawn H. Chang
Chief Counsel
U.S. House of Representatives
H2- 564 Ford House Office Building
0 : 202- 226-3400 F: 202.225-1990
CHAIRMAN
RANKING MEMBER
of tbe Wntteb
j!}oust of Jt\tprtsentatibts
COMMITTEE ON ENERGY AND COMMERCE
2125
RAYBURN HousE OFFICE BuiLDING
WASHINGTON,
DC 20515-6115
Majority 1202) 22!>-2927

Minority 1202) 22!>-3641
May 14,2014
Chairman
445 121h Street, SW
strong, enforceable rules of the road to protect the free and open Internet. I appreciate your
May 15,2014.
under a ''paid prioritization" arrangement between broadband providers and content companies.
commend you for taking this step.
difficulty in establishing these rules has not been their substance. In 20 l 0, I led legislative
negotiations that produced the Open Internet Act of2010, which would have prohibited blocking
ofwebsites and unjust or unreasonable discrimination by wireline broadband Internet service
The Honorable Tom \v11eeler

May 14,2014
Page2
legislation were codified in the FCC's 20 l 0 open Internet rules. They remain a sound foundation
for the rules you are considering.
the FCC has the authority to adopt these rules if the FCC reclassified broadband Internet
the D.C. Circuit decision in Verizon v. FCC recognized that the open Internet rules would have
been upheld if the FCC had not "chosen to classify broadband providers in a manner that
exempts them fiom treatment as common ca!1'iers." 1
open Internet rules without taking the step of classifying broadband Internet service as a
because it would cmTy with it the authority of the FCC to regulate rates in a future proceeding.
to forbear fiom applying most of the requirements ofTitle II to broadband service, including
forbearing tlom rate regulation.
The D.C. Circuit's decision in Veri::on undercuts the providers' position because the
court held that the FCC has authority to regulate broadband under section 706 of the
Telecommunications Act without Title II reclassification. Section 706 expressly provides that
the FCC can utilize "price cap regulation" and other measures to remove baniers to
infrastructure investment and promote broadband deployment. 2 This means that broadband
Internet service providers are subject to potential rate regulation whether they are regulated
under Title II or section 706. A voiding the remote possibility of rate regulation is no longer a
persuasive rationale tor avoiding the invocation of the Commission's Title II authority.
I believe the time has come tor the FCC to stop putting vitally important open Internet
section 706 as the prefened basis of authority, as this may generate less opposition fiom some
quarters than proceeding under Title II. But the FCC should also use its undisputed Title ll
reinstatement of the no-blocking and nondisciimination protections under Title ll of the
Communications Act in the event that the courts once again invalidate the strong open Intcmct
rules under section 706. These could include using Title IT as "backstop authority," issuing one
order under section 706 and a contingent order under Title II, or reclassifying broadband Internet
requirements while the section 706 rules remain in effect. This approach will allow the FCC to
Veri::on v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

See 47 U.S.C. 1302(a).

May 14,2014
Page3
strategy may actually ward off court challenges.... Attempting to invalidate the rules with
carriers unable to blame anyone but themselves." 3
gatekeepers online. I urge you and your colleagues to move forward with your Notice of
item.
Sincerely,
Ranking Member
cc:

Commissioner
Commissioner
3
the New Yorker, The Solution to the F. C. C.'s Net-Neutrality Problems (May 9, 2014)
(online at www.newyorker.com/onlinelblogs/elements/2014/05/tom-wheeler-fcc-net-neutralityproblems.html).

May 14,2014
Page4

Commissioner
Commissioner
From: info=ppionline.orq@mail.salsalabs.net [info=ppionline.org@mail.salsalabs.net] on behalf of Progressive Policy

Institute [info@ppionline.org]
Sent: Thursday, February 27, 2014 4:07PM
To: John B. Adams
Subject: RSVP Today: New Principles for a Progressive Broadband Policy
John -Please join us for our upcoming panel: New Principles for a Progressive
Broadband Policy on March 13th at the Mayflower Renaissance Hotel to
discuss the recent FCC broadband regulation proposals.
The regulatory landscape governing the arrangements between broadband
providers and content providers is in flux. The D.C. Circuit recently struck down
certain portions of the FCC's Open Internet Order, and
this weekend
Netflix reportedly agreed to pay Comcast pursuant to a "peering arrangement"
to ensure Netflix's online videos are streamed smoothly.
In the wake of these developments, the FCC is contemplating the design of an
adjudication regime under its section 706 authority to resolve potential disputes
in the Internet space. PPI will host a panel of legal and economic experts to
offer their advice on (1) the proper objective of the case-by-case regime, and
(2) how enforcement of that regime would work in practice . Panelists will asked
to explain how their proposed solutions are consistent with stimulating
1
broadband deployment and innovation among content providers.
New Principles for a Progressive Broadband

Policy
March 13, 2014
9-11 a.m.
at
The Mayflower Renaissance Washington
Chinese Ballroom
1127 Connecticut Ave. NW
RSMP to attend tliis eve11t:

Featured Event Speakers
Stuart Benjamin, Duke Law School
Kevin Werbach, Wharton School, University of Pennsylvania
Hal Singer, Progressive Policy Institute
Ev Ehrlich, Progressive Policy Institute
Michael Mandel, Progressive Policy Institute (Moderator)
Breakfast will be served at 9 a.m. and the panel will begin promptly at 9:30
a.m.
Make sure you follow the conversation on Twitter with #Open Internet. If you
are unable to join us in person, watch the live webcast of the event.
Regards,
Progressive Policy Institute
Instantly.
From: MCKOY, GLENIS [mailto:qm909q@att.com]
Sent: Wednesday, May 14, 2014 11:02 AM

To: Jonathan Sallet; Daniel Alvarez; Nicholas Degani; Amy Bender; Rebekah Goodheart; Priscilla Argeris
Subject: AT&T Open Internet Ex Parte

Good Morning All:
Attached please find AT&T's Ex Parte Letter filed this morning with the FCC regarding Open Internet. If you have
questions, please contact Robert Quinn at 202-457-3851. Thanks!
Glenis McKoy
Executive Assistant
Office of the Senior Vice PresidentFederal Regulatory and Chief Privacy Officer
AT&T Services, Inc.
1120 20th Street, NW Suite 1000
Phone-202-457-2080
Fax-202-457-2020
This e-mail and any files transmitted with it are AT&T property,.are confidential, and are intended solely for the
use of the individualor entity to whom this email is addressed. If you are not one of the named recipient(s) or
otherwise have reason to believe that you have received this message in error, please notify the sender and
delete this message immediately from your computer. Any other use, retention, dissemination, forwarding,
printing, or copying of this e-mail is strictly prohibited.
at&t
Robert w. Quinn, Jr.

AT&T Services, Inc.

1120 20th St. NW, Suite 1000
Phone 202 457-3851
Fax 202 457-2020
May 14,2014
VIA ELECTRONIC SUBMISSION
Marlene H. Dortch
Secretary
Re:
Dear Ms. Dortch:

Last Friday, AT&T filed an ex parte identifying some of the many issues raised by, and
Title II telecommunications services. 1 We further pointed out the folly of running these risks
them under the carpet with the facile claim that forbearance can fix everything. 2 But as AT&T
noted, the prospect of countless, reversible forbearance determinations - not to mention
uncertainty that would fly in the face of the Administration's goal of promoting broadband
investment. And in all events, forbearance would not address the many serious implications of
reclassification.
telecommunications service component, what would be the logical or legal basis on which the
1
Letter of Robert W. Quinn, Jr., AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed May 9,
2014) (May 9'h Ex Parte).
2
Jon Brodkin, AT&T claims common carrier rules would ruin the whole /ntemet, Ars Technica (May 9, 2014) ("'As
usual, AT&T's positions are laughable at best-though disingenuous is more like it,' Matt Wood, policy director of
consumer advocacy group Free Press, told Ars. 'Nothing in Title II says that every last provision has to apply to any
Title II service. That's the whole point of forbearance. The fact that broadband providers could be entitled to
something doesn't mean they actually are entitled to it, or that AT&T' s cost-causation story is true."'), available at
http://arstechnica.com/tech-policy/2014/05/att-claims-common-carrier-rules-would-ruin-the-whole-intemet/ (last
checked May 13, 20 14). !d. ("Public Knowledge Senior VP Harold Feld agreed. 'To a large extent, this is just
scary mumbo-jumbo to make Title II loop big and complicated,' Feld told Ars.").
no idle concern. The Commission itself, in its seminal Stevens Report, noted this very issue:
"[I]f we interpreted the statute as breaking down the distinction between information services
and telecommunications services, so that some information services were classed as
all, or essentially all, information services did not fall into the telecommunications service
Internet as a
category ."3 Thus a broad array of entities that provide transmission over
component of what is today considered only an information service might find themselves
subject to Title II to the same extent as providers of mass market broadband Internet access
providers of services over connected
providers, content delivery networks, transit
messaging sessions.4 Anyone concerned with "saving the Internet" should be alarmed by that
in its tracks, it is by no means the only issue of concern raised by the possibility of
reclassification. AT&T' s May 9 11 Ex Parte attempted to identify some of the. other issues to
point out that reclassifying broadband Internet access as a Title II service would open a
that warrant consideration. For example, as the Commission noted in the Stevens Report, "[t]he
classification of information service providers as telecommunications carriers ... could
encourage states to impose common-carrier regulation on such providers. Although section
lO(e) of the Act precludes a state from applying or enforcing provisions of federal law where the
Commission has determined to forbear, it does not preclude a state from imposing requirements
derived from state law."5 Moreover, as the Commission further noted, "while it has authority to
authority to avoid imposing the full range of telecommunications regulation on information
services." 6
There are also issues as to how forbearance could be implemented. For example, can the
Commission forbear from substantially all of Title II on a blanket basis, or would the
Commission have to separately identify each and every statutory provision and regulation under
3
Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Red 11501,
11529, para. 57 (1998) (Stevens Report).
It would be no answer to claim that some of these entities do not provide telecommunications "for a fee." In
interpreting the phrase "for a fee" in the definition of "telecommunications service," the Commission has concluded
payment. Federal-State Joint Board on Universal Service, CC Docket No. 96-45, First Report and Order, 12 FCC
Red 8776, 9177, para. 784 (1997). Every commercial entity offering services or content over the Internet does so
their usage of the Internet.
5
Stevens Report at para. 48.
6/d.
Title II and separately apply the three-part forbearance test to each. We note, in this regard, that
the Commission requires precisely that level of disaggregation in forbearance petitions.
To the extent the Commission is not closing the door to Title II reclassification in its
NPRM, the Commission must ask questions and obtain a record regarding these and other
implications of reclassification and what all this means for the future of the Internet and the goal
of promoting broadband investment and deployment. The Commission also should seek
comment on how Title II reclassification could possibly even prevent paid prioritization. As we
noted in our May 9 Ex Parte, even dominant carriers have long been permitted to provide paid
prioritization under Title II, and AT&T is aware of no theory under which section 202 could be
addresses what types of discrimination are permitted and what types are not by a
show that paid prioritization arrangements are inherently (or even generally) unreasonable, a
general prohibition on unreasonable practices in section 201 cannot trump the more specific
imperative that the Commission fully explore all of these issues if it is to give any further
stirring up mass hysteria with misleading pronouncements, and dismissing skeptics with derisive
Respectfully Submitted,
/s/ Robert W. Quinn, Jr.
cc:
Jonathan Sallet
Daniel Alvarez
NickDegani
Amy Bender
Rebekah Goodheart
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5/14/2014
From: Cavender, Joseph [ mailto:Joseph.cavender@Level3.com]
Sent: Friday, February 21, 2014 4:51PM

To: Tim Brennan; Robert cannon; Jonathan Sallet; carol Simpson; Stephanie Weiner
Cc: Nixon, Marcellus
Subject: Level 3 ex parte
All,
Thank you very much for meeting with us today. Attached please find an ex parte covering our meeting, as filed this
afternoon. Please feel free to contact us if you have any questions.
Best,
Jo e
Joseph C. Cavender
Vice President, Federal Affairs
Level 3 Communications, LLC
1220 L Street, NW, Suite #660
(571) 730-6533
TH IS MESSAGE M AY BE ATIORNEY-CLIENT OR OTHERWISE PRIVILEGED. IF YOU BELIEVE YOU RECEIVED THIS MESSAGE IN ERROR,
PLEASE DELETE IT AND NOTIFY ME. THANK YOU.
Joseph C. Cavender
Vice President
Federal Affairs
Levei(3X
Tel: (571) 730-6533

joseph.cavender@ level3.com
February 21, 2014
Ex Parte
Secretary
445 12th Street, SW
Re:
Protecting and Promoting the Open Internet, GN Docket No. 14-28; Preserving
the Open Internet, GN Docket No. 09-191
Dear Ms. Dortch:

On February 21, 2014, Marcellus Nixon and I, on behalf of Level 3 Communications,
LLC ("Level 3"), met with Jon Sallet and Stephanie Weiner of the Office of General Counsel;
Carol Simpson of the Wireline Competition Bureau; Robert Cannon of the Office of Strategic
Planning & Policy Analysis; and Tim Brennan, Chief Economist. The attached presentation was
provided to the Commission participants in the meeting.
During the conversation, the Level 3 representatives explained that Level 3 has observed
that consumer demand for video is driving significant growth in overall traffic volume on the
Internet. The same demand for streaming video, including consumer demand to stream video to
multiple devices, is driving consumers to purchase: i) Internet connections from their ISPs that
offer higher and higher advertised speeds, and ii) Internet connections with download speeds that
are much greater than upload speeds. The fact that more data today flows towards as opposed to
away from consumers is because the ISPs facilitate it, and the ISPs' customers demand it. 1
The Level 3 representatives further explained that while content providers such as
streaming video services have multiple competitive options for delivering their content to the ISP
whose end users have requested it, the ISP itself offers the only path for that content to reach the
end user. And some, though not all, large ISPs-which notably offer their own, competing video
services-are leveraging that bottleneck control over access to their users, demanding arbitrary
tolls from providers like Level3 who carry Internet traffic requested by the ISPs' end users to
the ISPs' own networks. This is content the ISPs have committed to make available to their
consumers, but which the ISPs alone cannot provide.
1
Notably, traffic direction on the Internet has nothing to do with network costs. Costs are impacted by
the volume of traffic and the distance it is carried.
Marlene H. Dortch
February 21, 2014
Page2
If Level 3 will not pay these arbitrary and discriminatory tolls, these ISPs refuse to
augment interconnection capacity that is congested to a degree that any network engineer would
agree must be augmented for the Internet to function properly. As a result, the interconnection
ports between these ISP networks and the Level 3 network remain congested, resulting in
dropped packets and a degraded consumer experience. While the effects of. this congestion vary
from application to application, VoiP calls and speed-sensitive online streaming applications are
likely the most significantly impacted, widely-used applications. For millions of consumers,
they may become virtually unusable. Of course, the ISPs' own, competing video service will be
unaffected.
These tolls are pernicious and unwarranted. Aside from being a flagrant example of
monopoly rent-seeking, they are a direct threat against the promise and potential value of the
Internet, and particularly the potential value of competing video services. First, it is difficult to
envision how a toll on- third-party-provided video content can be assessed in a nondiscriminatory way against video services provided by the ISP itself, which would amount to the
ISP "paying itself' the toll. Further, even if these tolls are imposed in a facially neutral way, any
toll that applies "equally" to all traffic will have a disproportionate effect on online video
services, which transmit larger amounts of data (roughly 4GB for an HD movie) than, say, email
service. And again, online video is also much more sensitive to the effects of congestion if the
toll is not paid: buffering, stopping and starting, and pixilated video may render such services
essentially unusable, while an email that takes even a minute longer to arrive than it otherwise
would is unlikely to cause a user much frustration. ISPs that are attempting to charge these tolls
are leveraging their bottleneck control to advantage their own video services and to increase their
rivals' costs while pocketing a tidy monopoly profit all at the same time-all at significant cost
to consumers and harm to the value of the Internet.
The Level3 representatives further observed that, in Level3's view; the Commission's
Open Internet rules, by failing to address peering, had failed to address these serious problems.
Increased consumer demand for online video services, the fact that online video services are such
a large fraction of online traffic, and the fact that online video services are particularly vulnerable
to the effects of congestion mean that there is functionally little difference between the type of
"discrimination" addressed by the Commission's former rules and the type of behavior actually
practiced by some ISPs but arguably permitted under those rules.
Level 3 stands ready to work with ISPs to ensure that their users can access the Internet
content they wish with acceptable performance. And many ISPs, to their credit, are investing to
expand interconnection capacity rather than leveraging their users' increased demand as an
excuse to exploit their bottleneck control over those users. But the Commission should ensure
that it doesn't make the same mistake again. It should ensure that it protects against abuses by
bottleneck ISPs no matter whether those abuses come in the form of explicit discrimination or
the kind of anticompetitive, monopoly rent-seeking conduct Level 3 has observed, and that it
continues to observe today.
Marlene H. Dortch
February 21, 2014
Page3
Please do not hesitate to contact me if you should have any questions.
Sincerely,
Is/ Joseph C. Cavender

Joseph C. Cavender
cc:
Tim Brennan
Robert Cannon
Jon Sallet
Carol Simpson
Stephanie Weiner
i
"
"
By 2017, average global broadband speed will

grow 3.5-fold, from 11.3 Mbps (2012) to 39
Mbps (2017).
Consumer Internet video will be 69%) of all consumer traffic in 2017, up from 57o/o
in 2012. All video, including peer-to-peer (e.g., BitTorrent), will be 80-90o/o of
consumer traffic.
Content Delivery Networks (CONs) will deliver almost 2/3rds of all video traffic and
over half of all Internet traffic by 2017.
2014 Level 3 Communications, LLC. All Rights Reserved.
Busy-hour traffic is growing faster than

average traffic; will increase 3.5x 2012-2017
compared to 2.9x for average traffic.
Source: Cisco VNI Report 2013
By 2017, global traffic will reach 1.4 zettabytes

annually, up from 523 exabytes in 2012
(equivalent to 350 billion HD movies in 2017).
Consumer Video Demand Driving Internet Traffic Growth
J!.l!rl.oi'tl'itrt':Xi<1 b!li'+l>tm.
WebMD
Internet Content
Companies
ly
... ...
ISP
' ..... , ....
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.... .... .... ....... __
Option 3: Purchase CDN services
Option 2: Purchase IP transit
Build own backbone over fiber or

transport purchased from third party
.. .. .
<
Reach Consumer's
the Consumer
Option 1: Build or buy backbone and peer directly
Fol
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Consumers are trying to access content, and Level 3 is ready and willing to augment interconnection capacity to deliver
it, but the ISP refuses to deploy the infrastructure necessary to meet its own users' demand unless Level 3 pays a toll
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leverage that bottleneck
typical Level 3 interconnection port with one ISP that has its own video service
have decided
11
11
icati
But ISP tolls that facially apply equally to all traffic are effectively tolls on the most
bandwidth-intensive services - video services that compete with the ISP's own video
services.
An ISP intent on discriminating against competing video services doesn't need to do

anything -the ports are already congesting, and demand is just increasing.
This is a problem today. And failing to address it will mean less innovation,
less competition, and less consumer benefit from the Internet.
From the consumer's perspective, the effects of an ISP actively discriminating

against competing video services are similar to the effects of an ISP refusing to
supply interconnection
capacity
to meet
the consumer's
demand.
.
.
.
.
.
.
.
ISP tolls that would apply only to competing video services would run afoul of the
Open Internet Order.
The FCC's Open Internet Order addressed "discrimination" issues but not
"peering" issues. But they are related.
li
FOIA Exemption 5
From: Neil, Mark [mailto:MNeii@NMG.ORG]

Sent: Thursday, April 03, 2014 11:11 AM
To: Emmitt carlton
.
Cc: Rashatwar, Rupalee <rrashatwar@NMG.ORG>
2
Subject: NAAG Spring Consumer Protection conference

Emmitt,
I wanted to follow up on our conversation back in February about the NAAG Spring Consumer Protection conference .
here in Washington. I wanted to see if someone from the FCC might like to make a short (no more than 30 minutes)
presentation on net neutrality or anything else you think might be of interest to the consumer protection folks. The
opening I have would be sometime in the morning on Tuesday May 20.
I look forward to hearing from you.
Mark
Mark M. Neil
NAGTRI Program Counsel
National Association of Attorneys General
2030 M Street, NW
202.326.6019
www.naag.org
Email: mneil@naag.org
IJ
From: Dave Burstein [ mailto:daveb@dslprime.com]

towards a gigabit Webinar tomorrow
Gov and policy people: You can't understand the net neutrality debate without the best
data on whether networks are really congested. Dave Clark of MIT has the facts and
they are very different from what most of Washington believes. Dave is a net neutrality
skeptic, I believe, but facts are facts. Cioffi and Clark will also explain why the engineers
think 100 megabits and more is becoming practical and affordable. Do join or ask me for
a transcript after. db Here's the invite.
FolksTwo world class experts will point to the way to affordable Internet gigabits and the
Internet soon to come. Internet Hall of Famers John Cioffi of Stanford and MIT?s Dave
Clark lead a Marconi Society Expertise webinar. P'm moderating and guarantee it will be lively.
Thursday May 8 10 a.m. California, 1 p.m. New York, 6 p.m. London

No charge; just register at http://bit.ly/1cNGfrK
Short presentations and plenty of time for questions. Do join us . .
Cioffi is working on ways to combine advanced DSL and WiFi to inexpensively deliver
hundreds of megabits and even a gigabit. Vectored DSL, Cioffi?s invention, is now
proven to deliver 100 megabits over a short loop. Gigabit WiFi chips are now shipping.
Combine the 10 or 30 WiFis visible in most urban areas and a gigabit is in reach. He?s
CEO of ASSIA, developing some of the systems needed for this and managing DSL.
(Marconi fellow Cioffi also will speak at a very strong Upperside event in Paris May 2122 on fast DSL. 1?11 be speaking as well. Say hello to the round fellow with a beard.)
http://bit.ly/1c8GXwP
Clark has recently done empirical work on network congestion - or lack thereof. ?Can
t he Internet keep up with hundreds of gigabits to homes?? Clark has done seminal work
on the design of the future Internet. He was Chair of what?s now called the Internet
Architecture Board.
Dave Burstein
Moderator for the Marconi Society, sponsor of this email
More, including biographies, http://bit.ly/lhye6ip
Mailing sponsored by The non-profit Marconi Society. Reply "un" to be removed from
the list
From:
Sent:
To:
Subject:
Congressional Internet Caucus AC <icac@netcaucus.org>

Thursday, May 15, 2014 11:53 AM
Claude Aiken
Rayburn Debate on FCC Net Neutrality I Spectrum Plans- Lunch Friday 5/16
Dear Claude,
You are invited to Friday's lunch briefing on ....
The FCC's Grand Internet Plans: "Net Neutrality .. and Massive Mobile Spectrum
Auctions: What Do You Need to Know?
Today the Federal Communications Commission (FCC) unveiled two major plans that may significantly affect the growth
and vibrancy of the Internet (FCC announcement here). You have undoubtedly heard about "Net Neutrality," also called
Open Internet, and the broadcast Spectrum auctions.
We have assembled a balanced panel of experts to explain these FCC plans and to provide some analysis on what
Members of Congress need to know and what they expect will happen next (boxed lunch will be served). Join this
important briefing on Friday, May 16 at 12:00 pm in the Rayburn House Office Building. The FCC's actions include 1) The
agency's new "Open Internet" Rules and 2) The auctioning of the prime slice of broadcast spectrum necessary to the
Mobile Internet.
Together with the Congressional internet Caucus we share the fervent belief that the internet is a powerful platform for
communications, commerce and democracy. These two issues are extremely important to the evolution of the Internet
and the FCC's plans will generate a lot of discussion.
Date: Friday, May 16, 2014
Time: 12:00 pm - 1 :20 pm
Location: Rayburn House Office Building, Room 2226
RSVP: Register via EventBrite (Please: Only RSVP if you will attend)
Speakers on the Open Internet/Net Neutrality Plan
Matthew Brill, Partner, Latham & Watkins [Bio]

Markham Erickson, Partner, Steptoe & Johnson [Bio]
Gus Hurwitz, Assistant Professor of Law, University of Nebraska College of Law [Bio]
Sarah Morris, Senior Policy Counsel New America Foundation [Bio]
Speakers on the Spectrum Auction Plan
"
Allison Remsen, Executive Director, Mobile Future [Bio]

Tim Donovan, Competitive Carriers Association [Bio forthcoming]
This widely attended educational briefing is hosted by the Congressional Internet Caucus Advisory Committee (/GAG),
part of a 501 (c)(3) charitable organization. Congressional staff and members of the press welcome. The !GAG is a private
sector organization comprised of public interest groups, trade associations, non-profits, and corporations. The /GAG takes
1
no positions on legislation or regulation. Rather, it's a neutral platform where thought leaders debate important technology
issues that shape legislative and administration policy in an open forum. We vigilantly adhere to our mission to curate
balanced and dynamic debates among Internet stakeholders. Our volunteer board members ensure that we dutifully
execute that mission. More information on the !GAG is available at www.netcaucus.org.
This e-mail was sent from Internet Education Foundation (Congressional Internet Caucus AC ) to claude.aiken @fcc.gov.
To unsubscribe, please click on this link and follow the instructions: Unsubscribe
. Internet Education Foundaiion.1634 I Street NW Suite i 1Oi Washinaton DC 20006. Phone Number:202-638-43f'O ext. 318, Fax Numbr,w , E:m,'1
Address: cmatsuda@ neted.onJ. Website : http://www.neted.org/
From:
Sent:
To:
Subject:
Attachments:
Tasha Kinney
Jonathan Sallet; Julie Veach; Stephanie Weiner; Matthew DelNero
Attendees List for today's meeting at 1:00pm
PublicinterestOI.docx
Public Interest Open Internet Meeting (May 1st at 1:00PM)
Attending
Matt Wood, Free Press

Craig Aaron, Free Press
Andy Schwartzman, Georgetown University
Cheryl
United Church of Christ
Todd O'Boyle, Common Cause

Barbara Van Schewick, Stanford (By Phone) 650-561-4539
John Vezina, WGAW (By Phone) 323-782-4875
Sarah Morris, New America Foundation
Ellen Stutzman, WGA W (By Phone) 323-782-4875
Gabe Rottman, ACLU
Chris Calabrese, ACLU (By Phone)
David Sohn, CDT
Corrine Yu, Leadership Conference for Civil Rights
Michael Weinberg, Public Knowledge
Chris Riley, Mozilla, By Phone
Hazeen Ashby, National Urban League
Michael Scurato, National Hispanic Media Coalition
Tim Wu (By Phone) 415-690-0688
Sandra Fulton, ACLU
Mark Cooper, Consumer Federation of America
Not attending
Gene Kimmelman, Public Knowledge

Alan Davidson, New America Foundation
Michael Copps, Common Cause
Amalia Deloney, Center for Media Justice
Rashad Robinson, Color of Change
Kevin Werbach, University of Pennsyvlania
Susan Crawford, Harvard University
Kim Gandy, National Organization for Women
Delara Derakshani, Consumers Union
Marvin Vargas, WGAW (By Phone)
Malkia Cyril, Center for Media Justice (By Phone)
From:
Sent:
To:
Cc:
Subject:
Attachments:
Hanser, Russell <RHanser@wbklaw.com>

Monday, April 21, 2014 5:18 PM
Jonathan Sallet; Henning Schulzrinne; Matthew DelNero; Claude Aiken
Tramont, Bryan; Jeffrey Campbell (campbell@cisco.com); Mary Brown
(marybrow@cisco.com)
Cisco Systems Ex Parte Letter
Cisco WBK Ex Parte Letter 042114 FINAL. pdf
All,
Attached please find the ex parte letter that Cisco Systems, Inc. filed today in connection with the
April 17 meeting regarding the Open Internet Remand matter.
Best regards,
Russ Hanser
WI LK. I NS O N) BARKER) KNA UJ; R) LLP

RUSSELL
P.
HANSER
PARTNER
2300 N STREET, NW
SUITE700
WASHINGTON, DC 200371128
MAIN 202.783.4141
DIRECT 202.383.3408
FAX 202.783.5851
RHANSER@WBKLAW.COM
WWW.WBKLAW.COM
Thi s electronic message transmission contains information from the law firm of Wilkinson Barker Knauer, LLP which may be
confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the
intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you
have received this electronic transmission in error, please notify us by telephone at 202.783.4141 or by electronic mail
administrator@wbklaw.com immediately.
WILKINSON) BARKER) KNAUER) LLP
2300
N STREET, NW
SUITE
700
WASHINGTON,
DC 20037
TEL
202.783.4141
FAX
202.783.5851
WWW.WBKLAW.COM
RUSSELL P. HANSER
April21, 2014
VIAECFS
Marlene H. Dortch, Secretary
445 12th Street SW
Re:
Open Internet Order Remand Proceeding (GN Dkt. No. 14-28)
Dear Ms. Dortch:

I am writing pursuant to Section 1.1206(b)(2) of the Commission's Rules to notify the
Commission that on Thursday, April 17, Mary Brown and Jeffrey Campbell, both of Cisco
Systems, Inc. ("Cisco"), as well as Bryan Tramont and the undersigned, both of Wilkinson
Barker Knauer, LLP, met with Jonathan Sallet, Henning Schulzrinne, and Claude Aiken of the
Office of General Counsel and Matthew DelNero ofthe Wireline Competition Bureau to discuss
the above-referenced matter.
During the meeting, Cisco noted that recent decisions made by foreign governments
threaten to undercut innovation and investment in the broadband Internet ecosystem. These
governments will be closely watching this proceeding as it unfolds in the United States. Cisco
emphasized that the "specialized services" exemption was an extremely important component of
the balance struck by Commission's 2010 Open Internet Order, and should be retained in any
future regime. Further, Cisco urged the Commission not to pursue a constricting definition of
"specialized services." Rather, in order to accommodate the quickly evolving and still-nascent
market for managed offerings, the Commission should focus on an approach that promotes the
development and deployment of specialized services that will benefit consumers without
impacting broadband Internet access services. Finally, Cisco discussed a proposal raised by staff
during the meeting that "specialized services" might be defined to include any IP-based services
that are not broadband Internet access service. Cisco stated that this approach could be workable
so long as it was applied flexibly to accommodate ongoing technological and market
developments.
WILKl N SON) BARKER) KNAUER) LLP
Marlene H. Dortch
April21, 2014
Page2
Is/ Russell P. Hanser

Russell P. Hanser
cc:
Jonathan Sallet
Henning Schulzrinne
Claude Aiken
Matthew DelNero
From:
Sent:
To:
Subject:
Attachments:
Barbara van Schewick"<schewick@stanford.edu>

Wednesday, March 05, 2014 1:17 AM
Carol Simpson; Claude Aiken; Henning Schulzrinne; Jonathan Sallet; Mark Stone;
Matthew DelNero; Rosemary McEnery; Stephanie Weiner; Thomas Spavins; Tim Brennan;
Aaron Garza; Peter Trachtenberg
Ex parte for meeting last Thursday
Parsons 2009 CRTC Summary of January 13 2009 ISP filings with February 9 2009
updates (for web).pdf; VON EU- Identified restrictions -on Internet access by mobile
operators .... pdf; Cooper 2013 How competition drives discrimination an analysis of
broadband traffic management in the UK. pdf; BEREC 2012 A view of traffic management
and other practices resulting Network Neutrality BoR 12_30.pdf; van Schewick 2014 FCC
ex parte 20140303.pdf
Dear all,
Thanks a lot for taking the time to meet with me on Thursday. I very much enjoyed our conversation. I attach the ex
parte letter and the attachments that I filed with it. As you will see, I included footnotes with references for most of the
issues we discussed, so that you can read more if you are interested.
Alissa Cooper did not want me to submit the chapters of her PhD as attachments to my ex parte, but she put them
online so that you can access and download them if you are interested. When I discuss her work in the ex parte, I cite to
the chapter and to the page numbers, so you should be able to find the relevant parts easily.
All insights from her thesis that I discussed during our meeting were from chapters 5-7 of her dissertation. They are
worth reading in ful l. You can download the chapters here: http://www.alissacooper.com/phd-thesis/, and you can find
the full bibliographic information for the thesis in the list of references of the ex parte.
1 hope
you find this helpful. Please let me know if you have any questions. I'm always happy to talk.
Best,
Barbara
Barbara van Schewick
Associate Professor of Law and (by Courtesy) Electrical Engineering Helen L. Crocker Faculty Scholar Director, Center for
Internet and Society Stanford Law School
Author of "Internet Architecture and Innovation," MIT Press 2010 www.netarchitecture.org
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA94305-8610
Phone: 650-723 8340
E-Mail: schewick@stanford.edu

Associate Professor of Law
Helen L. Crocker Faculty Scholar
Crown
Stanford, CA 94305-8610
Tel
650 723. 8340
Fax
650 725.0253
schewick@stanford.edu
March 3, 2014
ELECTRONIC FILING

445 12th Street, SW
Re: Notice of Ex Parte Meetings, GN Docket No. 09-191, GN Docket No . 14-28
Dear Ms. Dortch:
On February 27, 2010, I, Barbara van Schewick, had several meetings at the FCC.
GROUP MEETING
I met with Carol Simpson, Wireline Competition Bureau (WCB); Claude Aiken, Office of
General Counsel (OGC); Henning Schulzrinne, Chief Technology Officer; Jonathan Sallet,
Acting General Counsel; Mark Stone, Consumer and Government Affairs Bureau (CBG);
Matthew DelNero, WCB; Rosemary McEnery, Enforcement Bureau (EB); Stephanie Weiner,
OGC; Thomas Spavins, EB; Tim Brennan, Chief Economist; Aaron Garza, CGB and Peter
Trachtenberg, Wireless Telecommunications Bureau.
The discussion covered the following topics .
Evidence of Blocking or Discrimination

Opponents of network neutrality rules in the US often claim that network neutrality rules are a
solution in search of a problem. If network providers really do have an incentive to block or
discriminate against applications, content or services ("applications"), they argue, there would
have been a lot more instances of discrimination in the US.
This argument neglects that since the early 2000s, Internet service providers in the US
have been on notice that the FCC would intervene if they violated certain principles related to
network neutrality, and the FCC intervened (in Madison River and in the Comcast case) when
instances of blocking or discrimination occurred. Until 2005, many telephony network
providers were subject to non-discrimination requirements under Title II of the
lmjlire. Innovate. !.<'ad.
van Schewick ex parte Letter- March.J, 2014
Communications Act. AT&T and Verizon were subject to merger conditions related to network
neutrality. As Alissa Cooper shows in her recent PhD thesis, this regulatory context led the
providers of US telephony networks to establish organizational structures and processes that
ensured that technical decisions did not expose the companies to the risk of regulatory
enforcement of network neutrality principles. 1 After the FCC's Order against Com cast, US cable
operators adopted similar approaches. 2
Thus, instances of blocking and discrimination in the US market for wireline broadband
Internet access occurred in the presence of strong regulatory policies suppotiing network
neutrality. They do not tell us what happens in the absence of network neutrality rules.
In this respect, the experience of Europe and Canada (before 2009), which do not have
similar network neutrality policies, is much more relevant.
Evidence of Blocking or Discrimination in Europe

The European legal framework for network neutrality does not prohibit restrictions on the end
users' use of applications or services, but requires Internet access service providers to disclose
them. Still, many Internet service customers in the European Union are subject to restrictions on
their fixed or mobile Internet services. During the meeting, I summarized and discussed evidence
of blocking and discrimination contained in the following documents, which are attached to this
ex pmie letter:
The results of a survey of European Internet service providers by the Body of European
Regulators BEREC:
Body of European Regulators for Electronic Communications. 2012. A View of Traffic
Management and Other Practices Resulting in Restrictions to the Open Internet in
Europe. Body of European Regulators for Electronic Communications. BoR (12) 30.
A Paper by Alissa Cooper that contains detailed descriptions of discriminatory broadband
traffic management practices in the UK, based on interviews with the providers:
Cooper, Alissa. 2013. "How Competition Drives Discrimination: An Analysis of
Broadband Traffic Management in the UK." Paper presented at 41st Research
Conference on Communication, Information and Internet Policy (TPRC 41). Arlington,
Virginia, USA.
A non-exhaustive identification of restriction on Internet access by mobile networks by
the Voice on the Net (VON) Coalition Europe, mainly based on the operators' terms and
conditions, dated February 23, 2012
Voice on the Net (VON) Coalition Europe. 2012. Non-exhaustive Identification of
Restrictions on Internet Access by Mobile Operators
We also discussed the experience of the Netherlands and the blocking of ads by Free, the
second largest French ISP.
1
2
Cooper (2013b), Chapter 5, pp. 118-129.

-2-
van Schewick ex parte Letter- March 3, 2014
In 2011, the dominant provider of wireline and wireless Intemet services m the
Netherlands KPN announced plans to introduce packets for wireless Intemet service that blocked
the use of Intemet telephony and instant messaging applications like WhatsApp in KPN's basic
Intemet service offerings, but allowed users to pay an extra fee to KPN to be able to use these
applications. These plans led to a public outcry and motivated the Netherlands to adopt the first
network neutrality law in Europe. 3
In January 2013, the second largest French Intemet service provider Free introduced a
software update to its router that automatically blocked ads in Intemet traffic delivered to the
subscriber. While the motivations are unclear, press repmis indicated that the move was intended
to put pressure on Google to compensate Free for the traffic created by YouTube. Free removed
the block after the French minister for the digital economy intervened. 4
Evidence of Blocking or Discrimination in Canada

In Canada, the 2009 investigation of the Canadian Regulatory Agency CRTC into Intemet
service providers' network management practices showed that at the time, many Canadian
providers were singling out peer-to-peer file-sharing applications for special treatment, throttling
the bandwidth available to them or interfering with these applications in other ways. 5
As part of its proceeding regarding Intemet traffic management practices, CRTC required
all providers to answer a detailed set of questions regarding their traffic management practices.
The filings are all part of the public record on the CRTC website. The attached document by
Christopher Parsons, a PhD student at the time, summarizes the filings.
Parsons, Christopher. 2009. Summary of January 13, 2009 CRTC Filings by Major ISPs
in Response to Interrogatory PN 2008-19 with February 9, 2009 Updates.
Evidence of Blocking or Discrimination in the US

We also discussed the practice of search query hijacking in the US, a practice that was
discovered and investigated by a group of researchers from the Intemational Computer Science
Institute in Berkeley, Califomia, together with Peter Eckersley from the Electronic Frontier
Foundation in 2011. 6 In August 2011, the practice was described in a press repoti as follows: 7
"Searches made by millions of intemet users are being hijacked and redirected by some
intemet service providers in the US. [ ... ]The hijacking seems to target searches for certain wellknown brand names only. Users entering the term "apple" into their browser's search bar, for
3
See, e.g., Sterling (2011).

See, e.g., Farivar (2013); Pfanner (2013).
5
For an overview of Canadian providers network management practices as disclosed during the proceeding, see
Parsons (2009). Since then, most of the larger Canadian Internet service providers, most recently Bell Canada and
Bell Aliant, have changed their practices in response to the regulations regarding network management that the
CRTC adopted following its investigation. In January 2012, Rogers remained the only larger Canadian provider that
was still engaging in discriminatmy network management. Schmidt (2012); Geist (2011).
6
Kreibich, et al. (20 11 b); Kreibich, et al. (20 11 a).
7
Giles (2011).
4
- 3-
example, would normally get a page of results from their search engine of choice. The ISPs
involved in the scheme intercept such requests before they reach a search engine, however. They
pass the search to an online marketing company, which directs the user straight to Apple's online
retail website.
More than 10 ISPs in the US, which together have several million subscribers, are
redirecting queries in this way (see below for a complete list)."
The practice was designed to increase Internet service providers' revenue by allowing
them to collect refenal fees. 8
Impact of Application-Specific Traffic Management on Application Providers
Alissa Cooper's PhD thesis provides interesting data regarding the impact of application-specific
traffic management on application providers, which I summarized in the meeting. 9 In the UK,
application-specific traffic management not only negatively affected targeted applications, but
often adversely affected applications (e.g., gaming applications) that the Internet service
providers did not intend to target. This created considerable performance problems for affected
applications. In response, application developers and network operators often had to expend
significant resources to address these problems, and had to do so on an ongoing basis.
The limits of Section 706 as a basis for network neutrality rules
We also discussed the limits of Section 706 as a basis for network neutrality mles.
Rules Focusing on Anticompetitive Blocking or Discrimination
Network neutrality proponents often think of discriminatory conduct that favors an application
over others as a distortion of competition and, therefore, as "anticompetitive," and assume such
behavior would be captured by an antitmst framework. This assumption is not conect. As I
discuss in detail elsewhere, the term "anticompetitive" has a much nanower scope in antitmst
law than an intuitive interpretation of the tenn would suggest: 10
First, US antitmst law only condemns a network provider's discriminatory behavior that
affects the market for a specific application, content, or service, if the network provider
participates in that market or is affiliated with a participant in that market. By contrast, network
neutrality proponents are also concerned about discrimination in application markets in which
the network provider does not participate.
Second, US antitmst law only condemns vertical leveraging or ve1tical foreclosure as
monopolization or attempted monopolization under Section 2 of the Sherman Act, if they are
reasonably capable of monopolizing the primary market or the secondary market. Thus, to be
classified as socially harmful under an antitmst framework, a network provider's discriminatory
8
Giles (2011).
Cooper (2013b), chapter 7, pp. 197-210.
1
For a detailed analysis with references to the literature, see van Schewick (2012b), Section "Ban Discrimination
that Violates an Antitrust Framework," pp. 17-22.
9
-4-
behavior in the market for a specific application must be reasonably capable of creating,
increasing or maintaining monopoly power in the market for that application or in the market for
Internet access services. By contrast, network neutrality proponents may classify discriminatory
behavior as socially harmful even if the behavior is unlikely to monopolize the application
market or the market for Internet access services.
Third, US antitrust law usually has very stringent requirements about the degree of
market power in the primary market that is required for vertical exclusionary conduct to be
considered problematic. By contrast, network neutrality proponents are also concerned about a
network provider's discriminat01y behavior if that network provider does not have a dominant
position in the local or nationwide market for Internet services.
Fourth, under an antitrust framework, discriminatory conduct that is justified by a
legitimate business purpose would be classified as socially beneficial. By contrast, network
neutrality proponents often classify discriminatory behavior as socially harmful even if it 1s
motivated by the network provider's desire to increase its own efficiency.
More generally, while an antitrust framework focuses on a narrow set of economic
harms, the theoretical framework underlying calls for network neutrality regulation addresses a
broader range of economic and non-economic harms. As a result, rules that ban behavior that is
anticompetitive or violates an antitrust framework would often classify differential treatment as
socially beneficial that network neutrality proponents would consider socially harmful, making it
impossible to successfully challenge behavior that network neutrality are concerned about.
The Open Internet Order embraced these arguments. Like most network neutrality
proposals, the FCC's Open Internet rules are based on the broader theoretical framework that
considers a broad range of economic and non-economic harms. 11 During the Open Internet
Proceeding, some commenters had supp01ied using an antitrust framework to distinguish socially
beneficial from socially harmful discrimination. The order explicitly rejected the view that the
non-discrimination rule should only prohibit discrimination that is "anticompetitive." 12
Problems with Case-by-Case Adjudication
We discussed the merits of adopting standards that specify criteria that will be used to judge
discrimination in the future. Whether certain discriminatory conduct meets these criteria would
be determined by the agency in future case-by-case adjudications.
11
Federal Communications Commission (2010), pp. 4-11, paras 11-19, pp. 45-46, para 78 and 47 C.F.R. 8.1.
Federal Communications Commission (2010), pp. 45-46, para 78: "We also reject the argument that only
"anticompetitive" discrimination yielding "substantial consumer harm" should be prohibited by our rules. We are
persuaded those proposed limiting terms are unduly narrow and could allow discriminatory conduct that is contrary
to the public interest. The broad purposes of this rule-to encourage competition and remove impediments to
infrastructure investment while protecting consumer choice, free expression, end-user control, and the ability to
innovate without permission-cannot be achieved by preventing only those practices that are demonstrably
anticompetitive or harmful to consumers. Rather, the rule rests on the general proposition that broadband providers
should not pick winners and losers on the Internet-even for reasons that may be independent of providers'
competitive interests or that may not immediately or demonstrably cause substantial consumer harm." (references
omitted)
12
- 5-
As I have explained elsewhere, 13 such approaches leave all decisions over the legality of
specific discriminatory conduct to future adjudications. This creates considerable social costs.
Case-by-case approaches fail to provide much-needed certainty to industry participants. Network
providers will not know which forms of network management are acceptable, which constrains
the evolution of the network more than necessary. Application developers will not know in
advance against which discriminatory conduct they are protected. This decision will only be
made after they have been discriminated against and gone through a long and expensive process.
The resulting uncertainty reduces their incentives to innovate and their ability to get funding.
Moreover, case-by-case approaches create high costs of regulation and tilt the playing field
against those -end users, low-cost application developers and stmi-ups - who do not have the
resources to engage in extended fights over the legality of specific discriminations in the future.
Finally, deciding the legality of specific discriminatory conduct in individual adjudications is
unlikely to lead to decisions that adequately protect the values network neutrality rules are
intended to protect.
The Role of Competition in the Market for Internet Services
We discussed how competition in the market for Internet services affects the need for network
neutrality rules.
Commenters often assume that competition in the market for Internet services will
remove any incentives to engage in blocking or discrimination. 14' 15 If there is competition and a
network provider discriminates against an application that users would like to use, they argue,
users can switch to another network provider that does not discriminate against the application,
and this threat of switching will discipline providers.
As I have explained elsewhere, these arguments fail to recognize that the market for
Internet service is characterized by incomplete customer information, product differentiation in
the market for Internet access and for wireless and wireline bundles, switching costs, and, in
some countries, a concentrated market structure in the market for Internet services. These factors
limit the effectiveness of competition, even in markets with several competing Internet service
providers, and reduce consumers' willingness to switch Internet service providers in response to
discriminatory conduct, giving network providers a degree of market power that enables them to
impose restrictions on their Internet service customers that they would not be able to impose in a
perfectly competitive market.
13
van Schewick (2012b), Section "Problems with Case-by-Case Approaches," pp. 25-32.
See, e.g., Litan & Singer (2007), pp. 552-554; Yoo (2007), pp. 504, 506, 511-515; Becker, Carlton & Sider
(2010). p. 505; Cave, et al. (2009), pp. 1-2.
15
The following two paragraphs are adopted from van Schewick (2012b), pp. 32-38. For a full discussion with
detailed references to the literature, see ibid., pp. 20, 32-38. For an earlier discussion, see van Schewick (2010a), pp.
259-264.
14
- 6-
In addition, relative to markets in which Internet service providers do not face any
competitors, competition in the market for Internet services may even increase Internet service
providers' incentives to block or discriminate. 16
In line with these theoretical arguments, network providers in markets that are more
competitive than the market for wireline, fixed Internet service in the US have engaged in
blocking or discrimination. 17 This evidence suggests that at least in the market for wireline
Internet service in Europe and Canada and in the market for mobile Internet service in the US,
competition does not prevent Internet service providers from interfering with applications,
content or services on their networks, even if, as in the US and in the European Union, network
providers are required to disclose any discriminatory conduct that occurs. 18
Alissa Cooper's recent PhD thesis provides additional insights into the limited ability of
competition to discipline Internet service providers. 19 First, she explains how competition in the
market for Internet services actually increased incentives to engage in discriminatory network
management among Internet service providers in the UK. 20 Second, the thesis highlights the
limited effectiveness of disclosure rules in educating consumers about traffic management
practices. In particular, although disclosures related to traffic management had been standardized
and Internet service providers expended considerable efforts to translate traffic management
measures into a language that consumers can understand, most subscribers did not understand
traffic management disclosures. 21 Third, the economic literature on switching costs often assumes
that sophisticated consumers who switch in response to discriminatory conduct will protect
unsophisticated consumers. Cooper shows that in the context of traffic management practices,
this assumption is not conect. 22 Fourth, she summarizes a large number of studies by OFCOM
that explored barriers to switching Internet service providers. 23
MEETING WITH COMMISSIONER CLYBURN AND STAFF
I also met with Commissioner Mignon Clyburn, Rebekah Goodheart, Legal Advisor- Wireline,
and Stefanie Frank, Intern.
16
See generally van Schewick (2010a), pp. 255-259 and, regarding incentives to engage in discriminatory traffic
management, Cooper (2013a) (based on a case study of broadband traffic management in the UK).
17
See, e.g., Cooper (2013a) (wireline Internet services in the UK); Body of European Regulators for Electronic
Communications (2012); Kroes (2012) (Europe) (European wireline and mobile Internet services); Parsons (2009)
(wireline Internet services in Canada); van Schewick (2011b) (Verizon Wireless/tethering applications); van
Schewick (2011a) (AT&T, Verizon Wireless, T-Mobile/Google Wallet); Ziegler (2012); Kang (2012) (AT&T/Apple
Facetime). See also van Schewick (2012a), pp. 21-22 (summarizing the evidence). On the amount of competition in
the market for Internet services in the US and Europe, see van Schewick (2012b), p. 34.
18
For the EU, see Articles 20 and 21 Directive 2002/22/EC of the European Parliament and of the Council of 7
March 2002, as amended by Directive 20091136/EC of the European Parliament and of the Council of25 November
2009 (Universal Service Directive). For the US, see 47 C.F.R. 8.3. On the effect of disclosure rules on network
providers' incentives to discriminate, see van Schewick (2012b), pp. 32-38.
19
Cooper (2013b ), Chapter 6, pp. 131-170; Chapter 7, pp. 184-196.
2
Cooper (2013b ), Chapter 6, pp. 131-170.

21
Cooper (2013b ), Chapter 7, pp. 186-190.
22
23
- 7-
We discussed evidence ofblocking and discrimination outside of the US and the limits of
Section 706.
MEETING WITH JONATHAN SALLET
I also met with Jonathan Sallet, Acting General Counsel. We discussed potential motivations for
engaging in blocking or discrimination, the conditions under which Internet service providers
have an incentive to discriminate, and the treatment of access fees in the Open Internet Order.
Motivations for Engaging in Blocking or Discrimination
First, Internet service providers may engage in blocking or discrimination to increase their
profits. This includes the following practices: 24
Blocking or discrimination against applications that compete with the ISPs offering or
with that of a partner; 25
Excluding applications to pnce discriminate among Internet service customers (e.g.,
allowing the use of video conferencing only for users of its premium Internet service, not
for users of its basic Internet service); 26
Discriminating among applications by charging different Internet transport prices for
different applications (e.g., charging higher Internet-service fees for an e-mail packet than
for a packet of Web content of equal size); 27
Other forms of blocking or discrimination that increase profits (e.g., search hijacking). 28
Second, Internet service providers may engage in blocking or discrimination to exclude

unwanted content that threatens the company's interests or does not comply with the network
provider's chosen content policy. 29
Finally, Internet service providers may engage in blocking or discrimination to manage
their networks. 30
24
For a detailed analysis of incentives to block or discriminate to increase profits, see van Schewick (201 Oa), pp.
222-264, 275-278.
25
van Schewick (2010a), pp. 222-264.
26
For a detailed analysis of network providers' incentives to engage in this strategy and of the impact on application
developers and users, see van Schewick (2010a), pp. 275-278 (price discrimination). For a real-world example of
this strategy, see Wu (2003), pp. 151-152, 165; van Schewick (2010a), p. 471 fu. 237 (price discrimination).
27
For a detailed analysis of network providers' incentives to engage in this strategy and of the impact on application
developers and users, see van Schewick (2010a), pp. 273-275 (application-specific pricing). Application-specific
pricing may also be used to discriminate among applications or classes of applications (van Schewick (2012b), p.
12). For a real-world example of this strategy, see (Allot Communications & Openet (2010), p. 7.
28
See footnotes 6 to 8 above and accompanying text.
29
For a more detailed discussion, including examples, e.g., van Schewick (2010a), pp. 266-270; van Schewick
(2012b), p. 18, Box 7.
30
See, e.g., van Schewick (2010a), pp. 264-266; van Schewick (2008), pp. 5-6.
- 8-
Incentives to Block or Discriminate 31

Network providers' ability to block or discriminate against applications can only affect
application innovation, if network providers have an incentive to block or discriminate.
An Internet service provider does not generally have an incentive to exclude applications.
After all, more applications make the network provider's Internet service more attractive,
allowing the network provider to attract more Internet service customers or charge a higher price
. .
37
to extstmg customers. There are, however, situations in which a network provider nevertheless has an incentive
to block specific applications or discriminate against them - to increase its profits (e.g., by
blocking applications that compete with its own offering or that of a partner, or by excluding
applications to price discriminate among its Internet service customers), to manage congestion
on its network, or to exclude unwanted content that threatens the company's interests or does not
comply with the network provider's chosen content policy. 33
In all of these cases, a network provider will only engage in exclusionary conduct if the
benefits of exclusion exceed the costs in the market for Internet services. 34 Notably, the incentive
to discriminate is often independent of whether the network provider participates in the market
for the affected application and whether the exclusionary conduct is capable of monopolizing the
market for that application. In other words, network providers often have an incentive to block or
discriminate against an application even if they do not participate in the market for that
application (e.g., when they block an application to manage congestion, block unwanted content,
or price discriminate in the market for Internet services), 35 and discrimination will often be
profitable even if it does not monopolize the market for the application in question. 36
31
The following paragraph is adopted from van Schewick (F01ihcoming 2014).

van Schewick (2010a), pp. 222-225. See also Whinston (1990), pp. 840, 850-852; Farrell & Katz (2000); Fanell
& Weiser (2003), pp. 89, 100-105.
33
For a detailed analysis of incentives to block, see, e.g., van Schewick (2010a), pp. 222-264, 275-278 (increase
profits), pp. 266-270 (block unwanted content), pp. 264-266 (manage congestion); van Schewick (2008) , pp. 5-6
(manage congestion).
34
van Schewick (2010a), p. 225. For a more detailed analysis of the costs of exclusionary conduct, see van
Schewick (2010a), p. 259-264; van Schewick (2012b), pp. 32-38.
35
van Schewick (2010a), p. 273, 277; van Schewick (2012b), pp. 37-38 (discussing examples). The impact of
blocking on application developers' incentives to i1movate stems from the blocking as such and is independent of
whether the network providers participates in the market for the application or not. By contrast, US antitrust law
only condemns discriminatory conduct in the market for a specific application if the network provider participates in
that market or is affiliated with a participant in that market. See van Schewick (2012b), pp. 37.
36
See van Schewick (2010a), p. 251-255, 264-270; Frischmann & van Schewick (2007), pp. 412-416. This chapter
focuses on the impact of discrimination on application developers' incentives to innovate. To reduce application
developers' incentives to innovate, the exclusionary conduct does not need to drive them from the market; it suffices
if it reduces their profits. By contrast, scholars who evaluate discriminatory conduct within a framework based on
US antitrust law will only be concerned about discriminatory conduct if the conduct if reasonably capable of
monopolizing the market for the affected application or the market for Internet services. For a detailed analysis of
this difference and references to the literature, see van Schewick (2012b), pp. 38-41. See also Frischmann & van
Schewick (2007), pp. 414 fn. 119, 416 fn. 128.
32
- 9-
Access Fees
We also discussed the treatment of access fees in the Open Internet Order.
Access fees come in two vmiants:
In the first, a network provider charges application providers who are not its Internet
service customers 37 a fee for the 1ight to access the network providers' Internet service
customers. Applications whose providers do not pay the access fee cannot be used on the
network provider's access network.
In the second variant, a network provider charges application providers for prioritized or
otherwise enhanced access to the network provider's Internet service customers. For example, if
an application provider has paid such an access fee, the application's data packets may receive a
better type of service (e.g., travel faster) on the network provider's access network or may not
count against a user's monthly bandwidth cap.
The Open Internet mles themselves do not address access fees. The text of the order
discusses the two types of access fees separately.
Fees for access to end users

The text of the order clearly prohibits network providers from charging application and content
providers for access to the network providers' Internet service customers (i.e. fiomjust charging
for access, without offering anything in return). 38
The order discusses this question in the context of the mle against blocking on the fixed
Internet. To the extent that the mles prohibit blocking of a specific application on the mobile
Internet, the no-blocking mle also prevents network providers from charging this application an
access fee. 39
Fees for prioritized or otherwise enhanced access to end users ("third-party-paid

prioritization'')
While the text of the order stops short of an outright ban of "third-party-paid prioritization"
arrangements, it seems to get as close to explicitly banning these arrangements as one can get
without explicitly banning them. The order explicitly endorses the concerns against these
arrangements, 40 unequivocally rejects the main arguments in favor ofthem, 41 and concludes that
"as a general matter," arrangements of this kind are "unlikely" to be considered reasonable. 42
37
Any Internet service provider can charge fees to customers of its Internet access service, regardless of whether
these customers are providers of applications or "normal" end users. In the past, Internet users directly paid fees for
Internet service only to their own Internet access provider.
38
Federal Communications Commission (2010), para 67.
39
See the explicit reference to para 67, which contains the access fee discussion, in the discussion of the rule against
blocking on mobile networks on p. 56, note 306 of the order.
4
Federal Communications Commission (2010), paras 76 and 24-34.
41
Federal Communications Commission (2010), paras 40 and 28.
42
Federal Communications Commission (201 0), para 76.
- 10-
van Schewick ex parte Letter
March 3, 2014
The Open Intemet order discusses the limits on access fees for prioritized or otherwise
enhanced access to end users in the context of the non-discrimination mle. Conceptually,
however, the mle as clarified by the text of the order is more accurately characterized as a limit
or ban on charging. If it was a non-discrimination rule, the mle would allow Intemet service
providers to charge this type of access fees, but require Intemet service providers to offer and
charge for enhanced access in non-discriminatory ways.
In addition, limits on access fees rest on different considerations than mles against
blocking or discrimination, and are therefore best treated separately- both in the text of eventual
mles and in their justification. 43
Should you have any questions, please do not hesitate to contact me.
Sincerely,
Is/ Barbara van Schewick

Associate Professor of Law and (by courtesy) Electrical Engineering
Helen Crocker Faculty Scholar
Faculty Director, Center for Intemet and Society
Stanford Law School
650-723-8340
schewick@stanford. edu
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van Schewick, Barbara. 2010b. Opening Statement at the Federal Communications
Commission's Workshop on Approaches to Preserving the Open Internet. Federal
Communications Commission.
van Schewick, Barbara. 2011a. "Is Verizon Wireless Illegally Blocking Google Wallet? It's
Time for the FCC to Investigate." Internet Architecture and Innovation. December 19.
https://netarchi tecture.org/20 11112/is-verizon-wireless-illegally-blocking-goo gle-walletits-time-for-the- fcc-to-investigate/
van Schewick, Barbara. 2011 b. "Public Interest Requires Public Input: V erizon/Android
Internet
Architecture
and
Innovation.
June
30.
Tethering."
https:/ /netarchitecture.org/20 11 /06/public-interest -requires-public-input-verizonandroidtethering/
van Schewick, Barbara. 2012a. Comments to European Commission's Public Consultation on
Specific Aspects of Transparency, Traffic Management and Switching in an Open
Internet. October 15.
van Schewick, Barbara. 2012b. Network Neutrality and Quality of Serilice: What a NonDiscrimination Rule Should Look Like. Center for Internet and Society White Paper.
van Schewick, Barbara. Forthcoming 2014. "Internet Architecture and Innovation in
Applications." In Handbook on the Economics of the Internet, eds. Johannes M. Bauer &
Michael Latzer: Cheltenham and Northampton, Edward Elgar.
Whinston, Michael D. 1990. "Tying, Foreclosure, and Exclusion." The American Economic
Review, 80(4): 837-859.
Wu, Tim. 2003. "Network Neutrality and Broadband Discrimination." Journal on
Telecommunications & High Technology Law, 2: 141-175.
Yoo, Christopher. 2007. "What Can Antitmst Contribute to the Network Neutrality Debate?"
International Journal of Communication, 1: 493-530.
Ziegler, Chris. 2012. "AT&T Only Allowing FaceTime Over Cellular on Mobile Share Plans, No
Extra Charge." The Verge. August 17. http://www.theverge.com/2012/8/ 17/3250228/attfacetime-over-cellular-ios-6-mobile-share
- 13-
Not Responsive
-
From:
,
---
Attachments:
Robert Cooper <RCooper@BSFLLP.com>

Wednesday, March 19, 2014 12:01 PM
Tim Brennan; Jonathan Chambers; Henning Schulzrinne; Thomas Spavins; Julie Veach;
Stephanie Weiner
Beury, Robert; James P. Denvir
Ex Parte Submission
Cogent Communications Group Ex Parte (3-19-14).pdf
Categories:
Yellow Category
Sent:
To:
Cc:
Subject:
All:
Attached please find an ex parte letter regarding our meeting yesterday. This letter was filed
electronically with the Commission this morning.
Please note that we did not have the names of everyone who attended the
meeting. Therefore, I would be grateful if you would share this letter with any other
attendees who may be interested.
Thank you again for meeting with us. Please do not hesitate to contact me with any questions.
Best regards,
Wisconsin Ave., N.W.

VVashington, DC 20015
202.237.2727 (main)
202.895.5211 (direct)
202.262.4240 (mobile)
202.237.6131 (fax)
or other use of this communication is strictly prohibited and no

the sender by replying to !ilis electronic message and then deleting tilis
is waived. If you
received
communication
message from your computer. [v.1]
B
530 .
I E
S ,
WISCOI\IS ! N AVENUl , N.W
H I L L
E R
WASH I NGTON . D. C
200 1 5
&
20 1 5 PH
N E R
202 237 . 2 / 27 FA X 202 . 237 . 613 1
March 19, 2014

VIA ELECTRONIC FILING
Secretary
445 twelfth Street, S. W.
Washington D.C. 20554
Re:
In the Matter of Preserving the Open Internet, GN Docket No. 14-28
Dear Ms. Dortch:

On March 18, 2014, the undersigned, counsel for Cogent Communications Group, Inc.
("Cogent"), met with several members of the Commission's staff. I was joined by Cogent's
Founder and ChiefExecutive Officer, Dave Schaeffer, Cogent's Chief Legal Officer, Bob Beury,
and my partner, Jim Denvir. The Commission staff in attendance included: Tim Brennan, Chief
Economist; Jonathan Chan1bers, Chief of the Office of Strategic Planning & Policy Analysis;
Hetming Schulzrinne, Chief Technology Officer; Thomas Spavins, Assistant Chief-Economics,
Enforcement Bureau; Julie Veach, Chief of the Wireline Competition Bureau; and Stephanie
Weiner, Office ofthe General Counsel.
During the meeting, Mr. Schaeffer provided an overview of Cogent's business and
explained the role that settlement-free peering among the major networks that, collectively,
comprise the global Internet has played in the Internet's extraordinary growth. Mr. Schaeffer
also described how increasing consumer demand for bandwidth-intensive Internet applications,
such as streaming video, has led to congestion at various interconnection points between Internet
backbones and certain broadband Internet service providers ("ISPs"). He emphasized that the
capital expenditures required to remedy congestion at interconnection points are extremely
modest. In light of this, Mr. Schaeffer observed that the unwillingness of particular ISPs to
augment their interconnections with Internet backbones is attributable either to their desire to
limit the competitive vitality oflnternet content that competes with vertically integrated services
they offer (e.g., video or voice) and/or the divergence between the capacity and functionality of
their own networks as compared to what they marketed and sold to their own customers.
As consumer demand for Internet bandwidth continues to grow, customers of those
broadband ISPs that are unwilling to augment their interconnection with other networks so as to
relieve congestion will, as Mr. Schaeffer explained, be left with an unpalatable choice of
congested service, usage caps and/or increased prices. While some large edge providers may be
able to pay a toll to create a way around such congestion, smaller firms will not, thereby driving
consumers to use better performing, vertically integrated content and stifling the investment and
innovation that has been the hallmark of the Internet since its inception.
WWW .BSFLLP .COM
BOIES,
SCHILLER
& FLEXNER
LLP
For these reasons, Cogent strongly supports reclassification that would permit the
Commission to exercise its authority under Title II of the Communications Act to regulate
broadband ISPs as common carriers.
Please direct any questions regarding this matter to my attention.
cc:
Tim Brennan
Jonathan Chambers
Henning Schulzrinne
Thomas Spavins
Julie Veach
Stephanie Weiner
From:
Sent:
Subject:
Attachments:
Matt Wood < mwood@freepress.net>

Tuesday, February 11, 2014 12:20 PM
Julie Veach
FW: Letter to Chairman Wheeler regarding Broadband Classification
Free Press_Feb 7 2014_FCC Letter.pdf
Categories:
Yellow Category
To:
Dear Julie,
Attached please find a copy of a letter that Free Press sent to the Chairman regarding broadband classification, Open Internet,
and technology transitions issues last week. We filed in the three relevant dockets, yet I thought I might send it to you directly
as well.
Thanks as always,
Matt
From: Microsoft Office User <mwood@freepress.net>

Date: Fri, 7 Feb 2014 16:18:11 -0800
To: Jonathan Sallet <Jonathan.Sallet@fcc.gov>, Philip Verveer <Philip.Verveer@fcc.gov>, Gigi Sohn
<Gigi.Sohn@fcc.gov>, "Daniei.Aivarez@fcc.gov" <Daniei.Aivarez@fcc.gov>
Cc: Derek Turner <dturner@freepress.net>
Subject: Letter to Chairman Wheeler regarding Broadband Classification
Dear all,
Attached please find a letter to Chairman Wheeler that Free Press filed this afternoon in the Commission's Open Internet,
Broadband Framework, and Technology Transitions dockets.
The letter articulates the continuing vitality of and necessity for common carriage communications networks- both to
promote free expression and economic activity in our nation, as well as to comport with the mandates of the Communications
Act.
We would welcome the chance to meet with you and discuss the contents of this letter in greater detail. In the wake of the
decision in Verizon v. FCC, the Commission has but one path and basis of authority available for it to preserve the open
Internet, maintain our network compact, and ensure the availability of affordable broadband telecommunications services for
all. Title II is the proper legal ground for any approach the Commission may take, either to adopt new "Net Neutrality" rules,
make "case-by-case" determinations on such issues, or promote the principles articulated in last week's Technology
Transitions item.
Best regards,
Matt Wood
Policy Director
www.freepress.net
(202) 265-1490 X. 36
1
MASSACHUSETTS
WASHINGTON
40 main st, suite 301

florence, rna 01062
tel 413.585.1533
fax 413.585.8904
1025 connecticut ave. nw, suite 1110

washington, de 20036
tel 202.265.1490
fax 202.265.1489
February 7, 2014
Chairman
Re: GN Docket No. 13-5, Technology Transitions
GN Docket No. 10-127, Framework for Broadband Internet Service
GN Docket 09-191, Preserving the Open Internet
Dear Chairman Wheeler,
When the Founders enshrined our free speech rights in the Constitution, Americans exercised
these rights by using their voices to speak to those within earshot. But an equally if not more important
conduit for free expression was the printed word, a form of speech that could reach a far larger
audience than a single Patriot standing upon a soapbox in the town square.
The printed word was an indispensible component to our ability to self-govern. And the printed
word was carried to all parts of the colonies and, later, the Union, by a common carrier network: the
postal service. The people's ability and freedom to use this common carrier network to communicate
was vital to ending the "tyranny of place" that had restrained the widespread availability of
information to the masses. 1
The public's right to access "the truth" was a critical part of the Enlightenment understanding
of the public sphere. 2 And because "speech concerning public affairs is more than self-expression; it is
the essence of self-government,"3 promoting the public's ability to access this network was an early
American policy priority.4 This notion of promoting and protecting our ability to exercise our free
speech rights appears throughout our nation's history, and is notably enshrined in our communications
laws in a manner that preserves this principle even as communications technologies and markets
evolve.
1 Tom
Wheeler, "Net Effects: The Past, Present, and Future Impact of Our Networks," at 5-7 (Nov . 26, 2013).
2 Culver
Smith, The Press, Politics, and Patronage: The American Government 's Use ofNewspapers. 1789-1875,
Athens: University of Georgia Press (1977).
3
4
Garrison v. Louisiana, 379 U.S . 64, 74-75 (1964).
The Postal network was so vital to our embryonic democracy that Ben Franklin himself served as the first Postmaster
General under the Continental Congress, and the Postal Service Act was one of the first pieces of legislation adopted by the
new federal government. See Richard R. John, Spreading the News, Cambridge: Harvard University Press (1995).
We as a nation believe that every American should have access to adequate communications
facilities at reasonable charges. 5 We believe that every American should have access to facilities that
allow them to transmit the information of their choosing between points of their choosing without
unjust discrimination. 6 We understand that the role of our nation's communications policymakers and
regulators should be to promote competition so that Americans are able to pay the lowest price for the
highest quality telecommunications services.?
These high level concepts should sound familiar. They collectively form the core of the
Communications Act, as amended by the Telecommunications Act of 1996.
Congress enshrined and reaffirmed the common law doctrine of common carriage in the
Communications Act precisely because the ability to exercise our right to speak freely is so important
and indispensible.
The law recognizes that the ability to have our speech carried free from undue discrimination is
essential to our right to speak freely.
This ability is defined by the Communications Act as the capability for members of the public
to transmit the "information of the user's choosing," between "points specified by the user ... without
change in the form or content of the information as sent and received." 8
In other words, our ability to throw off the tyranny of place and exercise our right to speak
freely is a capability promoted and ultimately protected by the law's definition of a
telecommunications service.
5 47 U.S.C. 151 ("For the purpose of regulating interstate and foreign commerce in communication by wire and radio
so as to make available, so far as possible, to all the people ofthe United States, without discrimination on the basis of race,
color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service
with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety
of life and property through the use of wire and radio communication, and for the purpose of securing a more effective
execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional
authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a
commission to be known as the 'Federal Communications Commission,' which shall be constituted as hereinafter provided,
and which shall execute and enforce the provisions of this Act.").
6 See id. 153 ("The term 'telecommunications' means the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the form or content of the information as sent and received ...
The term 'telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the public, regardless of the facilities used."); see also id. 254(b)
("Access to advanced telecommunications and information services should be provided in all regions of the Nation."); id.
160 ("The Commission shall forbear from applying any regulation or any provision of this Act to a telecommunications
carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or
some of its or their geographic markets, if the Commission determines that ... enforcement of such regulation or provision
is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that
telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably
discriminatory." (emphasis added)).
7 P.L. 104-104 ("An Act To promote competition and reduce regulation in order to secure lower prices and higher
quality services for American telecommunications consumers and encourage the rapid deployment of new
telecommunications technologies.").
8
47
u.s.c. 153.
2
But because of prior FCC actions, and not the law itself, the legal protection to communicate
via wire and radio free from undue discrimination only exists for some. These indispensible legal
protections are confined by FCC policy to certain portions of networks that facilitate a specific type of
phone call or dial-up Internet access - all modes of communication that pre-date 1996.
This legal protection to communicate free from undue discrimination no longer exists for
broadband, the mode of telecommunications the nation uses more than any other. Despite the promises
of the 1996 Act, and the reality that Americans born since its enactment prefer to speak using the
language of data, there is no mass-market broadband telecommunications services market in America.
This outcome is plainly nonsensical. How can there be no broadband telecom services market?
Surely, making the telecom services market disappear as bandwidth capabilities increased was the
exact opposite of Congress' intent in amending the Communications Act in 1996.
This is not simply a matter of semantics. Indeed, the Commission's original eagerness to
engage in semantics is precisely why Americans no longer have legal protections for their right to
speak freely to each other and the masses.
Until such time that Congress choses to take away this legal protection for our ability to
communicate free from undue discrimination, it remains absolute.
The obligation to protect our ability to exercise our free speech rights cannot be left to the selfdesignations and promises of private entities. And the Commission's authority to protect that right
derives from the immutable text of the law, not the opinions of bureaucrats about the meanings of
phrases like "reasonable and timely."
Most importantly, our ability to exercise our free speech rights should be protected and
promoted even after the universal deployment of any particular telecommunications medium.
Below we offer an expansion on these ideas through the lens of recent policy history. We
highlight some of the misconceptions concerning communications common carriage. We discuss how
the FCC can achieve Congress' bipartisan vision of an open, competitive, and largely deregulated
telecommunications marketplace. We also suggest a workable system of case-by-case enforcement
through policies designed to create a market structure that acts as a regulator, buttressed by the FCC's
clear oversight authority over broadband telecommunications services.
INTRODUCTION
In the discussions surrounding the issue of the appropriate regulatory classification of mass
market broadband communications, too many have lost the thread of history, and have developed an
inaccurate understanding of the framework for innovation and competition that Congress established
for our nation's two-way communications networks.
Our nation's laws are made in a deliberate fashion, in a manner that incorporates our shared
understanding of history and our hopes for the future. Our federal lawmaking process for the most part
produces laws that are flexible and withstand the test of time. This is the case because of the
deliberative wisdom of the Congressional process, which often bases our laws on bedrock principles
- principles that transport the law through changing times.
3
Our Communications Act is guided by the principles of non-discrimination, universal access,

interconnection, competition, public safety and reasoned deregulation.
These principles, through the framework of the Telecommunications Act of 1996, were
intended to foster the development of a robust, advanced and competitive two-way
telecommunications services market, which would in tum facilitate competition in the information
services and video markets that use telecommunications to reach end users.
Contrary to Washington's prevailing conventional wisdom, the Communications Act is not at
all outdated. Congress in fact overhauled the law in 1996 with an eye towards competition and
technological convergence. In particular, Title II is most certainly not a framework for monopolies
offering telephone service, but a framework for competition in two-way communications networks-a
framework that specifically includes advanced broadband networks.
Furthermore, the notion that the non-discrimination, universal .access, interconnection,
competition, public safety and reasoned deregulation principles that form the heart of Title II are
somehow outdated ignores the plain fact that many of our law's basic principles are hundreds of years
old. From the ideas embodied in the Constitution to the ideas embodied in common law, basic
principles often withstand the test of time. In enacting the 1996 Act, Congress certainly understood
that non-discrimination and interconnection unfettered by market power are the keys to a robust twoway communications infrastructure, regardless of changes in technologies.
If one simply takes the time to understand the history, it becomes clear that the law we have in
place is still quite useful. It's just not being used.
MISCONCEPTIONS ABOUT THE COMMUNICATIONS ACT AND ITS EMBRACE OF COMMON CARRIAGE
A discussion of the appropriate regulatory approach to broadband telecommunications must

start with a common understanding of the law and its history. Unfortunately, many involved in this
discussion, either out of self-interest or out of ignorance, seem to hold a few fundamental
misconceptions of the law, its history and purpose.
For example, this discussion is often plagued with the incorrect conclusion that Title II and
common carriage were designed solely to govern the Ma Bell monopoly. The truth is that the number
of regulations applied to a telecommunications service are indeed proportional to whether or not a
market is a monopoly, but common carriage is not confined to utilities or to monopolies. Indeed, as we
discuss below, there are many communications services offered in non-monopoly markets that are
nonetheless treated as common carrier services under the law-and they are vibrant markets
characterized by high levels of investment and innovation.
There is also an incorrect view of the 1996 Act as a blueprint for total deregulation. This view
ignores the purpose and bounds of forbearance. The entirety of Section 10 indicates that forbearance
can only be granted if the regulations are not needed to ensure the outcomes required by Section 201
and 202. In other words, not only should the rates be reasonable, but the charges and practices after
forbearance must remain ')ust and reasonable and []not unjustly or unreasonably discriminatory."
It is critical that neither the importance of a non-discriminatory outcome nor the Commission's
continued ability to ensure that outcome get lost in this discussion.
The 1996 Act's drafters knew quite well about the Internet, and about the role that policies
governing telecom services played and would continue to play in promoting its advancement.
The Commission first dealt with this very issue in Computer I, and later settled on a firm
demarcation between "basic" and "enhanced" services in Computer II, a distinction that Congress
codified with its adoption of the definitions of "telecommunications services" and "information
services." Further, the Open Network Architecture ("ONA") policies contained in Computer III served
as the basis for Section 251 's unbundling framework. The indisputable reality is that the Commission
developed a wildly successful policy framework from which Congress took its cues ..
There is a widely held belief that classifying a communications service as a
telecommunications service brings substantial regulation. As the Commission knows better than most,
there are dozens of such services that comprise tens of billions of dollars in economic activity. These
are treated as common carriage services under Title II, yet are subject to very little regulation.
Finally, we must rid this discussion of the notion that the legal framework Congress adopted in
1996 is a siloed approach that is in any way concerned with modes of technology. Congress
purposefully wrote the Act to be technology neutral, a fact made clear by its definitions. Title II is
about two-way communications services; Title III deals with spectrum, regardless of the technologies
and services that utilize it. And the 1996 changes to Title VI's treatment of cable services were largely
deregulatory and technology neutral. These are not silos, and they are not obligations based on the
mode oftechnology.
In sum, Congress was clear: the physical networks of the 21st century would provide
telecommunications services. Congress gave the Commission wide latitude in applying Title II to those
networks - networks that clearly provide common carriage in the eyes of the law. Congress'
overarching goal was to ensure a world of big open telecom services that could connect Americans to
the Internet, or to whatever information service. That goal requires telecom services that function to
deliver whatever applications our innovators think of next.
A BRIEF HISTORY OF THE 1996 TELECOM ACT AND ITS CENTRAL PURPOSE: SERVICES
COMPETITION DELIVERED VIA BIG, OPEN AND COMPETITIVE TELECOMMUNICATIONS SERVICES
In the years following the breakup of Ma Bell, there was a marked shift in how many members
of Congress on both sides of the aisle approached the issue of communications regulation.
Deregulation was the theme ofthe day, even if this overarching slogan obscured the complexity of the
policy choices Congress considered. While a few members may have felt that government should play
no role in the telecommunications and cable markets, the overwhelming majority of both Republicans
and Democrats embraced the emerging "competition-then-deregulation" philosophy.
The driving forces behind this shift were the dawn of the broadband telecommunications era in
the mid-1990s and the big promises that cable, telco and other executives were making about the future
of competition. The Regional Bell Operating Companies ("RBOCs") wanted desperately to get out
from under the policies of the court-ordered Modified Final Judgment ("MFJ") in the AT&T breakup,
which kept them from entering the long-distance, video and information-services markets. The
5
competitive telecoms, led by AT&T Corp. and MCI, wanted equal access to the RBOCs' local
networks to offer local calling and data services. And the cable industry wanted multichannel service
rate deregulation and approval to enter the local telecom market.
All these factions told Congress that open telecommunications networks would solve any
market-power problems in the services offered over those networks. If every home and business in
America were offered reasonably priced, fast and open advanced telecommunications services, there
would no longer be any concern about competition in the local toll, long-distance, information-service
and multichannel-video markets. The thinking was that so long as the underlying telecommunications
service was a neutral distribution platform, and new entrants could get into the business of offering
these other services over that platform, there would be no concern about the Bells entering the longdistance markets-and no need to regulate cable rates.
The plan's linchpin was cable's promise to become a telecommunications service provider, not
merely as an alternative for narrowband voice service, but an open and nondiscriminatory broadband
telecommunications service capable of delivering high-quality voice, video and data communications. 9
Again, for most members of Congress, the entire point of the 1996 Act was the creation of
robust and open telecommunications platforms that could deliver competitive voice, video and data
services. The theory Congress operated on in 1996 was that more distribution mediums (be they
copper, coaxial cable, fiber, terrestrial wireless or satellite) produces competition in the markets for the
services delivered over those distribution mediums.
But despite all their promises, the Bells did not enter the video markets for another decade
(having completely ignored the law's Open Video System provisions that would have enabled entry
bypassing the franchise process). The cable industry also broke its promise to become the competing
nondiscriminatory broadband platform. Cable instead pressured the FCC to create a loophole in the
regulatory structure by defining cable's two-way telecommunications platform as an information
service and not a telecommunications service. The Commission did this-even though Congress
clearly stated that "telecommunications services [include} the transport of information or cable
services" 10 when it adopted the 1996 Telecom Act.
9 See Telecommunications Competition and Deregulation Act of 1995, Report of the Committee on Commerce,
Science, and Transportation on S. 652, S. Rpt. 104-23, 104th Congress, First Session, at 13 (1995) ("Senate Committee
Report on S. 652") ("Decker Anstrom testified that NCTA supports telecommunications .legislation because the cable
industry is ready to compete, and legislation must include rate regulation relief for cable. He said that cable will be the
competing wire to the telephone indus tty, and cable's coaxial cable carries 900 times more information than telephone's
twisted copper pair. The problem, he said, is that cable does not have the capital or, in some states, the authority to compete
with the local exchange carriers." (emphasis added)).
IO See Senate Committee Report on S. 652. ("As defined under the 1934 Act [as amended by this bill],
'telecommunications services' includes the transport of information or cable services, but not. the offering of those services.
This means that information or cable services are not included in the definition of universal service; what is included is that
level of telecommunications services that the FCC determines should be provided at an affordable rate to allow all
Americans access to information, cable, and advanced telecommunications services that are an increasing part of daily life
in modem America. Put another way, the Committee intends the definition of universal service to ensure that the conduit,
whether it is a twisted pair wire, coaxial cable, fiber optic cable, wireless, or satellite system, has sufficient capacity and
technological capability to enable consumers to use whatever consumer goods that they have purchased, such as a
telephone, personal computer, video player, or television, to interconnect to services that are available over the
telecommunications network." (emphasis added)).
This history is as important today as it is forgotten. Congress created the correct framework to
promote the blossoming of competition in the voice, video, data and information-services markets. But
the FCC, abetted by the courts, quickly abandoned this framework.
By tossing aside the congressional roadmap, the Commission led us to what we all live with
today: despite the promise of the 1996 Act to foster a competitive advanced telecommunication
services market, Americans now have zero options for broadband telecommunications services. All we
have is an at-best duopoly market for wired high-speed Internet information services, a sharp decline
from the choice in ISPs that Americans enjoyed in the late 1990s.
The lack of an open telecom service platform completely undermined the blueprint for video
competition in particular (not to mention telecom competition), and not surprisingly multichannel
service prices continue to skyrocket despite the decline in traditional cable's market share. And the
fallout isn't over. The consequences of the FCC's classification decisions have up until now been
reserved for broadband telecommunications, but by simply calling their services information services,
the remaining common carriers will be able to bring an end to the entire concept of a public
telecommunications service network. 11
Nothing in the law or legislative history even remotely suggests this was the path Congress
intended for the FCC to follow, nor the outcome it desired.
However, the law itself remains intact.
If the Internet remains an open and nondiscriminatory platform, like it has always been, then
anyone can be an information service provider, broadcaster, publisher or video distributor - not just
the incumbents that own the physical infrastructure.
But thanks to the FCC's misguided classification decisions, there is no guarantee under the law
that the Internet will remain a viable delivery platform for information services, including new video
distributors. When the owners of the physical infrastructure can prevent anyone else from being a
distributor, that's a problem- the exact problem the 1996 Act was designed to solve.
Because of the actions the FCC took in the Computer Inquiries, the codification of that policy
framework in the 1996 Act, and the FCC's half-willingness to promote openness through policy
statements and legally shaky Open Internet rules, we've seen robust innovation and investment in the
edge markets that require an open delivery platform. But this investment and innovation will not
continue if there is any new uncertainty about the openness of the delivery platform.
The answer to this seemingly complex problem is the one that the FCC and then Congress
came to before. We don't need public policy to dictate how the industry should behave; that's the
consumers' job. We need public policy to allow innovation to happen. If we. keep the pipes open, the
content will flow and consumers will win.
11
See Comments of Free Press, In the Matter of AT&T Petition to Launch a Proceeding Concerning the TDM-to-IP
Transition; Petition of the National Telecommunications Cooperative Association for a Rulemaking to Promote and Sustain
the Ongoing TDM-to-IP Evolution, GN Docket No. 12-353 (filed Jan. 28, 2013).
The unfortunate reality is that while we already have these policies and they are the law of the
land, the Commission abandoned them. The agency's shortsighted classification decisions robbed
Americans of a competitive video market and a competitive Internet access market, and robbed
Americans completely of any broadband telecommunications service market.
Incumbents have spent a substantial amount of resources spreading misinformation about and
ultimately demonizing the principle of common carriage, and by extension, Congress' competitive
blueprint from the 1996 Act. This is unfortunate, because Congress' blueprint was right, and members
of both parties supported it, as did the cable and telecom incumbents and theirwould-be competitors.
The 1996 Act was framed as deregulation in exchange for competition. We've already got the
law we need, and the Commission must take the steps needed to get the Act back on track.
THE COMMISSION FORGOT ABOUT FORBEARANCE
Given the history discussed above, the current heated debate over broadband's place in Title I
or Title II seems odd.
Of course two-way broadband transmission networks belong in Title II, because that's where
Congress put them and intended them to stay. But that does not mean Congress intended for a
permanent heavy hand of regulation to apply to these advanced networks. Again, Congress recognized
that as competition develops, reasoned deregulation is an appropriate response.
Section 10 of the Act is the path of reasoned deregulation chosen for our nation's two-way
communications networks. The Commission chose a different path that involved sometimes
metaphysical definitional interpretations of legal classifications. The Commission felt that it could
follow this path to deregulation, while preserving the Commission's ability to uphold the principles of
universal service, non-discrimination, interconnection and competition.
But the legal theory on which the FCC based this assumption has now, through the DC
Circuit's decisions, been proven unworkable. The FCC's classification errors now inhibit the
Commission's activities in areas that Congress clearly placed under the FCC's authority. This
outcome, and its unworkability was predicted by Justice Scalia in his dissent in the Brand X case:
The main source of the Commission's regulatory authority over common carriers is
Title II, but the Commission has rendered that inapplicable in this instance by
concluding that the definition of "telecommunications service" is ambiguous and does
not (in its current view) apply to cable modem service. It contemplates, however,
altering that (unnecessary) outcome, not by changing the law (i.e., its construction of
the Title II definitions), but by reserving the right to change the facts ... [by asserting] its
undefined and sparingly used "ancillary" powers ... Such Mobius-strip reasoning mocks
the principle that the statute constrains the agency in any meaningful way. 12
In other words, the FCC's end-run around Section 10 physically "broke" the law, making it
unworkable. As Justice Scalia put it, in pursuing the principle of reasoned deregulation in an
unreasonable manner (one not remotely contemplated by Congress), "the Commission has attempted to
12
National Cable & Telecommunications Ass 'n v. Brand X Internet Services, 545 U.S. 967 (2005).
establish a whole new regime of non-regulation .... The important fact, however, is that the Commission
has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the
authority given it by Congress."
Some still say that restoring the policy framework Congress adopted (via "reclassification")
would be a return to "century-old rules made for railroads and Ma Bell phone monopolies." That is
simply incorrect. Reclassification would return the framework that Congress adopted for all two-way
communications networks in 1996, a framework that today still applies .to many non-monopoly
markets, including CLEC services, CMRS services, as well as all of the high-capacity data lines in the
very competitive enterprise broadband market.
Reclassification, followed by appropriate Section 10 forbearance, will preserve the 1996 Act's
deregulatory approach. It will put the FCC's rules back in harmony with the law, and it is justified by
current realities of the marketplace that make the prior classification decisions inappropriate today.
CASE-BY-CASE ENFORCEMENT IS VALID ONLY IF BUILT UPON A CLEAR, PERMANENT AND
UNAMBIGUOUS BASIS OF AUTHORITY TO PROTECT DESIRED OUTCOMES THROUGH EXPECTED
NORMS OF INDUSTRY BEHAVIOR
There is a reason the Department of Justice broke up AT&T, and that reason was not simply to
bring an end to a monopoly. Indeed, the Modified Final Judgment left local monopolies in place.
The Department took the action it did in order to create a market stmctu.re that would act as a
regulatory force to improve consumer welfare. The breakup drew a clear market boundary between the
local access network (which was and will always be subjected to the greatest level of natural monopoly
barriers) and every other possible market that the local access network can connect to (be it long
distance, information services, cable services, or customer premises equipment).
The Department's actions weren't the only path to removing Ma Bell's gatekeeper power over
these adjacent markets; the Commission could have tried to regulate incumbents' interactions with
these markets. Indeed, in some cases it did, quite successfully (e.g., Carterfone for CPE, and Computer
II for information services). But the inherent eloquence of the Department's action was to let the
market structure act as regulator first, then the FCC second.
This approach worked. Washington seems to have forgotten the success of this approach, as it
in many cases stood by and watched vertical reintegration dissolve these important market boundaries.
If the Commission wishes to reduce regulation to as minimal a level as possible in a market
that will always be highly concentrated, constrained as that market is by the economics and politics of
the last mile, then it needs to think deeply about restoring a market structure that can act as the firstpass regulator. This begins with a clear delineation of market boundaries and a commitment to keeping
those boundaries intact. In broadband, this means recognizing that local access networks are the gates
through which all other markets must cross.
Whatever the wisdom of a purely case-by-case approach to preserving the Network Compact,
the Commission must recognize that any such approach must be built upon a clear basis of authority.
This approach must be directed at violations of expected norms of behavior. We suggest that the norms
9
encompassed in the heart of Title II-Sections 201 and 202-provide a clear expectation for industry,
and will lessen the likelihood of carriers stepping outside these norms in the first place.
Furthermore, we hope the Commission recognizes that the principles and outcomes for our
communications markets transcend the temporality of a Section 706 finding and even the goal of
universal deployment. Narrowband telecommunications networks reached a state of full deployment
long before Congress amended the Act in 1996, but the law extended Title II's protections and goals to
those and other telecommunications services regardless of the state of deployment or competition.
The Commission's repeated legal entanglements on this issue, the never-ending stream of
metaphysical definitional questions it faces, and the uncertainty all of this creates are merely symptoms
of the illness caused by the original improper classifications and diversion from Congress' blueprint.
The Commission must revisit its prior assumptions for those classifications, as almost all of them were
wildly incorrect. 13 Returning the classifications in harmony with the law will provide certainty to all,
and is the only sensible path for the Commission to follow.
We recognize the appeal of putting fresh chalk on the cue for another triple cushion shot, this
time using the latest reading of Section 706. This is the wrong approach legally and principally, but
under current conditions, it is an easier path politically.
But while politics are important to politicians, they should not even be a small concern to
regulators. Regulators must from time to time demonstrate their congressionally mandated
independence from politics by showing political courage.
CONCLUSION
The history of the Communications Act and its amendments makes clear that nothing about a
service's classification depends on how the provider chooses to think of it. The Act isn't something
designed to let carriers get the privileges of Title II without the obligations, based on self-designation
as an information service provider.
The Act was written as laws unlikely to see constant tinkering are always written-as clear as
the drafters could be about functions, reflecting the input, debate and promises made to the American
people in real time.
These promises-made by industry and by members of Congress, and ultimately enshrined in
the law itself-were not promises to forever offer the American people only narrowband
telecommunications services. No members who voted for the 1996 Act thought they were voting to
ensure that the residential telecom services market would disappear completely (as it very well may in
the context of the IP Transition, if the Commission fails to restore its authority over broadband).
13
For example, the Commission fully believed that even in the absence of any obligation to do so, that incumbent
cable and LECs would continue to offer competing ISPs access to their last mile networks. This clearly did not happen. See,
e.g., Appropriate Framework for Broadband Access to the Internet over Wireline, Report and Order and Notice of
Proposed Rulemaking, 20 FCC Red 14853, '1146 (2005) ("For the reasons discussed herein, we determine that the
competitive pressures and technological changes that have arisen since 1990 have reduced the BOCs' incentive and ability
to discriminate against unaffiliated ISPs in their provision of broadband Internet access service to the point that structural
separation for BOC broadband Internet access service is no longer necessary.").
10
The 1996 Act was in fact about the future. In it, Congress embraced the foundational principles
of common carriage (and what the FCC had helped enable in Computer II) and used these principles to
usher in a competitive advanced telecommunications services market.
We are now 18 years removed from this last overhaul. We are now in that future.
A child born in that February when the 1996 Act became law is about to tum 18. That child and
her cohort barely use voice "calls." She speaks and communicates to her world through data-text and
instant messages, social media, Tumblr, and numerous other websites and applications that many
members of prior generations have likely never heard of.
The two-way communications facilities and underlying technology used to carry these services
may have changed, as Congress fully expected they would. But the societal and policy reasons
for common carriage obligations have not. The total eradication of common carriage is certainly not
the promise Washington made to America, yet that is the reality we now face. Here today, 18 years
later, there is no mass-market broadband telecommunications services market. There is only "high
speed Internet access" in a highly concentrated market. There are long-term consequences to this loss.
If the Commission fails to restore common carriage to our nation's central communications
network, we are ensuring that future generations of Americans will not be able to send the information
of their choosing, between points of their choosing, without undue discrimination. That is the very
definition of a telecommunications service and the protection afforded by Title II. Nowhere in
Communication Act or in the lengthy debates leading up to the 1996 rewrite is it suggested that
Americans should not be able to access telecommunication services. That shouldn't be surprising,
because it's a plainly absurd proposition.
The Commission must understand that the children of today and tomorrow do not and will not
communicate the way prior generations did. They communicate with Os and Is. They communicate
through words and images on a screen.
Is the Commission seriously willing to tell our children that they should not be able to access a
public network that lets them communicate free from undue discrimination?
Is the Commission really prepared to tell our children that if they warit to act like their parents
and grandparents and make a voice call using a landline or wireless phone, they know that call will
connect and won't be of inferior quality, and they won't be price gouged for it; but if they instead
choose to communicate through their natural medium of data, they get no legal protections against
undue discrimination?
The choice for the Commission is binary. It can act to restore American's legal protections to
communicate free from undue discrimination, or it can leave this foundational democratic principle to
the whims of the market.
Sincerely,
Derek Turner, Research Director
Free Press
dtumer@freepress.net
11
cc:
Jonathan Sallet
Philip Verveer
Gigi B. Sohn
Daniel Alvarez
12
From: Bruce Beard [mailto:bbeard@cjonamonmueller.com)

Sent: Tuesday, May 06, 2014 09:04PM
Gigi Sohn
American Cable Association Ex Parte GN 14-28
Dear Ms. Sohn,

Attached is a copy of the Ex Parte Notification we filed today on behalf of the American Cable Association in GN Docket
No. 14-28-Protecting and Promoting the Open Internet. If you have any questions please do not hesitate to give Barbara
or I a call.
"
Thanks
Beard
Bruce E. Beard
Cinnamon Mueller
1714 Deer Track Trail-Suite 215
Louis, MO 63131
314-394-1535 (Office)
314-394-1538 (Fax)
314-541-3305 (Cell)
-b-***w-k**************************************************************************
This electronic mail transmission may contain confidential or privileged information. If you believe that you have received
this message in error, please notify the sender by reply transmission and delete the message without copying or
.
CINNAMON
MUELLER
WA SHINGTO N, DC
ST. LOUIS
CHICAGO
1875 tye Street , NW

Suite 70 0
Washington, D.C. 20 006
1714 Deer Tracks Trail

Suite 215
St. Louis, MO 63131
307 N . Michigan Ave

Suite1020
Chicago. IL 60601
BARBARA S . ESBIN
Ad mitted in the D istrict of C ol umbia

besbin@C innamonMueller. com
phone: 3123723?30
direcr: 20 2 8726811
fax: 20 2 683 6791
May6, 2014
ViaECFS
Marlene Dortch
Secretary
445 12th Street, SW
Re:
American Cable Association Notice of Ex Parte Presentation; Protecting
and Promoting the Open Internet, GN Docket No. 14-28.
Dear Ms. Dortch:

On May 5, 2014, Matthew M. Polka, President and CEO of the American Cable Association
("ACA"), had a teleconference with Gigi Sohn, Special Counsel for External Affairs to Chairman
Wheeler, to discuss recent actions by Viacom to deny access to its websites by broadband Internet
subscribers served by smaller cable broadband providers who are members of ACA. Mr. Polka
explained that Viacom took this punitive step in retaliation for ACA members refusing to sign cable
programming renewal contracts seeking exorbitant fee increases for Viacom networks with low
ratings and minimal viewer interest. Mr. Polka described how, as a result of this action, all broadband
Internet subscribers of two ACA members- Cable ONE and Liberty Cablevision of Puerto Rico- are
being blocked, and that the number of small cable operators targeted by Viacom is likely to grow
since dozens of other ACA members recently chose not to renew a cable programming carriage
agreement with Viacom.
Mr. Polka noted that the Internet has always been a bastion of openness for consumers, who
have been allowed to reach the lawful content of their choice. Viacom's move to block a select group
of broadband Internet customers regardless of whether they subscribed to the operators' video
offerings or not is inconsistent with the fundamental tenet of Internet openness that the Commission's
vacated 2010 Open Internet Order championed. Mr. Polka urged the Commission to seek comment
in its upcoming Notice of Proposed Rulemaking in this docket on whether the Commission's decision
in its 2010 Open Internet Order that the Open Internet rules should not apply to edge provider
activities, such as the provision of content or applications over the Internet, remains appropriate given
market conditions and recent actions taken by content providers.1
If you have any questions. or require further information, please do not hesitate to contact me
directly. Pursuant to section 1.1206 of the Commission's rules, this letter is being filed electronically
with the Commission.
Sincerely,
See In the Matter of Preserving the Open Internet Broadband Industry Practices, Report and Order in GN
Docket No. 09-191 and we Docket 07-52,25 F.C.C.R. 17905, at1J50 (2010).
ww w.C;nnamonM uelfer.com
Title: ACA Ex Parte Letter-GN Docket 14-28

Date: May 6, 2014
Page2
Barbara Esbin
cc (via email): Gigi Sohn
CINNAMON
MUELLER
From:
Sent:
To:
Cc:
Subject:
Seyed Reza Vousefi

Friday, April 04,
Eric Ralph
William Sharkey; M?rk Byk_owsky
Re: Session on Network Neutrality at the AEA 2015 meetings
Dear Eric,
Thanks a lot. That sounds perfect. Will be delighted to have a paper from Mr. Bykowski and Mr. Sharkey. I
can make it. What I need for
is a short one-sentence
understand the FCC constraints, and I hope that
description and abstract, and the names, affiliations, and email addresses for all authors for the paper. That will
be good if I receive these by Saturday April12 (earlier is better) so that I can go ahead and submit all the papers
in a package of a complete session.
Regards,
Reza
On Fri, Apr 4, 2014 at 3:54PM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:

Reza
Mark Bykowski & Bill Sharkey, copied in on this email, have been working on network neutrality in what are currently
two related, but still being drafted papers. They are v interested in presenting their results in Boston. Due to internal FCC
constraints, they cannot commit at this point.
However, 1 hope by putting you alf in touch you will be able to come to some arrangement in the near term.
Eric
Eric Ralph
Chief Economist, WCB
445 12th St, SW
1
0: 202 418 0771
M f?GIA Exemption 6
"
From: Seyed Reza Yousefi Fi'OIA Exemption 6

Sent: Thursday, April 03, 2014 12:46 PM
To: Eric Ralph
Subject: Session on Network Neutrality at the AEA 2015 meetings
Dear Eric,
I am thinking of submitting a session on Network Neutrality at the 2015 AEA meetings in Boston.
Knowing your research, I would like to ask you if you are willing to contribute to the session?! Please
also let me know if you know other colleagues or researchers at other universities who may be willing
to be part of the session.
I am also submitting a draft and asking other professors to join us. If we have a total of three or four
papers, we can go ahead and submit that.
Regards,
Reza
P.S. I believe at this stage we just need to submit abstracts of the papers and the deadline is April15.
On Tue, Jan 11,2011 at 9:29AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:

Here there are.
Eric
Eric K. Ralph
WCB
Today: Blackberry
-----Original Message----From: Seyed Reza Yousefi

2
Sent: Sun 119/20111:19 AM

To: Eric Ralph
Subject: Presentation Files
Dear Eric,
Thanks a lot for today's session on Network Neutrality. I'm doing research with Prof.Whinston at the University
of Texas at Austin on the same topic. The presentations and discussions were so informative and wellorganized.
I'll be thankful if you please send the presentation slides to me (and your discussion, if possible).
Regards,
Reza
445 12th St, SW

0: 202 418 0771

M: 202 427 5990
From: Seyed Reza Yousefi
Sent: Friday, April 04,
To: Eric Ralph
Subject: Re: Session on Networ!< Neutrality at the AEA 2015 meetings
Attached is the paper.

Reza
On Fri, Apr 4, 2014 at 11:51 AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:
If that is the paper I think it is, it is excellent.
Eric
Eric Ralph
445 121h St, SW

1
0: 202 418 0771

E01A Exemption 6
k
FOIA Exemption 6
Sent: Friday, April 04, 2014 11:49 AM

To: Eric Ralph
Subject: Re: Session on Network Neutrality at the AEA 2015 meetings
By the way, Prof. Hennalin just responded with a paper coauthored with Prof. Economides.
Best,
Reza
On Fri, Apr 4, 2014 at 11:16 AM, Seyed Reza Yousefi - r o t e :

Good Morning Eric,
Many thanks, that will be great.
Best,
Reza
On Fri, Apr.4, 2014 at 10:20 AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:

Seyed
This sounds v interesting. .At this point probably not for me, but I may have an excellent alternative for you & will try to
get back to you today.
Eric
2
Eric Ralph
445
12th
St, SW
0: 202 418 0771
Sent: Thursday, April 03,

To: Eric Ralph
Subject: Session on Network Neutrality at the AEA 2015 meetings
Dear Eric,
I am thinking of submitting a session on Network Neutrality at the 2015 AEA meetings in Boston.
Knowing your research, I would like to ask you if you are willing to contribute to the session?! Please
also let me know if you know other colleagues or researchers at other universities who may be willing
to be part of the session.
I am also submitting a draft and asking other professors to join us. If we have a total of three or four
papers, we can go ahead and submit that.
Regards,
Reza
P.S. I believe at this stage we just need to submit abstracts of the papers and the deadline is April15.
On Tue, Jan 11,2011 at 9:29AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:

Here there are.
Eric
3
Eric K. Ralph
WCB
-----Original Message----From: Seyed Reza Y

Sent: Sun 1/9/20111:19 AM
To: Eric Ralph
Subject: Presentation Files
Dear Eric,
Thanks a lot for today's session on Network Neutrality. I'm doing research with Prof.Whinston at the University
of Texas at Austin on the same topic. The presentations and discussions were so informative and wellorganized.
I'll be thankful if you please send the presentation slides to me (and your discussion, if possible).
Regards,
Reza
THE STRATEGIC USE OF DOWNLOAD LIMITS

BY A MONOPOLY PLATFORM*
NICHOLAS ECONOMIDESt AND BENJAMIN E. HERMALIN:j:
ABSTRACT
We consider a heretofore unexplored explanation for why platforms,

such as Internet service providers, might impose download limits on
content consumers: doing so increases the degree to which those
consumers view content providers' products as substitutes. This,
in turn, intensifies competition among providers, generating greater
surplus for consumers. A platform, in turn, can capture this increased surplus by charging consumers higher access fees. Even accounting for congestion externalities, we show that a platform will
tend to set the download limit at a lower level than would be welfaremaximizing; indeed, in some instances, so low that no download limit
is welfare superior to the limit the platform would set. Somewhat
paradoxically, we show that a platform will install more bandwidth
when allowed to impose a download limit than when prevented from
doing so. Other related phenomena are explored.
Keywords: two-sided markets, Internet, download limits (caps), congested platforms, network neutrality, price discrimination.
JEL Classification: 11, D4, 112, 113, C63, D42, D43.
*The authors thank Paul Klemperer, Francine Lafontaine, Chengsi Wang, and seminar
participants at Berkeley-Stanford IOFest, Nuffield College, the University of Mannheim, and
the Paris School of Economics for helpful suggestions. The financial support of the Newhouse
Foundation and of the Thomas and Alison Schneider Distinguished Professorship in Finance
is gratefully acknowledged.
tstern School of Business New York University 44 West Fourth Street New York, NY
10012-1126 email: neconomi@stern.nyu.edu Also NET Institute, www.NETinst.org and
Haas School of Business, University of California, Berkeley.
*University of California Department of Economics 530 Evans Hall #3880 Berkeley,
CA 9472Q-3880 email: hermalin@berkeley.edu.
Date: January 26, 2014 (version 16)
CONTENTS
CONTENTS
1 INTRODUCTION
2 BASELINE MODEL
BENCHMARK:
No
CONGESTION EXTERNALITIEs
ENDOGENOUS BANDWIDTH
13
RESTRICTIONS BY TIME OF DAY
15
7 ISP UTILIZES A Two-PART TARIFF
17
8 HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION
19
9 HETEROGENEOUS CONTENT PROVIDERS
25
CONGESTION
7
9
10 ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA

HIGHER QUALITY
27
11 CONCLUSIONS AND FUTURE WORK
29
REFERENCES
31
INTRODUCTION
INTRODUCTION
Why do platforms, such as residential Internet service providers (ISPs) and mobile telephone companies, impose caps (limits) on how much content their customers can download each month? An immediate answer is that these caps may
be part of a !lecond-degree price discrimination scheme via quantity discounts.
Another is that caps represent the platform's efforts at alleviating the congestion externality consumers impose on each other: reducing the externality raises
consumer welfare, which the platform captures as higher access (hookup) fees.
Although both answers are likely part of the story, in this paper we identify
another effect that could motivate download caps: as customers become more
limited in the amount they can download, the more they will see the digital
products they acquire from different content providers as substitutes. This,
in turn, will increase the competitive pressures on the content providers, who
will respond by lowering their prices. Lower prices mean greater consumer surplus for customers, which the platform can capture via higher access fees. 1 In
essence, unlike a traditional price-discrimination analysis, in which a platform
uses caps to appropriate surplus from end users, we show that a platform has
an incentive to introduce caps to capture surplus from upstream providers.
The basic idea can be readily illustrated. Suppose there is a measure one of
households (customers) and two content providers. A household's utility is
2
u=-H + 2:)v-pn)Xn,
n=l
where Xn indicates whether a household purchases a unit of the nth content

provider's product (x = 1) or not (x = 0), Pn is the nth content provider's
price, and His the hookup fee charged by the platform. Assume thecontent
providers each have a constant marginal cost of 0 and no overhead or fixed costs.
Assume the platform has no costs. If we assume the content providers set prices
first, the platform sets H next, with households making their purchase decisions
last, then it is readily seen that, in equilibrium, p 1 = p 2 = v and H = 0. 2
Now consider an alternative game: for some reason (e.g., a download restriction), each household is limited to one unit in total; that is, a household can
buy from one content provider or the other, but not both. Otherwise the setting
is as just described. The content providers are now effectively in Bertrand competition and the resulting equilibrium exhibits Pl = P2 = 0. Household surplus
gross of the hookup fee is v, which means the platform can charge households
a hookup fee of v.
1 As we discuss briefly in Section 10, the content providers could also respond by improving.
t4e quality of their products, agein reising consumer surplus and, thus, the access fees the
platform can charge. This effect would be of particular relevance when content is provided
free to customers and the content providers generate revenue by selling advertising.
2 An arguably more realistic timing, which is equivalent in terms of the resulting equilibrium, is (i) the platform sets H; (ii) households decide to connect or not; (iii) the content
providers set prices; and (iv) the households decide what content to buy. There are some
nuances, though, to this. alternative timing, which we discuss later.
INTRODUCTION
Comparing the two games, the download restriction harms the content providers, which see their profits go from v each to zero; benefits the platform,
which sees its profit go from 0 to v; and reduces welfare (the sum of consumer
surplus and platform and content providers' profits) from 2v to v. Because, in
either scenario, the households' surplus is fully extracted, households are neither
better nor worse off.
Although rudimentary, the example illustrates the basic tension we explore:
by limiting the aggregate amount trui.t households can buy, the platform effectively induces greater competition among the content providers. This causes
them to lower their prices, which can raise household surplus gross of the hookup
fee. The platform then captures this greater surplus via a higher hookup fee.
The reader's immediate response to this could be, "okay, it's a theoretical
possibility, but is there any
evidence?" There is indeed some. For example, Reed Hastings, Netflix's CEO, arguing against the Canadian ISPs Rogers
and Bell Canada's download caps, said, "It's an effective way to drive the bill
up, that tends to be why caps are used." 3 Further, some reports suggest that
ISPs are interested in imposing caps to enhance revenue because they are blocked
from directly charging content providers (network neutrality).4 Moreover, evidence indicates ISPs might seek to impose caps even when congestion is not a
significant problem. 5
In the simple example above, the only reason for the platform to impose
a download cap is rent extraction. As hinted, an additional rationale for restrictions arises if there is a congestion externality: by limiting total consumption, the platform could enhance welfare by reducing the congestion externality.
Much of the analysis that follows-see, in particular, Sections 3-6-focuses on
that issue. We find, in a static setting (fixed bandwidth), that, while it is possible that welfare is greater if the platform is free to impose a cap of its choosing
than it would be absent any cap, there are many circmnstances in which no cap
is welfare superior to the overly tight cap the platform would choose.
In a dynamic setting (endogenous bandwidth), we find-somewhat paradoxically-that a platform's incentive to build bandwidth is greater when it can
3 "Netflix says Internet download caps only in place to drive up bills,"
March
29, 2011 (accessed August 15, 2013 at URL http://www.thespec.com/news-story/2202174netfiix-says-internet-download-caps-only-in-place-to-drive-up-bills/). According to Van Gorp
and Middleton (2010), "Canada is only one of four countries in the OECD where download
caps were imposed on all the service plans studied by the OECD." That article also notes that
Canada tends to have high prices for residential broadband Internet relative to other OECD
countries, consistent with our model.
4 See, e.g., "If Net Neutrality Is Coming, So Is The End Of All-You-Can-EatInternet

Access," Dan Frommer, Business Insider, December 1, 2010 (accessed online August 15,
2013 at URL http:/fwww.businessinsider.com/if-net-neutrality-is-coming-so-is-the-end-of-allyou-can-eat-internet-access-2010-12).
5 See, e.g., "AT&T puts broadband users on monthly allowance," Ryan Singe!,
Wired, March 15, 2011 (accessed online August 15, 2013 at URL http://www.cnn
.com/2011/TECH/web/03/15/att.broadband.allowance.wired/index.html}. A relevant quote
from this article is "There's [sic) little data to demonstrate whether large ISPs act1,1ally are
experiencing real issues with congestion."
INTRODUCTION
impose a download cap than when it cannot (see Proposition 4 in Section 5).
Intuitively, the platform can extract more rent from content providers via a
download cap the more content they sell in equilibrium. By expanding its
bandwidth, the platform can expand the amount of content sold. Whether
the benefits of greater bandwidth outweigh the static inefficiency caused by
download caps is ambiguous, as we illustrate via an example.
We also explore alternatives to download caps, including allowing unlimited
downloads during off-peak times .(Section 6) and the use of two-part tariffs (a
hookup fee plus a per-byte fee) by the platform (Section 7). We show that the
platform has no incentives to allow unlimited off-peak usage-consistent with
actual practice (Proposition 6). This result further illustrates that it could well
be rent extraction rather than congestion alleviation that motivates platforms'
use of download caps. We find that two-part tariffs could yield greater profit
than a download cap (Proposition 7), but the difference in profit between the
two regimes tends to zero as the number of content providers expands. Hence,
a download cap may be a good substitute for a two-part tariff and might even
be preferred by the platform given the non-trivial administrative costs likely
associated with a two-part tariff.6
We also note, building on the well-known result that the statutory incidence
of an excise tax is irrelevant to its actual incidence, that the analysis in Section 7
would apply if the content providers were the ones charged the per-byte fee.
Hence, the analysis in that section speaks to the issue of whether download caps
are a substitute for allowing the platform to charge the content providers directly
for content delivery to consumers. Under current us policy-a regime broadly
known as network neutrality-residential Internet service providers (ISPs) cannot charge content providers for so-called "last-mile" delivery of their content
to households. The analysis in Section 7 suggests that us ISPs' interests in imposing download caps could be a response to network neutrality, as download
caps serve as a reasonable-and, in the limit, perfect-alternative to directly
charging the content providers. 7
Most of the paper assumes homogeneity across consumers (households) and
content providers. In large part, those assumptions are necessary to have
tractable models with which to explore many of the issues of interest. In Sections 8 and 9, we use simplified versions of our base model to explore issues
that arise with heterogeneity, such as price discrimination across households
and the mix of active content providers. In Section 8, we show that a platform
would never offer a plan with unlimited downloads; that is, a desire to discriminate across households need not lead a platform to offer unlimited downloads
6 It could also be that, because consumers don't have a good sense of how many bytes
various downloads represent, there would be consumer resistance to per-byte charges. That
noted, there are platforms that utilize such tariffs: the UK mobile telephone provider Three
offers data plans under which consumers pay lp per megabyte.
7 It is possible that a platform might wish to do both: charge content providers directly
and impose download caps. Given length considerations, we do not explore that
in
this paper..
INTRODUCTION
to any household. 8 In other words, unlike standard models of discrimination,

in which there is no distortion at the top, we find that all household types will
be sold less than first-best quantity. In Section 9, we show that welfare can
be greater, despite congestion externalities, with no cap than with the cap imposed by the platform even if the content providers are heterogeneous. That
the platform would fail to set the welfare-maximizing cap arises for two reasons
with heterogenous content providers: one, the platform is more concerned about
marginal effects than infra-marginal effects, so distortions arise (a result in the
spirit of Spence, 1975, and others); and, two, the platform is seeking to extract
rents from the content providers, as well as capturing consumer surplus. Hence,
while the first reason makes it ambiguous as to whether the platform would
set too liberal or too stringent a cap vis-a-vis the welfare optimum, the second
reason leads it to set too stringent a cap.
The focus of our analysis is primarily on the effect of caps on the content
providers' pricing. The logic, however, extends, as we illustrate in Section 10,
to situations in which content is provided for free, but in which the content
providers choose quality. By inducing greater competition among the content
providers, a download cap can cause them to provide higher quality products,
thereby increasing households' surplus, which the platform can, in turn, capture
via higher access charges.
This paper is part of the emerging literature on two-sided markets (see e.g.,
Roson, 2005, Rochet and Tirole, 2006, and Rysman, 2009, for surveys). In particular, it is part of the literature on monopoly platform practices, especially
those of Internet service providers (ISPs). 9 In terms of the model employed, we
build most directly on Hermalin and Katz (2007) and Economides and Hermalin
(2012), although neither considers download caps. In two related articles, Dai
and Jordan (2013a,b) consider download caps in the context of price discrimination by an ISP in the residential market. Unlike us, they don't model price
or quality setting by the content providers and, so, do not consider the effect
download caps have on those choices. Beyond the Dai and Jordan articles, the
academic literature on download caps appears limited and focused on legal and
regulatory issues (see, e.g., Van Gorp and Middleton, 2010).
We note that a phenomenon related to our rent-extraction effect of download
caps can arise with advertising. 10 Let the platform be a free-to-public media
outlet (e.g., a radio station or free newspaper). Consumers (listeners, readers) are one side of the market, merchants the other. Suppose the merchants
. are in competition and can attract consumers only if they place an ad on the
platform. By limiting the number of ads it accepts, the platform les8ens the
8 In this regard, we note that the Canadian ISP Rogers, which offers many plans, only offers
plans with download caps. Source: http://www.rogers.com (accessed on September 17, 2013).
9 A partial list of papers on this topic includes Hermalin and Katz (2007), Choi and Kim
(2010), Krii.mer and Wiewiorra (2012), Cheng et al. (2011), Economides and Tii.g (2012),
Economides and Hermalin (2012), and Choi et al. (2013). None of these papers, however,
consider download caps.
10 We
thank Chengsi Wang for this observation.
BASELINE MODEL
competition among the merchants, thereby raising their profits; which, in turn,
it can capture via higher advertising rates. 11 Indeed, by selling advertising to
a single merchant, it creates a monopoly in the relevant product market and
it can capture the monopoly profit by setting the advertising fee equal to that
profit. Although a related phenomenon, there is a critical difference: in this
paper, the platform is seeking to induce the merchants (content providers) to
charge lower prices, not higher, because the platform benefits by increasing, not
decreasing, consumer surplus.
BASELINE MODEL
Households want to engage with some or all of N content (or application)

providers. To reach households, the providers' content must pass through a
"pipe" controlled by a monopoly platform, herein called the ISP for concreteness. The pipe has a capacity (bandwidth) of B; that is, B units (e.g., bytes)
can go from the content providers to the households per unit of time. 12
The assumed sequence of play is that the ISP moves first, announcing its
policies and prices. Next, households decide whether to purchase access. The
content providers then announce their priees. Finally, households decide how
much content to purchase from each content provider.
This game admits multiple equilibria. One is a degenerate equilibrium in
which households expect the content providers to set such exorbitant prices
that they are deterred from purchasing access. Because households don't then
acquire access and there are, thus, no households to which to sell, it is a weak
best response for the content providers to indeed set exorbitant prices. In what
follows, we ignore that equilibrium and focus instead on the equilibrium in which
households acquire access. Households anticipate the prices that will emerge in
the subgame that follows if they acquire access. Provided they can attain nonnegative surplus, they will acquire access. Because the ISP can make money
only if the households acquire access, it will set its access fee so that household
surplus will be non-negative. 13
We assume that content providers are limited to linear pricing. Denote
content provider n's price by Pn We further assume the content providers are
not in direct competition and that each has a marginal cost of 0.
Initially, we limit the ISP to charging households a hookup fee, H. In Section 7, we allow the ISP to also charge a per-unit (e.g., per byte or packet) price.
Consistent with actual practice, we rule out the ISP's setting access charges that
are contingent on the prices announced by the content providers.
11 Dukes and Gal-Or (2003) make a similar point, although in the context of competing
media. platforms.
12 There
13 An
a.re some nuanced issues concerning time, which we address later.
alternative timing, which would yield similar results, is the ISP sets its policies, but not
its access price; the content providers announce their prices; the ISP responds by ami.ouncing
its access price; and, finally, consumers simultaneously decide whether to acquire access and
what content to purchase.
BASELINE MODEL
There is a measure one of households. Each household has quasi-linear

utility:
N
U= L
("n
Jo
n=l 0
f.L(xL(XIB))dx + y,
(1)
where Xn is the amount of content acquired from the nth content provider, y is
the numeraire good, and L(XIB) reflects the congestion loss that arises when X
total content is transmitted. The function f.L( ) gives the marginal contribution
to utility of a unit with "quality'' L(XIB). We assume diminishing marginal
utility; that is, z > z' implies f.L(Z) < f.L(z'). The utility function in (1) is similar
to the ones used by Economides and Hermalin (2012) and Hermalin and Katz
(2007). We assume that content consumption by a household is never so great
as to consume all income; that is, if I is household income, we assume
N
O<y=l- LPnXn
(2)
n=l
always holds.
For low levels of total platform usage, it is possible that congestion is irrelevant, in which case we set L(XIB) = 1. Otherwise, we assume that L(IB) is
an increasing and everywhere differentiable function.
it rationally does not take into account
Because each household is
its consumption decisions on congestion. Although one could imagine that content providers recognize their effects on congestion, it seems more plausible that
they do not and we limit attention to that case. We note that both assumptions
enhance the possibility of our finding that the ISP's imposition of download restrictions is welfare improving. Hence, conclusions in the analysis that follows
that such restrictions are not welfare improving can be viewed as fairly robust.
2.1
HOUSEHOLD DECISION MAKING
Assuming a household has decided to connect to the platform, it then chooses

the amount of content to purchase-the bundle (x1, ... , XN )-so as to maximize
its utility, expression (1). It may be subject to a total download limit:
N
LXn:::; x,
(3)
n=l
where xis the cap on total downloads. Substituting for y according to (2), the
first-order condition for a household's maximization program is
f.L(xnL(XIB))- Pn- >. = 0,
(4)
where >. is the Lagrange multiplier on (3).

Tractability, unfortunately, requires functional-form restrictions: assume the
marginal-utility function is linear; that is,
. f.L(z) =a- z,
(5)
BENCHMARK: No CONGESTION
where a is a positive constant. Setting the slope to -1 is a convenient normalization and imposes no further loss of generality. Given (5), a household
maximizes its utility by consuming
Xn
C-Pn
= L(X!B)
(6)
if there is no download limit (or it doesn't bind); or
Xn
= N
"#nP3- (N- l)Pn
NL(XjB)
(7)
if there is a binding download limit. 14 Notice that the imposition of a download

cap effectively turns the previously independent goods into substitute goods (at
least from the perspective of the content providers' strategies).
BENCHMARK:
No CONGESTION
As a benchmark, we consider the case in which there is no congestion externality;

that is, L(X!B) = 1.
If there is no download limit, then, from (6), the profit-maximizing price for
the content providers is Pn = a:/2. A household's consumer surplus from its
consumption of a given content provider's content is
0:2
(a: -p)dp =
a/2
8.
Consequently,, the ISP will charge a hookup fee of
Na:2
HNOCAP
= -8- .
If there is a binding download limit, then, from (7), each content provider
sets its price to maximize
The corresponding first-order condition is equivalent to
x+ I.':P; -2(N -l)Pn =
0,
Ji.n
14 To be precise, the formulre in (6) and (7) are valid only when non-negative.. For our
purposes, with only one household type, we do not need to make explicit reference to that
fact. If there were multiple household types, the non-negativity condition could require explicit attention. However, extending this version of the model to multiple household types
proves intractable. For the more limited model we use to explore heterogeneous households
in Section 8, this issue also does not arise.
BENCHMARK: NO CONGESTION
which yields the best-response function
- x+ LjnPi
Pn-
2(N -1)
The unique Nash equilibrium is

iC
P1 = = PN = N _
Hence, from (7), each household consumes x/N from each content provider
in equilibrium. Its consumer surplus from its consumption of a given content
provider's content is, consequently,
r/N (a- x)dx- N -1 N = x_aN iC
iC
(3N- 1)x2
2(N- 1)N2
"-..--'
Pn
It follows that the ISP will charge a hookup fee of

HeAP=
_
(3N -l)x2
xa- 2(N -l)N.
(8)
To maximize its profit, the ISP will set the download limit to maximize (8);
hence,
_ a(N -1)N
X=
3N-1.
(9)
Note this solution is relevant only if the iC given by (9) is less than Na/2, which
is the total content downloaded absent a limit (or if the limit does not bind).
Because the x given by (9) is always less than Na/3, it follows the limit binds.
Expressions (8) and (9) yield the equilibrium access (hookup) fee:
Na 2 4(N -1)
4(N -1)
8 - X 3N _ 1 = HNoeAP X 3N _ 1
HeAP = -
We can conclude:
Proposition 1. Given the functional forms assumed, the ISP strictly prefers to
impose a download limit if there are four or more content providers; is indifferent
between a limit and no limit if there are three content providers; and prefers no
limit if there are two or fewer content providers.
Intuition for Proposition 1 can be gained from Figure 1. The download limit
effectively induces competition among the content providers. Hence, the4" prices
fall, which will increase household's consumer surplus ceteris paribus (the dark
rectangle in the figure). At the same time, though, the content purchased from
each content provider falls, which reduces household surplus ceteris paribus (the
light triangle). However, as thefigure suggests-and the algebra confirms-the
. increase due to competition can outweigh the loss due to reduced consumption.
CONGESTION EXTERNALITIES
price
Figure 1: Rationale for download limits: surplus extraction from a single content
provider n. By effectively inducing the content providers to compete,

household surplus increases by the area of the dark rectangle less the
areas of the light triangle.
Not surprisingly, the competition effect is greater the more content providers
there are, which helps explain why the ISP finds a download limit profitable
when there are many content providers, but not when there are only a few.
Because the content acquired from each content provider is reduced and
there are no congestion externalities, the download limit must reduce welfare,
as illustrated in Figure 1.
Assume, now, that there is a negative congestion externality. If there is no

download limit, then, from (6), the profit-maximizing price is again Pn = o:./2.
Now, however, there is a consistency constraint: total demand must be consistent with the effect the resulting congestion has on demand; that is,
Pn
N
X =
Xn
,..-"-...
o:./2)
No:.
2t (o:.L(XjB) = 2L(XjB)
(10)
Because (i) the leftmost side of (10) is zero at X= 0, while the rightmost side is
positive; (ii) the leftmost side increases without bound in X while the rightmost
side is non-increasing; and (iii) L(IB) is continuous, it follows that a unique
solution to (10) exists. Call it X(B).
10
Each content provider sells X(B)/N in content, so household surplus per

content provider is
.
{X(B}/N
Jo
aX(B)
(a- xL(X(B)jB) )dx- ' i ! f
X(B) (aN- X(B)L(X(B)jB))

2N2
aX(B)
=-m-
where the last equality follows from (10). It follows the hookup fee charged by
the ISP is
aX(B)
HNOOAP
= --4- .
Total surplus (welfare) is 3aX(B)f4.

If there is a binding download limit, then, from (7), each content provider
sets its price to maximize
Pn
x "'J#.nPi- (N -1)Pn)
(N +
NL(xiB)
The corresponding first-order condition is equivalent to
xL(xiB)
I:>j - 2(N- l)Pn = 0,
#n
which yields the best-response function
xL(xiB) +
Pn=
2(N-1)
The unique Nash equilibrium is

Pl = =PN =
xL(xiB)
N-1
(11)
Expression (11) might, at first, seem counterintuitive: equilibrium price is

increasing in the distaste for congestion ceteris paribus. This result can, however, be understood by considering (7). The greater distaste, the less sensitive
household demand is to relative prices ceteris paribus; hence, the lower are the
competitive pressures arising from the download limit and, hence, the greater
the price the content providers feel able to charge.

From (7), each household consumes xfN from each content provider in equilibrium. Its consumer surplus from its consumption of a given content provider's
content is, therefore,
r/N (. _ L(-IB))dx _ xL(xiB) x = _ _ (3N- l)L(x!B)x
}
a x x
N- 1 N x N
2(N- l)N 2
0
CoNGESTION EXTERNALITIES
11
Consequently, the ISP will charge a hookup fee of

HeAP=
_
(3N- 1) c-l )-2
xa- 2(N _ 1)NL x B x .
Accounting for the content

WCAP =
(12)
profits, welfare is
_
( (3N -1)
2N
)
_ )_ 2
xa- 2(N _ 1)N - 2(N _ 1)N L(xiB x_ .
(13)
Observe, in terms of if, that HeAP and WeAP have a common "benefit-like" term,
but the former has a "cost-like" term with a higher margin. Hence, by the usual
comparative statics, it must be that the x the ISP would set to maximize its
profit is lower than the cap that would maximize welfare. To summarize:
Proposition 2. Assuming the households' marginal utility functions are given

by (5), a profit-maximizing ISP will set a household download limit (cap) that is
lower than the limit that would maximize welfare.
Although too stringent vis-a-vis the cap that would be welfare maximizing,
is the cap chosen by the ISP welfare superior to no cap at all? In general, the
answer is complicated because of the number of forces at work:
1. because neither content providers nor households take into account the
congestion externality, there will be a tendency to transmit too much
content ceteris paribus;
2. but, because the content providers exercise market power, too little content would get traded if there were no congestion externality; and,
3. as noted, the ISP has incentives to set less than the welfare-maximizing
cap.
The first two points indicate the. theory of the second best is at work absent
any download caps: the reduced trade due to the exercise of market power partially offsets the congestion externality (or, conversely, because of the congestion
externality, the welfare loss from the exercise of market power is reduced).
To study the question, suppose that the loss-from-congestion function is
6
(14)
L(XIB)
where A > 0 and B 2::: 0 are constants. The analysis of Section 3 corresponds to
1 and 8=0.
Given the
form assumed in (14), the solution to (10) is
A=
= (NaBo)m
2A
'
12
which implies that, absent a cap,

Xl
= ... =
XN
aBo )
( 2ANB
m'
HNOCAP
and
(Na9+2B8) u:f:r
22B+3A
WNoeAP
N a9+2 Be) uh
.
= 3 ( 229+3A
{15)
Suppose there is a binding cap. Maximizing the ISP's profit, expression {12),
with respect to x yields
9
_ = ( f,a(N -1)NB
X
A(3N- 1)(0 + 2)
)m
1
Substituting yields:
_ 0 + 1 (2Na9+ 2 B 0 (N -1)) u:f:r

HeAP- 0 + 2
A(3N- 1)(0 + 2)
28
0+ 1 ( 2 +4(N -1) )
= HNOCAP 0 + 2 {3N- 1)(0 + 2)
u:f:r
. . {16)
From {16), it can be seen that HeAP> HNocAP for all N > 3 regardless of 0. If
0 > 0, then that inequality holds for all N;::: 3. If 0;::: .295, then that inequality
holds for all N ;::: 2. Substituting x into the statement for welfare:
WeAP
)m ((3N -1){0+2)(N -1))

(3N- 1){0 + 2)
22B+4(N-1) )m ({3N-1)(0+2)-(N-1))
(3N- 1)(0 + 2)
(3N- 1)(0 + 2)
.
_ (2a0+ 2(N -1)NB 8

A(3N- 1){0 + 2)
-W.
-
NOeAP 3
{l 7 )
There are values for 0 and N such that WeAP > WNocAP and such that WeAP <
WNoeAP (an example of the former are 0 = 7 and N = 6, an
of the
latter would be 0 = 6 and N = 6). In other words, allowing the ISP to impose
a download cap of its choosing can be welfare superior to prohibiting it from
imposing any cap at all; but it can also be welfare inferior-the answer depends
on the parameters.
To investigate the parameters more systematically, observe, from {17), that
the ratio WeAP/WNoeAP is increasing inN. In the limit, as N-+ oo, that ratio is
n. , - -
_L
12
which implies that, absent a cap,
(15)
Suppose there is a binding cap. Maximizing the ISP's profit, expression (12),
with respect to x yields
1
_
X=
( 'J.a(N -1)NB9 ) T-FI

A(3N- 1)(0 + 2) .
Substituting yields:
_ 8 + 1 (2Na9+ 2 B 9 (N -1)) w:h

HeAP- 0 + 2
A(3N -1)(8 + 2)
0+ 1 ( 229+4(N -1) ) $
HNocAP
o+ 2
(3N -1)(o + 2)
. (16)
From (16), it can be seen that HeAP > HNoCAP for all N > 3 regardless of e. If
0 > 0, then that inequality holds for all N;::: 3. If 8 ;::: .295, then that inequality
holds for all N ;::: 2. Substituting x into the statement for welfare:
2
W.
CAP
-W.
-
(2a9+ (N -1)NB
A(3N- 1)(0 + 2)
NOCAP
) T-FI
229+4(N-1)
3 (3N- 1)(0 + 2)
((3N- 1)(0 + 2)- (N- 1))

(3N- 1)(0 + 2)
)$ ((3N-1)(0+2)-(N-1))
(3N -1)(0 + 2)
.
(17)
There are values for 0 and N such that WcAP > WNocAP and such that W CAP <
WNocAP (an example of the former are 0 = 7 and N = 6, an example of the
latter would be 0 = 6 and N = 6). In other words, allowing the ISP to impose
a download cap of its choosing can be welfare superior to prohibiting it from
imposing any cap at all; but it can also be welfare inferior-the answer depends
on the parameters.
To investigate the parameters more systematically, observe, from (17), that
the ratio WcAP/WNocAP is increasing inN. In the limit, as N-+ oo, that ratio is
3--w: (
...L
l+9
(5 + 30)
2+0
If 0 < 6.47 (approximately), then that limit is less than one: welfare is greater
if the ISP is barred from imposing a download cap of its choosing. If 0 > 6.47,
then the limit exceeds one and allowing the ISP to set a cap of its choosing is
welfare superior to no cap. This yields the following:
13
loss (L(XIB))
' - - - - - - - = - - - - - + - r a t i o of
transmitted to
bandwidth
(X/B)
Figure 2: A highly convex disutilityjloss of congestion function.
Proposition 3. Assume bandwidth is fixed. Then, given the functional forms

assumed, prohibiting the ISP from imposing a download restriction of its choosing
is welfare superior to allowing it to impose such a restriction unless the disutil6.47).
ityjloss from congestion function is highly convex (specifically,
Figure 2 plots z 647 , which illustrates how convex it is. It is plausible that
such convexity is consistent with actual preferences: presumably marginal disutility/loss is very small at low levels of congestion: going from no freezes in an
on-demand video to the occasional freeze due to a small increase in congestion
is presumably less costly to people than going from the occasional freeze to constant freezing, as might incur with an increase in congestion at a higher level of
congestion. In a sense, Figure 2 can be seen as approximating a backward-Lshaped curve-a "breaking-point" model in which congestion is acceptable to
certain point, but thereafter almost wholly unacceptable.
Once()> 6.47, the consequences for welfare from allowing the ISP to impose a
download restriction of its choosing depend on the number of content providers.
In particular, the greater is B, the lower is the number of content providers
necessary to make welfare greater with the cap than without.
The analysis to this point has treated the bandwidth, B, as fixed. It is possible, over some time horizons at least, that the ISP can change the bandwidth.
We briefly consider the consequences of endogenizing the bandwidth in this
14
section. 15 Our analysis maintains the previously made functional-form assumptions. We assume (J > 0 and N ;::=: 3, so that HeAP > HNocAP From expression
{16), this entails 8HeAP/8B > 8HNocAP/8B if the latter partial derivative is
positive. That the latter is indeed positive is immediate from expression {15).
In sum, then, the ISP's marginal return to greater bandwidth is greater with a
cap than without. This establishes the following:
Proposition 4. Assume {i) the ISP 's cost of installing bandwidth is everywhere
differentiable; and {ii} that, if barred from imposing a download cap or restriction, the ISP 's choice of bandwidth is an interior solution to the problem of
maximizing profit with respect to bandwidth. Then, given the functional forms
assumed, an ISP able to choose a download restriction will install more bandwidth than one barred from imposing a cap.
Proposition 4 may, at first, seem counter-intuitive: one might have expected
download restrictions to be a substitute for expanding bandwidth, as both address the congestion externality. Although true, there are additional effects.
First, the expanded bandwidth is used. This is the recongestion effect identified
by Economides and Hermalin (2012) and familiar to anyone who has seen physical highway expansion fail to end bumper-to-bumper traffic. But greater use
increases the potential surplus the ISP can capture from inducing competition
among the content providers. Moreover, as discussed in conjunction with expression (11), induced competition is fiercer the lower is L(x!B) ceteris paribus.
Accounting for these other effects, the ISP's investment incentives are greater
when it can impose a download cap than when it cannot.
Whether the welfare benefits of greater bandwidth outweigh the potential
welfare loss from too tight a download cap is, in general, ambiguous. As an
example, suppose that the ISP's cost of installing B bandwidth is kB, k a positive
constant. Continue to suppose that L(XIB) is given by {14). Let A ,;, (J = 1.
Note, because (J < 6.47, static welfare (i.e., for a fixed B) is greater if the ISP
is barred from imposing a download limit. In contrast, in a dynamic setting
(i.e., when B is endogenous), welfare can be greater if the ISP is allowed to set
a limit. Specifically, it can be shown that
No:3
BNoeAP
2(N- 1)No:3
= 128k2 and BeAr= 27{3N- 1)k2
256 N -1
27 3N -1 BNoeAP.
Welfare, including the cost of installing the bandwidth, is

5 No: 3
WNoeAP
= 128 -k- and WeAP =
2(5N-1)(N-1)No:3
27(3N- 1)2k
=
256 (5N-1){N-1)
135
(3N -1)2 WNOCAP.
15 0ther articles that have explored ISPs' incentives to expand bandwidth include Choi and
Kim {2010), Cheng et al. (2011), Economides and Hermalin {2012), and Krii.mer and Wiewiorra
(2012). None of these, however, investigate the relation between bandwidth and download
caps.
15
It follows that if N < 11, then welfare is greater if the ISP is barred from
imposing a download cap, but if N > 11, then welfare is greater if the ISP is
permitted to impose a cap of its choosing (if N = 11, welfare is the same in the
two regimes.)
To the best of our knowledge, ISPs and similar platforms that impose download
caps or limits (e.g., cellular networks with data plans for smartphones) do so on
a monthly basis. This suggests that the unit oftime in our model is a month. On
the other hand, network congestion is generally not a constant throughout the
month: there are peak and off-peak hours. For example, watching on-demand
video might be something done in the evening rather than during the work
day. One could, nonetheless, justify our model by imagining the ho11seholds
make monthly usage decisions and the loss function L reflects some average
congestion disutility that they expect given the usage pattern they've chosen.
Alternatively, we could imagine that the households have to consume some
content at peak hours (e.g., 4ltensive residential Internet usage can occur only
in the evenings after work). That is, off-peak usage is necessarily limited and
minor (e.g., a quick check of email before heading to work in the morning);
hence, peak hours are effectively all that matter.
On the other hand, this discussion calls into question why ISPs and similar platforms impose a monthly limit rather than a limit that applies during
peak hours only (e.g., a plan with unlimited downloads in the wee hours of the
morning, but with limits during evenings or other congested periods). Although
modeling time-of-day consumption complicates an already complex model, we
are able to examine that possibility, to an extent, in this section. We find that
an ISP has higher profits with an "all-the-time" (e.g., monthly) cap than with
a time-of-day cap.
AB a somewhat primitive analysis of such time-of-day issues and their implications, consider a model in which a day has two periods: a high-usage period
(h) and a low-usage period (f). Let the gross utility a household gains from Xn
units of the nth content provider's product be
where Xh is total consumption in the h period; t(x) E {0, 1} reflects the time of
day the xth unit is consumed, with t(x) = 1 corresponding to the h period and
t(x) = 0 corresponding to the .e period; and where 1J > 1 reflects the reduced
benefit from consuming during the less-preferred period (e.g., during the day or
late at night) .16 Although a more general model would allow for the possibility
that congestion is also a problem during the .e period, we assume it is not for
the sake of tractability.
16 0r it could reflect the nuisance of having to remember, for example, to download a video
at a low-usage time, even if it will be watched at a high-usage time.
RESTRlCTIONS BY TIME OF DAY
16
We assume that the content providers cannot engage in time-of-day pricing;

that is, each content provider's price is the same in both the and h periods.
A household chooses t(x) to maximize its utility. Absent any download cap,
it follows from (18) that a household's timing decision satisfies
t( ) _ { 1, if L(XhiB) < 1J
X
0, if L(XhiB)
> 1]
for all x E [0, Xn] Hence, a household is willing to consume during both periods
only if L(XhiB) = 1J.
Only equilibria in which there is h-period consumption are of interest. Let X
again denote total consumption over both periods and let
denote equilibrium
consumption during the h period. We restrict attention to equilibria in which
xe- { X,. 1 if L(XIB) s 1J

h-
L- (7JIB), if L(XIB) > 17 .
That is, either all consumption is during the high-usage period because, even
given the loss from congestion, households find consumption in the low-usage
period too distasteful; or consumption occurs in the high-usage period until
the point that the loss from congestion just equals the distaste for off-peak
consumption, with all consumption beyond that being in the low-usage period.
Absent a download cap, a content provider's demand is proportional to a-pn
regardless of the timing of household purchase decisions. Hence, its price is
a:/2. Recall X(B), which is the solution to (10). If L(X(B)IB) > 7], then the
imposition of a download limit during the h period has no effect on content
providers' prices:
Proposition 5. Under the assumptions of this section, if households consume
positive amounts in the low-usage ()period absent download restrictions, then
the content providers' equilibrium prices remain unaffected if a download restriction is imposed for the high-usage {h) period.
Proof: By supposition, marginal consumption is -period consumption. So, if
is total consumption of the nth provider's content, then Xn
Xn
:z/'
{ "(a:-
lo
1
2:
"(a: -1Jx)dx- PnXn,
where
is h-period consumption of the nth provider's content. Imposition of
peak-time download limits could affect
and
but would not affect the
optimal Xn It follows that marginal demand is
1
-(a:- Pn)
1]
So the nth content provider's pricing problem is unaffected and it will thus conIll
tinue to choose Pn = a:/2.
ISP
UTILIZES A
Two-PART TARIFF
17
Intuitively, the content providers don't care when their content is consumed.
Hence, measures by the ISP that shift the timing of consumption, but don't
affect the total amount consumed, can have no bearing on the content providers'
pricing.
Suppose, absent a cap, there is no consumption during the 1!. period. For
the moment, suppose that households cannot move consumption to the. 1!. period
following a cap. The analysis of the previous sections would then apply. In
particular, denote the prices given by (11) as fin, n = 1, ... , N. If
Pn?:.ex-7]N,
then the equilibrium is unchanged if households were now allowed to buy in the
1!. period. The reason is as follows: those equilibrium prices satisfy Pn < exj2.
Hence, on the margin, a content provider wants to increase its price above fin
if demand is proportional to ex - p. It cannot, therefore, benefit a content
provider to induce consumption in thee period by lowering its price further.
Similar reasoning applies if
x.
Pn < ex -1] N
(19)
Because fin < ex/2, the content provider wants to raise its price--the benefit
from getting a higher price on .:period sales outweighs the loss from fev.rer sales.
Hence, the equilibrium prices when the content providers can sell in the 1!. period
and (19) holds will be greater than the prices given by (11).
Putting all this analysis together, we have
Proposition 6. Under the assumptions of this section, a time-of-day download
limit during the high-usage (h) period never induces a greater competition effect
among the content providers than an all-the-time download limit, but can induce
less of a competition effect.
Because the ISP makes greater profit by inducing more intense competition
among the content providers, Proposition 6 offers a possible explanation for
why ISPs and mobile networks do not relax download restrictions for content
accessed off peak.
ISP
UTILIZES A Two-PART TARIFF
Suppose that rather than impose a download cap, the ISP could utilize a twopart tariff in which a household pays H + r:v if it downloads :v total content.
By now familiar reasoning, each content provider would set a price of (ex r)/2. Total content downloaded would need to satisfy the analog of (10):
(ex-r- t(ex- r))

L(XIB)
= N(ex- r)
2L(XIB) .
(20)
If Lis given by (14), then the total amount downloaded is
= (N(ex- r)B9)
2A
_L.
O+l
(21)
ISP
18
UTILIZES A Two-PART TARIFF
Household surplus from consuming the nth provider's content is, thus,
{X/N
Jo
(or.-xL(XIB))dx-
(or.-r
) X
X(or.-r)
-2-+-r N=
4N '
where the equality follows, in part, from (20). The hookup fee is, therefore,
H= X(or.-r).
4
The ISP's profit is thus
(22)
where the second equality follows from (21). Maximizing with respect tor yields
or.(2+38)
= 3(2+8)
Substituting that back into (22) reveals the ISP's profit to be
8 + 1 ( 2Nor.8+2B 8 ) $8+2 3A(8+2)

Comparing (23) with
HeAP
(23)
given in (16), it follows, because

1
N-1
3 > 3N -1'
(24)
that the ISP's profit is greater when it can employ a two-part tariff than when
it must rely on a download cap. On the other hand, the limit of the righthand
side of (24) as N :-r oo is 1/3; hence, if there are a large number of content
providers, the ISP's loss from utilizing a download cap rather than a two-part
tariff is minor. If there are significant transaction costs in administering a twopart tariff, then the ISP coUld prefer a download cap. To summarize:
Proposition 7. Given the functional forms assumed, the ISP makes greater
profit with a two-part tariff and no download cap than utilizing just a download
cap and a hookup fee. However, as the number of content providers gets large,
this difference shrinks; in the limit, profits are the same under the two regimes.
Hence, if there are significant transaction fees associated with administering a
two-part tariff, then the ISP would prefer a download cap and a hookup fee if the
number of content providers is large enough.
As we observed in the Introduction, the analysis of this section applies

equally well if the content providers were the ones charged r, given that r can
be viewed as an excise tax paid to the ISP and, as is well known, the statutory
incidence of such a tax is irrelevant to its actual incidence (effect). In many
HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION
19
places-the US in particular-residential ISPs cannot currently charge content

providers for delivering content to their residential customers (this is part of
a broad set of policies and customs commonly known a.s network neutrality). 17
The analysis of this section thus suggests that an ISP's motive to impose a download cap will be greater in a network-neutrality regime than in a regime in which
it could directly charge the content providers.
Corollary 1. Given the functional forms assumed, the ISP would earn greater
profit if it could directly charge content providers for delivering their content
(with no download caps) than utilizing a download cap. However, as the number of content providers gets large, the difference in profits between the regimes
shrinks, with profits being the same in the limit.
Next, we explore the relation between download caps and second-degree price
discrimination by the ISP. Price discrimination necessarily entails different
household types, which raises the issue of what constitutes a "type" in this
setting: is it different benefits from all content or only from some
An additional issue is that, when there are different household types and
the ISP discriminates by offering different packages with varying access prices
and download limits, the pricing subgame among the content providers will
often have solutions in mixed-strategies only. The intuition for why is that,
depending on the parameter values, competition among the content providers
when seeking to cater to all types could be fierce. Consequently, a content
provider could be tempted to "drop out" of the competition to sell to all types
and simply seek to sell to a subset of types, but at a greater price. But it
cannot be an equilibrium for all content providers to cater to the subset alone:
by shaving its price, a content provider could pick up a considerable share of the
remaining types' business. Even for our simple model and eschewing congestion
effects, the analysis quickly becomes intractable.
To avoid having to solve directly for any mixed-strategy pricing equilibria of
the content providers' pricing sub game and also to keep the definition of type
relatively straightforward, our analysis of heterogenous households and price
discrimination by the ISP is restricted to a more limited model than heretofore
considered. To wit, assume there are two household types, 0 or 1. Let fJ denote
an arbitrary element of {0, 1}. Let proportion E (0, 1) of households be type 1,
which can be considered the "high" type. A type-1 household's utility is
N
= Y + Vl :2.::: Xn '
n=l
17There is a small literature that analyzes the pros and cons of network neutrality in terms
of economic welfare: see, e.g., Hermalin and Katz (2007), Choi and Kim (2010), Cheng et a!.
(2011), Economides and Hermalin (2012), Economides and Tag (2012), Krii.mer and Wiewiorra
(2012), and Choi et a!. (2013).
20
where Xn = 0 indicates no purchase from the nth content provider and Xn = 1

indicates the purchase of a unit. Observe that a household wants at most one
unit of content from any provider. Observe, too, that we are not considering
the effects of congestion (i.e., L(XIB) 1).
The preferences of type-0 households are slightly different. Let .Ar denote
the set of all content providers. Type-0 households only want content from
content providers in a set N0 , No N (note we are allowing for the possibility
that No = N). Content providers know if they are in No or not. Because the
ordering of content providers is arbitrary, assume content provider n is in No if
n :$ No, No being the size of N0 , and it is not in No if n > N 0 Assume N 0 ;::: 2.
Let a type-0 household's utility be
No
U=y+voLXn,
n=l
where Xn has the same interpretation as before.

For the sake of brevity, we limit attention to situations in which the high-type
households would realize greater benefit from unfettered access than low-type
(type-0) households. In fact, to speed the analysis, we impose a slightly stronger
condition:
(25)
Novo< (N -l)v1.
We assume the content providers cannot distinguish which households are
which type. Hence, given the assumed utility functions, the content providers
are necessarily limited to uniform pricing.
Absent download caps, there is no equilibrium in which the ISP earns a
positive profit. To see this, note that without caps there is no mechanism by
which the ISP can discriminate: it must charge a uniform hookup price, H.
If only one household type, (3, obtains access in equilibrium, then the content
providers will necessarily charge vp: those households will obtain no surplus
and, hence, be willing to purchase access only if H = 0. If both household
types obtain access in equilibrium, 18 then profit maximization by the content
providers entails Pn ;::: min{ vo, v1} if n :$ No and Pn = VI if n > No. It follows
that at least one type is earning no surplus; so, if both are to obtainaccess, it
must again be that H = 0. To summarize:
Lemma 1. Absent download caps, the ISP earns zero profit given the assumptions of this section.
If vi > v0 , then all content providers price at p = VI in the absence of
download caps. In this case, low-type households would be shut out of the
market and only high-type households would acquire access. If v1 :$ v0 and
a content provider in No believes all households have purchased access, then it
prices as follows:
_ { vo, if (1- )vo >VI
Pnmin{vo,vi}, otherwise
18 We could allow mixing by households, but this doesn't change the analysis. Hence, for
the sake of brevity, we do not consider this.
21
A content provider not in No prices at vr. Welfare is maximized if content

providers in No price at min{vo, v1 } and falls short of the maximum otherwise
(as, then, some household types are priced out of the content offered by content
providers in No).
Suppose the ISP imposes a uniform download cap of n < No on all households. The situation is analogous to that considered in the Introduction: the
content providers become, effectively, Bertrand competitors, which leads them
to price at zero, from which it follows that a household that obtains access realizes a surplus of vpn gross of the hookup fee. It further follows that, under
such a uniform cap, the ISP will set
1iV1 ,
H =
if if>v1 > Vo
nvo, if (1- </>)vo
> vr
(26)
nmin{vo,vr}, otherwise
Because n < N, welfare is, necessarily, lower with a cap than without. In
the first and third pricing cases in (26), the set of households who obtain access
is unaffected by the imposition of the cap vis-a-vis what it would be absent the
cap. That is not true in the second: there is a further reduction of welfare in this
case because the high-type households would be priced out of the market. It is
readily seen that, conditional on n < N 0 , the ISP maximizes profit by setting
n = No - 1. To summarize:
Proposition 8. Relative to a situation with no caps, the imposition of a uniform
download cap binding on all household types (i.e., n < N 0 ) reduces welfare and
either leaves the set of households who obtain access unaffected or.reduces it. In
this scenario, the ISP 's profit-maximizing cap is n = No - 1.
What about a uniform cap that would bind only on high-type households
(i.e., No:::; n < N)? Maximum welfare in this scenario is
which is achievable only if all households obtain access. But if all type-0 households obtain access, then a content provider in No can guarantee itself an expected profit of at least (1- <f>)vo by pricing at vo. Consequently, conditional
on n, the ISP's expected profit, 7r18 p, in any equilibrium satisfies
(27)
The righthand side of (27) is increasing in n and is a maximum when n = N -1.
Moreover, the ISP can obtain the righthand side in that case with certainty:
suppose it sets H = (N -1)v1 . Given condition (25), type-0 households would
not obtain access even if they anticipated getting content for free. Consequently,
only type-1 households would possibly choose to obtain access. The content
providers would, thus, find themselves virtual Bertrand competitors and price
at zero. Type-1 households would, thus, just be willing to obtain access. To
conclude:
HETEROGENOUS HO.USEHOLDS AND PRICE DISCRIMINATION
22
Proposition 9. Conditional on the ISP 's setting a uniform cap that would bind
only on high-type households, there is an equilibrium in which the ISP sets a
cap of N - 1 and prices access equal to the resulting consumer surplus hightype households will receive from buying content (i.e., H = (N- l)v 1). Only
high-type households acquire access and the content providers price at zero.
Comparing Propositions 8 and 9 yields the following:
Proposition 10. Suppose the ISP is limited to setting a uniform download cap,
Its equilibrium choice of cap and hookup fee, H, are
n.
(No -1, (No -1)vo),

- H) (n,
-
(No-1,(No-1)min{vo,vl}), if
max{ 1,
V1
<PJ::::i)}
[(1 - rfJ)vo, .!!!!.]

</>"'""-"
& min{vo,vl} >
(N- 1, (N -1)v1), otherwise
(28)
Observe that an ISP limited to a single cap will set a relatively tight cap (No -1)
if it seeks to provide access to all households or only households that place a
large value on the content they want, but who want a limited amount of content
(i.e., vo > v1, but No< N). It will set a looser cap (N -1) if it seeks to provide
access only to high-type househplds (households that want more content ceteris
paribus, each unit of which they may value more).
Finally, we consider the possibility of the ISP's offering two packages, (no, H 0 )
and (n1 ,H1), intended for the type-0 and type-1 households, respectively. It is
convenient for what follows to define N 1 = N, </>1 = , and r/Jo = 1 - . If
fip :;:::: Np, then type-/3 households have no download cap (their package allows
"all you can eat").
Lemma 2. There is no equilibrium in which the ISP gains by offering a package
with all you can eat (i.e., a package with fip:;:::: Np).
Proof: Suppose not. Maximum possible total surplus is

1
S = L.">pmin{Np,fip}vp.
(29)
(3=0
If fip :;:::: Np for a given type {3, then content providers that cater to that type
can guarantee themselves an expected profit of at least r{Jpvp by pricing at vp.
Hence, in aggregate, those content providers must earn expected profits of at
least r/JpNpvp. Necessarily S 2 7rrsp, the second term being the ISP's expected
profit; hence, it follows from (29) that, if Np S fip for both /3, the ISP can
earn no expected profit. As seen (Propositions 8 and 9), the ISP can earn a
positive profit by offering a single package with a binding download cap. Hence,
Np > fip for at least one {3.
23
HETEROGENOUS HOUSEHOLDS AND PRICE DlSCRIMINATION
Suppose N1 > ih, but No S no. It follows from (29) and the previously
given logic that
_1l"Jsp S 1n1v1;
but the ISP can achieve a profit of ifJ1(N- 1)vl by setting a uniform'download
cap of N -1 and pricing access at (N -1)v1; that is, the ISP does weakly better
offering that than two packages, one of which provides type-0 households all
they can eat.
Suppose No> no, but N1 S n1. Similar logic entails
but the ISP can achieve a profit of at least o(No- 1)vo by setting a uniform
download cap of No- 1 and pricing access at (No- 1)vo.
II
Suppose the ISP offers two packages and that the content providers expect each type of household to choose the package intended for it. In light
of Lemma 2, the ensuing pricing game among the content providers will be
Bertrand-like, with equilibrium prices equal to zero. Hence, gross of the hookup
fee, a type-1 household's surplus from purchasing the package intended for a
type-,8 household is nf3V1 and a type-0 household's surplus from purchasing
such a package is min{nf3, No}vo. The ISP's problem is then
max
{Ho,H,no,ih}
(1- )Ho + Hr
(30)
subject to
novo- Ho;::: min{nl,No}vo- Hr,

n1 v1 - H1 ;::: nov1 - Ho ,
novo - Ho ;::: 0, and
(re-O)
(rc-1)
(IR-0)
fi1v1- H1;::: 0.
(IR-1)
Because the ISP could "offer" the package (0, 0), there is no loss of generality in
assuming both household types participate (i.e., the individual rationality, IR,
constraints will hold for both types).
Suppose vo > v1. Given (25), this entails No< N -1. It is readily seen that
the solution to the program (30) is
(n 0 ,Ho) =((No -1), (No -1)vo) and (n1,H1) = ((Nr -1), (N1 -1)v1).
Observe this solution means the ISP achieves the maximum possible profit; in
particular, no surplus is left to the households.
The remaining case is v0
v1 and No S N, with at least one inequality
strict. This corresponds to the textbook second-degree price discrimination
situation (see e.g., Tirole, 1988, Chapter 3). Hence, we know that if the ISP
markets two distinct packages, then, in equilibrium,
24
Ho =novo;
high-type households receive an information rent of R =
no (VI - vo); and, hence,
H1
n0 v 1 - Ho
= n1v1- R = n1v1- no(vl- vo).
If the ISP were to market two packages with n1 >no, its profit would be
H1
+ (1- rp)Ho = (n1 - no)vl +novo.
(31)
Clearly, (31) is increasing in 7ir, from which we can conclude n1 = N- 1. Expression (31) is nondecreasing in no if v 1 :5 vo, which means the ISP maximizes
its profit by setting no =No -1. Expression (31) is decreasing in no if r/Jv1 > vo,
which means the ISP maximizes its profit by setting no = 0 (i.e., it offers a single
package intended for high-type households only). To conclude
Proposition 11. In equilibrium, if v1 > vo, then the ISP will offer a single
package with a download cap of N -1 and hookup fee equal to (N -1)v1. In this
case, only high-type households acquire access. If v1 2: vo 2: v1, then the ISP
will offer two packages: one with a download cap of No - 1 and a hookup fee of
(No- 1)vo intended for low-type households and the other with a download cap
of N- 1 and a hookup fee of (N- No)vl +(No- 1)vo intended for high-type
households. 19 Finally, if v 0 > v 1 , then the ISP will also offer two packages: the
download caps will be as just stated, but the hookup fees will be (No - 1)vo and
(N -1)v 1 for the low-type and high-type packages, respectively. In the latter two
cases, both household types acquire access.
We observe that Proposition 11 is consistent with what we see when residential ISPs utilize download caps (e.g., as in Canada-see footnote 8 supra).
Although they may price discriminate across customers by offering different
packages, all packages have download limits.
An important implication of Proposition 11 is the following. Given the
assumptions of this section, allowing the ISP to impose a download cap is always
welfare reducing (although the relative reduction in welfare is arguably minor
when the number of content providers, N, is large). In particular, the ISP's
pricing scheme never expands access beyond the set of households who would
obtain access were download caps prohibited. Under such a prohibition, the
content providers would price to exclude low-type households if v1 > vo and
serve all households otherwise. Similarly, if v1 > vo, the ISP prices to exclude
low-type households, whereas otherwise it caters to all households.
In a model with more standard demand (e.g., closer to the model of Section 3), such a result might not hold. As is well known, price discrimination
can sometimes expand the number of populations served (see, e.g., Tirole, 1988,
Chapter 3) vis-a-vis the number served under uniform (non-discriminatory) pricing. On the other hand, the forces identified earlier would continue to exist: to
19 If
N =No, then these are the same packa.ge.
HETEROGENEOUS CONTENT PROVIDERS
25
better capture rents from the content providers, the ISP will have a tendency to
set the download caps too low. .In contrast, in this section, although it sets the
cap below the welfare-maximizing levei, that effect is relatively small when N
is large.
A further issue, also omitted from our analysis, is an ISP's ability to discriminate via other means. In particular, many residential ISPs discriminate on
the basis of connection or download speed (i.e., engage in second-degree price
discrimination via quality distortions or versioning). Although an ISP might
wish to use both instruments (i.e., download speed and limits) solely for the
purpose of price discrimination, it is possible that download speed is a sufficient
instrument for discrimination and, hence, the additional imposition of download limits could be driven primarily by incentives to extract rents from content
providers, as modeled in this paper. 20
Next, we briefly consider the situation if the content providers are heterogenous.
This is not easily done with either model used so far; hence, we utilize the
following variant: a household's utility is
=faN v(n, X)xndn + y,
where Xn E {0, 1} indicates whether the household has acquired a unit of the
nth content provider's content. Note, as in the previous section, a household
wants, at most, one unit of any content provider's content and we are assuming
a measure N of content providers. The quantity v(n, X) is the contribution to
total household utility from a unit of the nth content provider's content given
X units of total content are being transported. We again assume congestion is
detrimental: v(n, ) is a decreasing function for all n. We assume a fixed order
of preference for the different content; specifically, assume that n > n' implies
v(n,X) < v(n',X) for all X. Assume v(N,N) :;:: 0 (i.e., even with maximum
congestion, a household gains utility from its least preferred content). At the
same time, we maintain the assumption that limits on congestion can be welfare
enhancing: let the function
U(M)
=:1M v(n,M)dn
be concave in M and assume U'(N) < 0.

Absent any download limit, all content providers will operate and content
provider n sets a price of v(n, N). There is no household surplus, so HNocAP = 0.
Welfare is U(N).
20 Somewhat the flip side: slow download speeds could be similar to download caps insofar
as they cause households to see different content providers as substitutes (e.g., one might be
willing to wait, a long time for content from provider A or B but not the time to get content
from both). This is an issue, however, for future research.
26
Suppose a download restriction of M < N is imposed. The following is an

equilibrium, as is readily verified:
All content providers n ;::: M set their prices to 0.
A content provider n, n < M, sets its price to v(n, M) - v(M, M).
Household surplus is Mv(M,M); hence, HeAP= Mv(M,M).
The ISP will set M to maxirllize HeAP The first-order condition is
(32)
In contrast, welfare maximization entails setting M to solve
(33)
Clearly, expressions (32) and (33) are different, from which it follows that the
download limit that is profit maximizing for the ISP is, generically at least,
not the limit that would be welfare maximizing. Further examination of these
expressions reveals that a famili(J.r tension exists: the monopolist (the ISP) is
concerned with marginal values, while welfare depends on infra-marginal values
(similar in logic to Spence, 1975). In particular, we have the following result.
Proposition 12 .. Under the assumptions of this section, if the marginal disutility
of congestion is not less for content of lower value than higher value (i.e., if
a(8v/8X)jan :::; 0}, then the ISP will set a download cap that is below the
welfare-maximizing cap.
Proof: By the intermediate value theorem (33) equals

v(
for some
n E [0, M).
M M)
'
Mav(n,M)
(34)
ax
By assumption, (34) is not less than

v
(M M)
Mav(M,M)
ax
which in turn strictly exceeds (32). The result follows.
For example, if v(n, X) = K - nX, K ;::: N 2 , then the ISP will impose a cap
of VK/3, while welfare maximization entails a cap of -/2K{3. Indeed, as long
as the ISP wishes to impose a cap (i.e., whenever N > VK/3), welfare with no
cap exceeds welfare under the ISP's preferred cap:
Proposition 13. Under this section's assumptions and assuming v(n, X) =
K - nX, K 2: N 2 , welfare is greater with no download cap than with the cap
the ISP would choose.
ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA HIGHER QUALITY
Proof: Observe U(n) = Kn- n 3 /2 is a concave function inn. At n =

(the upper bound):
The derivative of U(n) evaluated at n

U(-/K73) for all n E (-/K73,-/.KJ.
= yK73 is
K/2
27
.../K
> 0. Hence, U(n) >
Proposition 12 assumed that the disutility from congestion was greater for
less desired content than more desired content. It is, of course, possible the opposite is true (e.g., movies on demand could be both highly valued and marginal
disutility from congestion high relative to material from online periodicals).
Even in such a setting, it is possible that the ISP will wish to set a cap below the welfare-maximizing cap due to the direct effect of inducing competition
among the content providers (i.e., reflecting the 8v(M,M)f8n term in (32)).
To illustrate this, suppose
(35)
v(n, X)= Jx(K- n),

where K 2: N. Observe 8(8vj8X)/8n > 0. It is readily see that
U(M)
M3/2
= KVM- -2-.
The welfare-maximizing cap is, therefore,
= K/3.
Mw =
2Kj3. Solving (32) yields
Proposition 14. Under this section's assumptions and assuming v(n, X) is

given by (35), welfare is greater with no download cap than with the cap the ISP
would choose.
Proof: Observe U(n) is a concave function inn. At n
(3K) = 56-/3
[(3/2
The derivative of U(n) evaluated at n

U(K/3) for all n E (K/3, K].
10
=K
(the upper bound):
J{3/2
< -2- .= U(K).
= K/3 is VfK/4 > 0.
Hence, U(n) >

g
ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA HIGHER QUALITY
Considerable amounts of content available on the Internet is provided free to

households, with the content providers' deriving their revenue from advertising.
In this section, we briefly consider a model of advertising-supported content in
ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA HIGHER QUALITY 28
which the content providers, if induced to compete, will do so via the quality of
their content. 21 Using a simple model, we demonstrate that the ISP continues
to derive a surplus-extraction benefit from download caps.
For convenience, we again employ a model of household demand similar to
that used in the Introduction and Section 8: a household's utility is
N
U=y+
LVnXn,
n=l
Xn = 0 again indicates no acquisition from the nth content provider,

= 1 indicates acquisition of a unit, and Vn is the value (quality) of a unit
where
Xn
of the nth provider's content. For the sake of brevity, we assume away any
congestion externality.
Assume that each content provider chooses its Vn from the binary set {11., v},
where
(N-1)v>NY.2:0.
(36)
Assume that a content provider incurs a fixed cost of c(vn) if it selects quality
For convenience, we assume c(Y.) = 0. Let c = c(v) and assume c > 0.
A content provider's revenue is Axn, where Xn is the total amount of content
delivered and A is the advertising rate. For the sake of brevity, we do not model
the advertising market and, instead, consider A to be fixed. An alternative,
which we do not explore, is that a download cap reduces the supply of "eyeballs,"
so A increases the tighter is the cap. Since the consequence of an increasing A
would only reinforce the effect we analyze here, there is little loss in limiting
attention to a fixed A.
A content provider's profit is, thus, Axn- c(vn) If there are no download
caps, then Xn = 1 (recall there is a measure one of households). It follows that
a profit-maximizing content provider would set Vn = 'Jl.. It further follows that
the ISP sets its hookup fee as HNocAP = N'Jl..
Suppose there is a cap, n < N. Households will, then, consume from the
n content providers that offer the highest quality (most desirable) content. If
there are N+ 2: n content providers all offering the maximum quality, assume
each delivers njN+ amount of content. We limit attention to the case
Vn
N-1
-rA;:::c.
(37)
If, instead of (37), A :::; c, then low-quality would be provided in equilibrium

even with download caps. If, instead
then the quality-choice subgame would have no pure-strategy equilibrium.

21 We thank seminar participants at the Paris School of Economics for encouraging us to
explore this extension.
CONCLUSIONS AND FUTURE WORK
29
Given condition (37), if the ISP imposes a, download cap of ii = N- 1, then

an equilibrium of the quality-choice subgame played by the content providers
is for each to choose high quality (i.e., Vn = v for all n). Household surplus
is (N- l)v and, thus, the hookup fee charged by the ISP is HeAP = (N- l)v.
Given (36), HeAP > HNoeAP: a download cap increases the ISP's profit.
The welfare consequences of a download cap are clearly ambiguous: without
a cap, welfare is (A+ 'Q)N; with a cap, it is (A+ v)(N- 1)- Nc; and either
quantity could be the greater. 22
To summarize:
Proposition 15. Even if content is provided freely by content providers
households, the ISP can have incentives to impose a download cap in order
induce the content providers to provide more desirable content, the benefits
which the ISP can capture via higher hookup fees. The welfare consequences
a cap in this instance are ambiguous.
11
to
to
of
of
This paper has considered how a platform, such as a residential Internet service
provider (ISP) or .mobile telephone company, can profit from the imposition of
download caps on its customers even absent motives of price discrimination and
congestion alleviation. Download caps intensify the competitive pressures on
content providers, which causes them to reduce the prices they charge consumers
(or raise the quality of their content). Because, ceteris paribus, consumers would
realize greater surplus, the platform can raise its access (hookup) charge, thereby
increasing its profit.
Beyond demonstrating that effect, the paper has shown it could be sufficiently strong that the platform has incentives to set the cap so low that, even if
there were welfare benefits to be had from congestion alleviation, welfare would
be higher with no cap than with the overly tight cap the platform would choose.
The implications of this effect for both the platform's capacity (bandwidth) decisions and time-of-day practices were considered. Somewhat paradoxically, it
was shown that allowing the platform to impose a download cap increases its
incentives to expand capacity. It was also shown that the profits generated by a
download cap undermine incentives the platform might have to shift consumption to off-peak times (at least to shift them by relaxing the caps during off-peak
times).
We considered other means by which the platform could extract rents, specifically by charging households or content providers direct per-unit (e.g., per byte)
fees. We showed those means generate greater profit than download caps. Critically, though, the difference in the platform's profits between these other means
and the utilization of download caps shrinks as the number of content providers
increases. When the number of content providers is large, the platform could
be close to indifferent between these other means and download caps; hence,
22 This ignores the advertisers' well-being, but even accounting for their surplus, the welfare
consequences of a cap would remain ambiguous.
30
once transaction costs, consumer attitudes, or prevailing regulations are taken

into account, the platform may choose to use download caps rather than those
other means.
We extended the analysis to allow for heterogeneous content providers. Although tractability limited us to a less-general model than used for most our
analysis, our results suggest that our conclusions continue to hold when the value
consumers place on the content of different providers varies. We also extended
our analysis to allow for heterogeneous consumers (households). Agaii;t, issues
of tractability limited the analysis, but we were able to demonstrate that the
logic of our earlier results was not dependent on our assumption of homogenous
consumers.
Future work remains. First, there is the question of quantifying the size
of the effect of download caps. In this regard, comparing the US with Canadian residential Internet markets could be instructive. The former is currently
characterized by few download caps, while download caps are prevalent in the
latter. If the former market is characterized by higher content prices, but lower
access fees, relative to the latter, 23 then this would provide both support for
our model, as well as a means of quantifying the effect.
Second, our analysis has been limited to a monopoly platform. Although
platform competition in the relevant markets is often limited, it does exist and
the consequences of oligopolistic competition among platforms on the use of
download caps to be explored. Among the issues worth exploring is the extent to
which the platforms are tempted to free ride on each other: because platform A
benefits from the reduction in content prices induced by platform B's download
caps, A might be tempted to offer less stringent caps to gain a competitive
advantage vis-a-vis B. On the other hand, if, as a consequence, A has the lion's
share of the households, the effect of B's caps on content providers' pricing could
be negligible.
Another competitive issue arises when the platform is also a content provider.
For instance, a cable TV company could provide broadband Internet and compete directly with Internet-based purveyors of on-demand movies. A download
limit could harm such rivals, but because it also makes them fiercer competitors,
it could lower the cable TV's profits from its own sale of
movies.
Download caps could also affect aspects of content providers' operations in
addition to their pricing. Beyond, for instance, giving them incentives to employ
better compression algorithms, caps could affect how they see the balance between directly charging consumers and generating revenue through other means,
such as advertising. Hence, although, as discussed in Section 10, download caps
could induce higher quality from content providers, it is also possible that it induces lower quality (e.g., transmitting lower-resolution images or having more
ads). To the extent quality is reduced, consumer surplus would also be reduced
ceteris paribus, which in turn could affect the platform's incentives to impose
23 As noted earlier, Van Gorp and Middleton (2010) report evidence that Canadian access
fees tend to exceed those of other OECD countries. Given the prevailing currency rates at the
time this is written, Netflix charges 6% less in Canada than the US.
REFERENCES
31
caps in the first place. All of these extensions are, however, beyond the scope
of the current paper and remain work for the future.
REFERENCES
Cheng, H. Kenneth, Subhajyoti Bandyopadhyay, and Hong Guo, "The

Debate on Net Neutrality: A Policy Perspective," Information Systems Research, March 2011, 22 (1), 1-27.
Choi, Jay Pil and Byung-Cheol Kim, "Net Neutrality and Investment
Incentives," RAND Journal of Economics, Autumn 2010, 41 (3), 446-471.
_, Doh-Shin Jeon, and Byung-Cheol Kim, "Net Neutrality, Business
Models, and Internet Interconnection," 2013. Working Paper, Georgia Tech.
Dai, Wei and Scott Jordan, "Design and Impact of Data Caps," in "IEEE
Global Communications Conference (Globecom)" Atlanta, GA December
2013.
.
_ and_ , "How do ISP Data Caps Affect Subscribers?," in "Research Conference on Communication, Information and Internet Policy" Arlington, VA
September 2013.
Dukes, Anthony and Esther Gal-Or, "Negotiations and Exclusivity Contracts for Advertising," Marketing Science, May 2003, 22 (2), 222-245.
Economides, Nicholas and Benjamin E. Hermalin, "The Economics of
Network Neutrality," RAND Journal of Economics, Winter 2012, 41 (4), 602629.
_ and Joacim Tag, "Net Neutrality on the Internet: A Two-sided Market
Analysis," Information Economics and Policy, 2012, 24, 91-104.
Hermalin, Benjamin E. and Michael L. Katz, "The Economics of ProductLine Restrictions with an Application to the Network Neutrality Debate,"
Information Economics and Policy, 2007, 19, 215-248.
Kramer, Jan and Lukas Wiewiorra, "Network Neutrality and CongestionSensitive Content Providers: Implications for Service Innovation, Broadband
Investment, and Regulation," Information Systems Research, December 2012,
23 (4), 1303-1321.
Rochet, Jean-Charles and Jean Tirole, "Two-Sided Markets: A Progress
Report," RAND Journal of Economics, Autumn 2006, 37 (3), 645-667.
Roson, Roberto, "Two-Sided Markets: A Tentative Survey," Review of Network Economics, June 2005, 4 (2), 142-160.
Rysman, Marc, "The Economics of Two-Sided Markets," Journal of Economic
Perspectives, 2009, 23, 125-144.
REFERENCES
32
Spence, A. Michael, "Monopoly, Quality, and Regulation," Bell Journal of

Economics, Autumn 1975, 6 (2), 417-429.
Tirole, Jean, The Theory of Industrial Organization, Cambridge, MA: MIT
Press, 1988.
Van Gorp, Annemijn F. and Catherine A. Middleton, "The Impact
of Facilities and Service-Based Competition on Internet Services Provision
in the Canadian Broadband Market," Telematics and Informatics, 2010, 21,
217-230.
From:
FCBA CLE <fcba_cle@fcba.org>

Friday, February 21, 2014 12:37 PM
Claude Aiken
FCBA CLE: The Courts, the First Amendment, and the Future of Video - Monday, 3/10,
6:00- 8:15 p.m.
Sent:
To:
Subject:
F<rBA
Monday, March 10, 6:00- 8:15p.m.
The Courts, the First Amendment, and the Future of Video
The FCBA Video Programming and Distribution and Judicial Practice Committees will co-sponsor a CLE
on Monday, March 10 from 6:00- 8:15p.m. entitled "The Courts, the First Amendment, and the Future of
Video." This program will be held at Wiley Rein LLP, 1776 K Street, NW.
*This CLE was origillally scheduled for February 24, but is
flOW
going to be held March 10.
Changes in the video marketplace have prompted numerous disputes about whether existing rules should remain
in place and whether new (or revised) rules are needed. This CLE will address the role that the courts have
played recently in resolving such disputes and the impact that these judicial decisions may have on the industry,
with a particular focus on constitutional issues.
This program has been approved for 2.0 MCLE credit hours from the VA and CA State Bars.
Click here to register online

Click here to download the registration form
AGENDA
6:00- 6:05 p.m.
Welcome and Introduction
6:05 -7:05p.m.
Recent and Pending Court Decisions
In the span of just a few months, courts have issued a series of decisions - including, most recently, the DC
Circuit's rejection of key portions of the FCC's "Open Internet" order- that could shape the legal framework
1
applicable to the video marketplace, and thus the marketplace itself. And on the horizon is the Supreme Court's
adjudication of a challenge by television broadcasters to Aereo's online subscription video service. Speakers
will describe the legal issues presented by these cases, how the courts are approaching them, and the potential
ramifications of these rulings for the industry.
Speakers:
John Bergmayer, Senior Staff Attorney, Public Knowledge
Rick Chessen, Senior Vice President- Law and Regulatory Policy, National Cable & Telecommunications
Association
_Pantelis Michalopoulos, Partner, Steptoe & Johnson LLP
(Other speakers to be detennined)
Moderator:
Brian Murray, Latham & Watkins LLP and FCBA Video Programming and Distribution Committee Co-Chair
7:05-7:15 p.m.
Break
7:15-8:15 p.m.
First Amendment Issues
.A number of the significant decisions impacting the video marketplace have raised First Amendment issues. In
the second half of the CLE, speakers will discuss the different ways in which the "First Amendment has come up
in these cases, and how big a role the First Amendment is likely to have in similar cases going forward.
Speakers:
Matthew Brill, Partner, Latham & Watkins LLP
Eve Reed, Partner, Wiley Rein LLP
Gerry Waldron, Partner, Covington & Burling LLP
(Other speakers to be detennined)
Moderator:
Joshua Turner, Wiley Rein LLP and FCBA Judicial Practice Committee Co-Chair
Not Responsive
-From:
Sent:
To:
Subject:
Attachments:
,
'
,L
I
QUINN JR., ROBERT W FOIA Exemption 6

Friday, March 21, 2014 6:06 PM
Jonathan Sallet; Philip Verveer; Gigi Sohn; Daniel Alvarez
FW: Net Neutrality Comments
AT&T Net Neutrality Remand Comments.pdf
Should have shot these to you a while ago. Sorry.

We actually focused on how you could rewrite rules around no blocking and non-discrimination. Apparently, we are in
the minority ....
Robert W. Quinn Jr.
AT&T Services, Inc
Senior Vice President- Federal Regulatory & Chief Privacy Officer
1120 20th Street NW
Suite 1000
rwquinn@ att.com
This message and any anuchments toil contain PRIVILEGED AND CONFIDENTIAL ATTORNEY/CLIENT
COMMUNICATION AND/OR WORK PRODUCT PREPARED AT THE REQUEST OF COUNSEL IN FUUTHERANCE
OF OR IN PREPARATION TO LITIGATION intended exclusively for specific recipients. Please DO NOT FORWARD OR
DISTRinUTE to anyone else. If you have received this e-mail in error, please call Glenis McKoy at (202) 457-2080 to report the
error and then delete this message from your system.
Before the
FEDERAL COMMUNICATIONS COMMISSION
In the Matter of
Protecting and Promoting the Open Internet
)
)
)
)
)
)
GN Docket 14-28
COMMENTS OF AT&T SERVICES, INC.
Christopher M. Heimann
Gary L. Phillips
Lori Fink
AT&T SERVICES, INC.
(202) 457-3058 (phone)
Counsel for AT&T Inc.

March 21, 2014
TABLE OF CONTENTS
INTRODUCTION AND EXECUTIVE SUMMARY ..................................................................... I
DISCUSSION .................................................................................................................................. 5
I.
Verizon Allows the Commission to Adopt Targeted Net Neutrality Rules That
Promote Both a Free and Open Internet and Broadband Investment .................................. 5
II.
Any New Nondiscrimination Rule Should Target Only "Commercially

Unreasonable" Actions That Threaten Internet Openness and the Virtuous Cycle of
Innovation and Investment. ................................................................................................ I 0
III.
A.
The Commission Should Adopt a Safe Harbor for Certain Arrangements That
Promote the Purpose of Section 706 ...................................................................... 11
B.
The Commission Should Evaluate Arrangements Outside the Safe Harbor

Through a Case-by-Case, Data-Driven Analysis ................... ............................... 13
An Approach that Targets Only "Commercially Unreasonable" Arrangements Will

Best Achieve the Purpose of Section 706 .......................................................................... 14
A.
B.
A Targeted Approach Focusing on Specific Threats to Internet Openness

Makes Abundant Policy Sense ............................................................................... 15
1.
Allowing Individualized Dealings Would Help Small Edge

Providers .................................................................................................... 16
2.
Enabling ISPs to Negotiate with Edge Providers Would Reduce the Costs
of Broadband for Consumers and Promote Increased Broadband
Adoption .................................................................................................... 22
3.
Flexible Net Neutrality Rules Would Spur ISPs to Invest in Broadband

Infrastructure and New Service Features ................... :............................... 24
4.
Allowing Individualized Dealings Would Promote Efficiency and

Stimulate the Development ofNew Products and Services ....................... 25
A Targeted Rule Would Be in Harmony with Other Rules Sharing a Similar

Purpose and with Regulatory Best Practices ......................................................... 27
CONCLUSION .............................................................................................................................. 32
ii
INTRODUCTION AND EXECUTIVE SUMMARY
The D.C. Circuit's remand in Verizon 1 requires the Commission to fine-tune its net
neutrality rules, at least insofar as they apply to fixed broadband Internet access services. 2 As a
result of Verizon, any nondiscrimination requirement must be narrowly tailored to address only
true threats to Internet openness that emerge from the record developed in this proceeding. But
this required tailoring will in no way undermine the rules' intended purpose. To the contrary,
with the modest changes described below, the Commission's new rules would more fully and
directly promote the goal of a free and open Internet that catalyzes innovation and investment.
In short, the Commission should follow the court's directive and permit ISPs "to make
individualized decisions, in particular cases, whether and on what terms to deal" with edge
providers/ without any common-carrier-like constraints on the outcomes of those dealings. At
the same time, the Commission can prohibit commercially unreasonable conduct that deters
investment in advanced telecommunications capability by stifling the openness of the Internet.
That more targeted and flexible approach would be consistent not 0!11Y with Verizon but
also with the approach that the D.C. Circuit blessed in Cellco Partnership v. FCC, 700 F.3d 534
(D.C. Cir. 2012), in upholding the Commission's Data Roaming Order. 4 The D.C. Circuit
upheld that Order precisely because, at least on its face, it permitted providers to negotiate
customer-specific offerings with no requirement that those offerings be generally available.
See generally Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 20I4) (reviewing Report and
Order, Preserving the Open Internet et al., 25 FCC Red I7905 (20 I 0) ("Open Internet Order")).
2
These comments focus solely on how the Commission should proceed with respect to the
no-blocking and nondiscrimination rules applicable to fixed broadband services. We do not
address here the separate no-blocking rule for mobile broadband.
3
4
Verizon, 740 F.3d at 651.
See Second Report and Order, Reexamination ofRoaming Obligations ofCommercial

Mobile Radio Service Providers and Other Providers ofMobile Data Services, 26 FCC Red
54 II (20 II) ("Data Roaming Order").
Here, too, the Commission must allow ISPs the flexibility to engage in individualized
negotiations with edge providers, subject to the proviso that an ISP not engage in commercially
unreasonable conduct.
Such an approach not only would be lawful under binding precedent; it also would make
abundant policy sense. In fact, allowing individualized negotiations in the mine run of cases
would promote many of the same goals that the net neutrality rules are designed to further. For
example, broad net neutrality rules are often justified as necessary to protect fledgling edge
providers and those who seek to bring innovative new applications to market. But permitting
individualized arrangements with ISPs often would benefit smaller, innovative edge providers by
enabling them to overcome more established players' large capital investments in physical
infrastructure. And empowering edge providers and ISPs to negotiate whether and on what
terms to deal would promote the public interest in other ways as well. Empirical studies in a
variety of contexts have shown that vertical arrangements are much more likely to promote
competition than hinder it. And in the Internet space, allowing ISPs to recover some of their
network costs directly from edge providers would benefit consumers by decreasing the cost of
broadband service. And this, in turn, would increase the demand for broadband Internet access,
spurring ISPs to deploy more and faster broadband infrastructure. Permitting individualized
deals also would promote the development of cutting-edge network features (and with them,
innovative applications that use those features) because ISPs could recover.the costs of such
network upgrades directly from the edge providers that make use of them. Finally, such rules
also would enable ISPs and edge providers to efficiently determine which innovative new
applications require quality-of-service enhancements that only ISPs can deliver.
Importantly, allowing ISPs to differentiate among edge providers in commercially

reasonable ways would not prevent the Commission from addressing conduct that truly threatens
an open Internet, should such conduct occur. To the contrary, Verizon requires only that any
new rules be narrowly tailored and focused on situations that present real threats to Internet
openness. To ensure that its new rules are consistent with this directive, the Commission should
ground them in facts, not speculation, and common sense reality, not rhetoric.
It is also important that any new rules balance the need for flexibility in addressing
particular actions with the benefits of regulatory certainty. As the Commission has long
recognized, regulatory uncertainty is the enemy of investment and thus is antithetical to the
broadband deployment objectives of section 706. 5 Accordingly, the more clarity and guidance
the Commission provides in advance, the better. To that end, the Commission should establish a
safe harbor for non-exclusive arrangements entered into with unaffiliated providers of Internet
content, services, or applications. ISPs have neither the incentive nor ability to harm Internet
openness in derogation of section 706 goals in these circumstances, and subjecting them to caseby-case regulatory scrutiny would unnecessarily impede efficient and pro-consumer arms-length
commercial dealings. For arrangements that do not fall within that safe harbor, the Commission
should employ a case-by-case analysis that examines the competitive effects, if any, ofthe
arrangement, as well as other factors similar to those contained in the Data Roaming Order. In
conducting this case-by-case analysis, the Commission should evaluate each arrangement or
practice independently through a fact-specific and data-driven approach that appropriately
weighs both the benefits and the costs of interfering with a particular negotiated arrangement.
47
u.s.c. 1302.
3
That approach would be consistent with the Commission's rules in other areas, such as
program access, where it assesses vertical arrangements on their unique facts, only condemning
those arrangements that are shown to be harmful to the public interest. It would also be in line
with modem antitrust doctrine and with basic regulatory best practices, which recognize that
regulations always introduce competitive distortions and unintended consequences, and which
therefore limit government intervention to situations in which private arrangements inflict
identifiable harm.
The balance of these comments is organized as follows. Part I discusses the D.C.
Circuit's opinion in Verizon and the options that remain open to the Commission following that
decision. In particular, we outline the legal basis for a targeted approach to regulation of fixed
broadband Internet access services that proscribes only "commercially unreasonable"
discrimination and that allows ample room for individualized dealing. Part II lays out AT&T's
specific proposal, including the safe harbor that would apply to certain arrangements and the
factors that the Commission should consider when evaluating whether arrangements falling
outside the safe harbor are "commercially unreasonable." And Part Ill discusses why the
Commission should adopt AT&T's proposal. In Part liLA, we explain why allowing
individualized dealings between ISPs and edge providers makes abundant policy sense. And in
Part III.B, we explain why flexible and targeted net neutrality rules comport with principles
governing related areas of the law and with regulatory best practices more generally. 6
In these comments, AT&T proposes changes to only the rules applicable to fixed
broadband providers. Because the D.C. Circuit found that the Open Internet Order did not
sufficiently disaggregate the antidiscrimination rule applied to fixed broadband providers from
the no-blocking rules applied to fixed and mobile providers, the court held that the no-blocking
rules, like the antidiscrimination rule, did not leave sufficient room for individualized bargaining
and therefore violated the statutory prohibition on common-carrier treatment. Verizon, 740 F.3d
at 657-58. Arguably, the no-blocking rule for mobile broadband did not impose common-carrier
4
DISCUSSION
I.
VERIZON ALLOWS THE COMMISSION TO ADOPT TARGETED NET NEUTRALITY RULES
THAT PROMOTE BOTH A FREE AND OPEN INTERNET AND BROADBAND INVESTMENT
Although Verizon struck down the Commission's net neutrality rules, it also provided
clear instructions on how to modify those rules so that they do not unlawfully impose commoncarrier requirements on information services. By following the court's guidance, the
Commission can ensure a free and open Internet that promotes broadband investment without
running afoul of section 153(51) ofthe Communications Act.
In its Open Internet Order, the Commission imposed various requirements on broadband
Internet access providers designed to protect and preserve the open Internet. First, the Order
required both fixed and mobile broadband providers to disclose certain network management
practices, performance characteristics, and terms and conditions of their broadband services. 7
Second, the Order prohibited fixed broadband providers from blocking lawful content,
applications, services, or non-harmful devices, and it barred mobile broadband providers from
blocking lawful websites or applications that compete with the provider's own voice or video
telephony services. 8 Finally, the rules banned fixed broadband providers from "unreasonabl[y]
discriminating in transmitting lawful network traffic." 9 The Commission made clear that both
the nondiscrimination and no-blocking obligations contained exceptions for "reasonable network
regulation insofar as it was limited in scope, prohibiting blocking only of access to lawful
websites and applications that competed with an ISP's video and voice telephony services, and
was unaccompanied by a separate nondiscrimination requirement. See Open Internet Order, 25
FCC Red at 17959-61
99-103. The mobile no-blocking rule thus focused on situations where
an ISP theoretically might have an incentive to act in a commercially unrea"sanable fashion,
while otherwise leaving room for individual negotiations. See Part II, infra.
7
Open Internet Order, 25 FCC Red at 17906
I d.
I d.
I.
management," which the Commission defined to allow broadband providers "flexibility to

experiment, innovate, and reasonably manage their networks." 10 The Commission also limited
the rules' application to the transmission of traffic as part of a mass-market broadband Internet
access service, 11 made clear that such services did not include "Internet backbone services," 12
and expressly disavowed any intent to regulate "paid peering
In Verizon, the D.C. Circuit upheld the Commission's authority under section 706 to
regulate broadband Internet service providers in ways that "encourage the deployment of
broadband telecommunications capability." Verizon, 740 F.3d at 634 (citing 47 U.S.C. 1302(a),
(b)). At the same time, the court reaffinned that the Commission may not use any of its powers
"in a manner that contravenes any specific prohibition contained in the Communications Act," id.
at 649, including the command that "[a] telecommunications carrier shall be treated as a common
carrier under this [Act] only to the extent that it is engaged in providing telecommunications
services." 47 U.S.C. 153(51). And because the Commission has rightly concluded that
broadband ISPs provide "information services" and not "telecommunications services," 14 it may
not, as the court held, regulate such providers as common carriers, including under section 706.
10
!d. at 17955-56
II
ld. at 17932 44.
12
!d. at 17933
47.
13
!d. at 17944
67 n.209.
92.
14
See, e.g., Declaratory Ruling and Notice of Proposed Rulemaking, Inquiry Concerning
High-Speed Access to the Internet Over Cable and Other Facilities et al., 17 FCC Red 4798
(2002) ("Cable Modem Order"), aff'd, National Cable & Telecommunications Ass 'n v. Brand X
Internet Servs., 545 U.S. 967 (2005); see also Comments of AT&T, Frameworkfor Broadband
Internet Service, GN Docket 10-127 (filed July 15, 2010) ("AT&T Title II Reclassification
Comments"). In discussing this classification, the court incorrectly stated that the Commission
had, at one time, classified Internet access as a telecommunications service. Verizon, 740 F.3d at
630-31. While the Commission once classified stand-alone DSL transport service as a
telecommunications service, it has never broadly classified Internet access itself as such. See
Cable Modem Order, 17 FCC Red at 4825 43.
Verizon, 740 F.3d at 650. The court went on to set aside the Open Internet Order's no-blocking
and nondiscrimination rules as prohibited "common carrier" regulations. See id. at 655-59.
The main question following Verizon is therefore what constitutes an impermissible
common-carrier regulation. Synthetizing prior decisions, the D.C. Circuit explained in Verizon
and in Cellco that common-carrier obligations include any obligation that "force[s] [a] carrier to
offer service indiscriminately and on general terms." Cellco, 700 F.3d at 547; see also, e.g.,
NARUC v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) ("[T]o be a common carrier one must hold
oneself out indiscriminately to the clientele one is suited to serve[.]"). Thus, the essence of
common-carrier status is a limit on a provider's ability to treat customers on an individualized
basis. See, e.g., NARUC, 525 F.2d at 641 ("[A] carrier will not be a common carrier where [it]
... make[s] individualized decisions, in particular cases, whether and on what terms to deal.").
In determining whether a given regulation amounts to compelling a provider to hold its
services or facilities out indiscriminately for public use-'and thus is an impermissible commoncarrier obligation-the Supreme Court's decision in Midwest Video II is instructive. That case
involved a generally applicable requirement that cable television systems oyer a certain size
provide a certain number of channels for use by the public at either no fee or a regulated fee. See
FCC v. Midwest Video Corp., 440 U.S. 689, 693-94 (1979) ("Midwest Video IF'). The rules also
stripped cable operators of any discretion regarding who could use the channels, what could be
transmitted over them, and on what terms. !d. at 693. The Court found that, in adopting such
rules, the Commission had "relegated cable systems, pro tanto, to common-carrier status." /d. at
700-01. As the Court explained, "cable systems are required to hold out dedicated channels on a
first-come, nondiscriminatory basis"; cable operators "are prohibited from determining or
influencing the content of access programming"; and the rules "delimit[ed]. what operators may
charge for access and use of equipment." Id. at 701-02. The rules thus "plainly impose
common-carrier obligations on cable operators." Id. at 701.
At the same time, Midwest Video II clarified that not all forms of"openness" obligations
would amount to prohibited common-carrier regulation, distinguishing the Supreme Court's
prior decision in United States v. Southwestern Cable Co., 392 U.S. 157 (1968). Southwestern
Cable involved, among other things, a Commission requirement that CATV systems transmit to
their subscribers the signals of any station into whose service area the CATV system had brought
a competing broadcast signal. Id. at 166. That targeted requirement was among a number of
rules the Commission had adopted out of fear that the carrying of distant broadcast signals by
CATV operators would imperil local broadcasters. Id. at 175. As the Supreme Court explained
in Midwest Video II, the carriage requirement at issue in Southwestern Cable, unlike that in
Midwest Video 11 itself, "did not amount to a duty to hold out facilities indifferently," but was
rather 'limited to remedying a specific perceived evil"-namely, the perceived threat to local
broadcasters-and therefore did not run afoul of the prohibition on treating cable system
providers as common carriers. Midwest Video II, 440 U.S. at 707 n.16; see also Verizon, 740
F.3d at 656 ("[T]he Southwestern Cable regulation imposed no obligation on cable operators to
hold their facilities open to the public generally, but only to certain specific broadcasters if and
when the cable operators acted in ways that might harm those broadcasters." (emphasis added)).
The D.C. Circuit's recent decision in Cellco similarly illuminates the limits on the
Commission's authority under the Communications Act. Cellco involved the Commission's
Data Roaming Order, which generally "require[d) facilities-based providers of commercial
mobile data services to offer data roaming arrangements to other such providers on commercially
reasonable terms and conditions," 15 a requirement the Commission believed would "help[]
provide consumers with greater competitive choices." Data Roaming Order, 26 FCC Red at
5422
20. At the same time, however, the Commission expressly permitted providers to
negotiate the terms of their roaming agreements on an "individualized basis" and to offer
arrangements "on commercially reasonable terms and conditions tailored to individualized
circumstances without having to hold themselves out to serve all comers indiscriminately on the
same or standardized terms." !d. at 5433
45. The Commission further specified that conduct
that "unreasonably restrains trade" would not be commercially reasonable, id., and outlined a
number of factors to aid future determinations regarding reasonability, including "the level of
competitive harm" and "benefits to consumers," id. at 5445
68. In upholding the rules, the D.C.
Circuit emphasized that the data roaming regulations "le[ft] substantial room for individualized
bargaining and discrimination in terms" and endowed providers with "considerable flexibility ...
to respond to the competitive forces at play in the mobile-data market," subject only to a loose
commercial reasonability backstop. Cellco, 700 F.3d at 548. Importantly, the court also found
that, although the rules were lawful on their face, the Commission might apply them in an
unlawful manner if it policed providers' discretion too closely and in a manner that amounted to
imposing a de facto "common carriage obligation." !d. at 549.
Emerging from these cases are a number of principles that must guide any new rules the
Commission crafts in responding to the D.C. Circuit's remand. Most importantly, any such rules
must allow broad room for individualized negotiations among ISPs and edge providers, with no
presumption that ISPs must treat like customers alike absent a clear justification for treating them
differently. Closely policing individual negotiations as a general matter would effectively
15
See Data Roaming Order, 26 FCC Red at 5411

9
1.
amount to applying Title II nondiscrimination obligations to ISPs. Instead,. individualized

negotiations that result in different terms among even similarly situated parties should be treated
as presumptively lawful unless there is a factual showing that the action poses a threat to Internet
openness and the virtuous cycle of innovation and investment that such openness promotes.
More specifically, the Commission should follow the courts' lead and adopt an
appropriately narrow rule that is grounded on fact-based, real world record evidence, and that
proscribes only "commercially unreasonable" practices. The Commission should approach
whether an action is commercially reasonable by first focusing on those situations that pose a
particular threat to Internet openness and the objectives of section 706, and then applying the
factor-based analysis described below (see Part II, infra). Such an approach, by concentrating on
specific threats to Internet openness while preserving market choices in the majority of cases,
would, as in Southwest Cable, represent a targeted response to a specific concern. And it would,
as in Cellco, allow individual contracting parties flexibility in the mine run of cases to reach
tailored agreements without fearing Commission enforcement actions. Finally, as explained in
Part III below, this approach also would further the Commission's twin goals of promoting a free
and open Internet and stimulating investment in broadband infrastructure. Indeed, for the
reasons detailed below, it would advance those goals far better than the broader rules vacated in
Verizon.
II.
ANY NEW NONDISCRIMINATION RULE SHOULD TARGET ONLY "COMMERCIALLY

UNREASONABLE" ACTIONS THAT THREATEN INTERNET OPENNESS AND THE VIRTUOUS
CYCLE OF INNOVATION AND INVESTMENT
To comply with Verizon, the Commission need not substantially revise the text of the
nondiscrimination rule that the court struck down. While the old rule prohibited fixed broadband
providers from "unreasonably discriminat[ing] in transmitting lawful network traffic over a
10
consumer's broadband Internet access service," 16 the new rules could simply ban "commercially
unreasonable discrimination in the transmission of lawful network traffic over a consumer's
broadband Internet access service." 17 As it did in the Data Roaming Order, however, the
Commission should explain that the commercial reasonability requirement does not amount to a
Title-11-like obligation to treat like providers alike except where there is a special justification for
treating them differently. 18 Instead, the commercial reasonability standard should allow broad
room for individualized negotiations among providers leading to different terms in different
cases, subject only to a prohibition on actions that in fact harm Internet openness and by
extension, the virtuous cycle of innovation and investment.
A.
The Commission Should Adopt a Safe Harbor for Certain Arrangements

That Promote the Purpose of Section 706
In deciding whether an action is commercially unreasonable, the Commission should

adopt a safe harbor for practices that, as a category, do not threaten the open Internet.
Specifically, the Commission should clarify that any new prohibition on discrimination does not
apply to non-exclusive arrangements entered into with unaffiliated providers oflnternet content,
services, or applications. This safe harbor would not only be consistent with cases delineating
the breadth of common carrier regulation, but with section 706 itself insofar as it would offer
greater predictability in the application of the Commission's rules.
16
47 C.F.R. 8.7.
17
As the old rules were, any new such prohibition must be subject to a reasonable network
management exception. See Open Internet Order, 25 FCC Red at 17951-56 ,-r,-r 80-92 (discussing
exception).
18
As the Commission acknowledged in the Data Roaming Order, under the commercially
reasonable standard, the "actual provisioning of [services] under those arrangements and any
practices in connection with such arrangements will be subject to individually negotiated
contract[] provisions, unlike a common carrier obligation under Sections 20 I and 202 of the Act."
26 FCC Red at 5445-46 ,-r 68.
II
First, the safe harbor outlined above finds strong support in the law, and in particular the
Supreme Court's directives in Southwestern Cable and Midwest Video II. In those cases, the
Court made clear that the Commission may adopt targeted responses to parJ:icular threats without
being deemed to have imposed common carrier regulation, but that broad restrictions on
individualized dealings cross the line. See Part I, supra. The safe harbor test proposed here is
consistent with that jurisprudence. In situations in which an ISP is neither favoring its own
content, applications, or services nor providing a service on an exclusive basis, there is no risk of
commercially unreasonable discrimination that would constitute a threat to Internet openness in
derogation of the goals of section 706. To the contrary, ISPs have neither the incentive nor the
ability to engage in such conduct when they are offering services on a non-exclusive basis to
third parties with which they are not affiliated.
Such a safe harbor also would advance the core goal of section 706-namely, investment
in broadband infrastructure 19-by reducing the regulatory uncertainty surrounding any new net
neutrality rules. The Commission recognized the investment-deterring effects of such
uncertainty in the Open Internet Order itself. 20 Indeed, an inability to predict how openne$S
obligations will apply to all types of negotiated arrangements would have a demonstrable
chilling effect on carriers' investment incentives. When a provider is choosing whether to
deploy new facilities or services, it needs to be able to make an accurate judgment regarding
19
47 U.S.C. 1302(b) (stating that the Commission "shall take immediate action to
accelerate deployment of[advanced telecommunications] capability by removing barriers to
infrastructure investment and by promoting competition in the telecommunications market"); id.
1302(a) (directing the Commission to "encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all Americans ... ").
20
Open Internet Order, 25 FCC Red at I 7929-30 42 & n.I37; see also Cable Modem
Order, 17 FCC Red at 4840 73 (noting "the need to minimize both regulation ofbroadband
services and regulatory uncertainty in order to promote investment and innovation in a
competitive market").
12
what the regulations allow, so that it can weigh the expected costs and benefits of its investment.
Where a regulation is potentially overbroad and enforcement risks are difficult to calculate, a
prudent provider will, on the margins, be less likely to invest, undermining the very goal section
706 seeks to advance. 21 A safe harbor that permits a provider to enter into at least a limited class
of pro-consumer arrangements without facing regulatory scrutiny would therefore inject needed
clarity into the provider's investment decisions and make that provider on balance more likely to
invest.
B.
The Commission Should Evaluate Arrangements Outside the Safe Harbor

Through a Case-by-Case, Data-Driven Analysis
Where the safe harbor does not apply, the Commission should specifY the factors that it
will apply in determining whether an arrangement is "commercially unreasonable." If, and only
if, based on the record developed in the forthcoming rulemaking proceeding, those factors reveal
a demonstrable harm to the free and open Internet should the Commission intervene in dealings
between ISPs and edge providers. The most important such factor should be whether the action
would have anticompetitive effects-i.e., whether it poses a threat to Internet openness by
foreclosing competition among providers oflawful content, applications and services over the
Internet. At the same time, the Commission should clarifY that it is not concerned with
arrangements-such as those described in Part III below-that fall outside of the safe harbor but
benefit consumers, promote openness, and incentivize broadband investment.
The Commission also could recognize that other factors may be relevant in individual
cases. Such factors may include:
how broadly available a given offering is;
21
See AT&T Title II Reclassification Comments at 2-5 (discussing investment deterring

effects of regulatory uncertainty).
13
whether the broadband ISP has responded to requests for negotiations regarding
similar or related transmission offerings from other customers of its service;
whether the ISP has engaged in a pattern of stonewalling; and
whether the terms on which the transmission is offered are so unreasonable as to be

tantamount to a refusal to deal.
In addition to listing the factors that will generally inform its analysis as to whether a
transmission arrangement is commercially reasonable, the Commission should make clear that its
determinations in all cases will be fact-based and data-driven. Even when one or inore factors
suggests cause for concern, the Commission should evaluate dealings between ISPs and edge
providers using a case-by-case approach that appropriately weighs both the benefits and the costs
of interfering with a specific arrangement.
Finally, the Commission must be careful to apply any factors it announces in a manner
that is consistent with Verizon and the cases that delineate the boundaries of common carriage.
As the D.C. Circuit found in Cellco, applying factors in such a way that amounts to a backdoor
common-carriage requirement would be unlawful-for example, if the Commission were to
apply a presumption that all similarly situated edge providers should be treated the same way
absent some special justification. See Cellco, 700 F.3d at 549. Again, to escape treating ISPs as
common carriers and thereby contravening the Communications Act and Verizon, the
Commission must accept that individualized treatment is the norm, not the exception.
III.
AN APPROACH THAT TARGETS ONLY "COMMERCIALLY UNREASONABLE"

ARRANGEMENTS WILL BEST ACHIEVE THE PURPOSE OF SECTION 706
The targeted approach described above is not only compelled by Verizon, but also would
advance the goals of Internet openness, innovation, and infrastructure inveStment better than the
broad-based ban on differential treatment that was struck down in Verizon. That is because, as
14
AT&T has explained in prior comments, 22 allowing contracting flexibility redounds to the
benefit of edge providers and consumers alike, and it spurs network investment by broadband
ISPs.
Indeed, adopting a more narrowly cabined nondiscrimination rule for fixed broadband
Internet access services would parallel the approach taken in other areas outside the commoncarrier context. For example, in the context of program access and retransmission consent, and
of course in the Data Roaming Order upheld in Cellco, the Commission has rightly forsworn any
intent to scrutinize the terms of individual deals unless there is a specific reason, based on the
particular facts and circumstances, for concern. And in antitrust, voluntary agreements among
parties are not treated as unlawful unless there is a specific demonstration of harm or the action
is of a very narrow type for which such harm is all but assured. The Commission should follow
a similar course here.
A.
A Targeted Approach Focusing on Specific Threats to Internet Openness

Makes Abundant Policy Sense
Allowing individualized dealings between ISPs and edge providers is sound policy for a
number of reasons. By enabling smaller edge providers to negotiate specia.l arrangements for the
handling of their traffic, flexible net neutrality rules will empower start-ups to compete more
effectively against more entrenched and well-heeled rivals. And by enabling ISPs to recover the
costs of network upgrades not just from consumers but also from the edge providers whose
applications benefit from such upgrades, flexible rules also will promote deployment of
additional broadband infrastructure and improved features. They also will reduce the cost of
22
See, e.g., Comments of AT&T, Preserving the Open Internet et al., GN Docket No 09191 et al. (filed Jan. 14, 2010) ("AT&T 2010 Comments"); Reply Comments of AT&T,
Preserving the Open Internet eta!., GN Docket No 09-191 eta!. (filed Apr. 26, 20 I 0);
Comments of AT&T, Broadband Industry Practices, WC Docket No. 07-52 (filed June 15,
2007).
15
broadband service for consumers, facilitating greater adoption. Finally, such rules will enable
edge providers and ISPs to efficiently determine which innovative new applications need the
quality-of-service enhancements that only ISPs can deliver. For these and the other reasons
discussed below, sound policy supports the adoption of targeted net neutrality rules that
proscribe only "commercially unreasonable" discrimination.
1. Allowing Individualized Dealings Would Help Small Edge Pr,oviders

Applying a more targeted nondiscrimination requirement to fixed broadband ISPs would
in no way undermine the goal of a free and open Internet. Rather, such a rule would in fact
promote greater diversity in the Internet ecosystem.
Platform owners such as broadband ISPs have no reason to inefficiently discriminate
against new and innovative products and services. 23 Indeed, ISPs' incentives actually run in the
opposite direction. By supporting innovation on their platforms, broadband providers make
those platforms more valuable to end users in the long run, enabling ISPs to reap far greater
economic benefits over time. In particular, a platform provider free from retail price
regulation-as all broadband providers are today-will normally have incentives to deal
evenhandedly with independent providers of complementary applications, because anticonsumer discrimination in the applications market would simply devalue the platform and
23
See, e.g., William J. Baumol, et al., AEI-Brookings Joint Center, Economists' Statement
on Nenvork Neutrality Policy 2 (2007), http://www.brookings.edu/views/papers/litan/
200703jointcenter.pdf; Declaration of Gary S. Becker & Dennis W. Carlton at 12 (attached to
Comments ofVerizon, Preserving the Open Internet et al., GN Docket No. 09- I 91 et al. (filed
Jan. 14, 2010)) ("Becker & Carlton Declaration"); J. Gregory Sidak & David J. Teece,
Innovation Spillovers and the "Dirt Road" Fallacy: The Intellectual Bankntptcy ofBanning
Optional Transactions for Enhanced Delivery Over the Internet, 6 J. Comp. L. & Econ. 521, 566
(20 10); Christopher S. Yoo, Nenvork Neutrality and the Economics of Congestion, 94 Geo. L.J.
1847, 1888-89 (2006); Joseph Farrell & Philip J. Weiser, Modularity, Vertical Integration, and
Open Access Policies: Towards a Convergence ofAntitmst and Regulation in the Internet Age,
17 Harv. J.L. & Tech. 85, 104 (2003).
16
would not enable the provider to earn any profits it could not otherwise earn for the underlying
platform itself.24 As Nobel Prize-winning economist Gary Becker and Dennis Carlton have
explained, "discrimination by broadband access providers that limits access to content usually
reduces the amount that consumers are willing to pay for broadband access services. That is,
consumers are willing to pay more for access to more content and, as a result, broadband access
providers face disincentives for restricting access to Internet content."25 In fact, that incentive to
maximize available content would exist even ifthe broadband market were.uncompetitive as a
general matter. As it is, however, any broadband access provider that prevents innovative new
content and applications from using its platform would inflict considerable harm on itself given
that most consumers could switch to a different provider that does not engage in such selfdefeating behavior. 26
Some net neutrality proponents nonetheless claim that expansive nondiscrimination rules
are necessary to ensure that small, start-up edge providers can reach end users in a way that
enables them to compete with established providers. 27 Without this ability, they c1aim, the next
innovative application--even the next Google or Netflix or Facebook-may never see the light
of day. That argument is conceptually flawed and factually specious.
As an initial matter, the Commission's focus should be on promoting innovation in the
Internet ecosystem as a whole and not on shielding individual competitors per se. As FCC
General Counsel Jonathan Sallet recently stated, regulation should protect "[n]ot competitors, but
24
See, e.g., Farrell & Weiser, supra note 23, at 104; see also Yoo, supra note 23, at 1888-
89.
25
Becker & Carlton Declaration at 12.
26
I d.
27
See, e.g., Open Internet Order, 25 FCC Red at 17920-21 ljf 26.
17
competitio;1."28 In no other area of the economy does the government ban voluntary market
transactions (here, for example, quality-of-service enhancements) specifically in order to prevent
those with superior resources from offering better services to their own customers. Far from it;
there are myriad ways in which entities with superior resources are free to use those resources to
enhance the quality of, or lower the price of, their products and services. For example,
companies with greater assets may be able to fund superior research and development, obtain
more patent licenses, procure higher quality raw materials or other inputs, reduce costs through
vertical integration or volume purchases, pay more for marketing or advertising, or offer higher
salaries to attract the best employees. No one would ever claim that the federal Government
should intercede to prevent these or other uses of resources in order to preserve "a level playing
field." 29 And of course, the Commission itself has recognized not only that its mission is to
protect competition and not individual competitors, but also that "the competitive process itself is
largely about trying to develop one's own advantages, and all firms need not be equal in all
respects for this process to work." 30 In short, the theoretical basis of this rationale for a strict
nondiscrimination rule is thoroughly unsound and anathema to a market economy.
So too is its factual premise-namely, that a strict nondiscrimination rule is needed to
prevent harm to small edge providers. Indeed, allowing broad room for individualized dealings
28
Prepared Remarks of Jon Sallet at 4, Acting General Counsel, FCC, Nat'! Press Club,
Mar. 12,2014, available at http://transition.fcc.gov/Daily_Releases/Daily_Business/
2014/db0312/DOC-326033Al.pdf.
29
Or, as Professors Farber and Katz have put it: ''No one would propose that the U.S. Postal
Service be prohibited from [charging more for] Express Mail because a 'fast lane' mail service is
'undemocratic.' Yet some current proposals would do exactly this for Internet services." David
Farber & Michael Katz, Hold Off on Net Neutrality, Wash. Post, Jan. 19,2007,
http://www. washingtonpost.comlwp-dyn/content/article/2007/01/18/AR20070 1180 1508.html.
30
Report and Order, Competition in the Interstate Jnterexchange Marketplace, 6 FCC Red
5880, 5892 60 (1991).
18
between ISPs and edge providers likely will help small edge providers in the majority of cases.
To understand why that is so, it is important to recognize that the Internet is not now, and has
never been, a "neutral" place where different edge providers compete on an equal playing field.
Quite to the contrary, the largest edge providers-including but not limited to content "hyper
giants" such as Google and Facebook31 -already use their economic power to provide services
to their customers that place them at a distinct advantage vis-a-vis smaller providers. And
limiting ISPs' ability to deal individually with edge providers would do nothing to address any
such inequality. In fact, it almost certainly would make it worse. 32
The poster child for expansive net neutrality rules is the small entrepreneur working in a
garage or low-rent office space. But that entrepreneur's larger and richer rivals already can and
do use their economic power to advantage themselves in ways that broad net neutrality rules
aimed at ISPs do nothing to address. In fact, many oftoday's leading edgeproviders have
themselves evolved into "global delivery networks" with an unprecedented combination of
transmission capacity, processing power, and data storage.33 These networks represent enormous
capital investments that already allow certain edge providers to serve their customers more
effectively and at faster speeds than rivals lacking such resources.
And even mid-size edge providers that cannot deploy such facilities take steps to get a leg
up on competitors in the delivery of their content. For example, they may partner with "Content
31
See Arbor Networks, Two-Year Study of Global Internet Traffic Will be Presented at
NANOG47, Oct. 13,2009, http://www.arbornetworks.com/news-and-events/press-releases/2009press-releases/181 0-two-year-study-of-global-internet-traffic-will-be-presented-at-nanog4 7
(describing "'hyper giants' like Limelight, Facebook, Google, Microsoft and YouTube" that
"now generate and consume a disproportionate 30% of all Internet traffic").
32
For a fuller discussion, see AT&T 2010 Comments at 20-41.
33
Thomas W. Hazlett & Joshua D. Wright, The Law and Economics ofNetwork Neutrality,
45 Ind. L. Rev. 767, 780 (2012).
19
Delivery Networks" (or "CDNs"), which distribute and store copies of content on servers at
multiple locations across the Internet and thus enable end users to gain access to that content
more quickly and reliably than in a conventional "unicast" arrangement, where each end user
must communicate directly with a single centralized server. 34 Although
and a number of
other large Internet companies self-provision their own CDNs, many application and content
providers outsource this functionality by hiring third-party CDN providers such as Akamai,
Limelight, Level 3, and AT&T. 35 As one such provider explains: "A top-ranked CDN
strategically places its server farms near the Internet's most important peering points. This
allows your customers to enjoy the best possible experience when they are using your web-based
applications. Lower latency and no lag time means happier users, who will be more likely to tell
their friends about a great website they found." 36 The bottom line is that, all else held equal, end
users have better experiences in their interactions with CDN-equipped content providers than
with content providers that do not use CDN functionality. This in turn means that well-funded
content and application providers that can afford to purchase (or self-provision) CDN services
have a substantial advantage over less-well-funded rivals in the battle to bring end users topquality Internet experiences. For that reason, rules limiting ISPs' ability to deal individually with
edge providers would do little to make the Internet more "neutral." Rather; they would allow
larger, better funded edge providers to maintain an advantage in delivering services to their endusers.
between ISPs and edge providers likely will help small edge providers in the majority of cases.
To understand why that is so, it is important to recognize that the Internet is not now, and has
never been, a "neutral" place where different edge providers compete on an equal playing field.
Quite to the contrary, the largest edge providers-including but not limited to content "hyper
giants" such as Google and Facebook31 -a!ready use their economic power to provide services
to their customers that place them at a distinct advantage vis-a-vis smaller providers. And
limiting ISPs' ability to deal individually with edge providers would do nothing to address any
such inequality. In fact, it almost certainly would make it worse. 32
The poster child for expansive net neutrality rules is the small entrepreneur working in a
garage or low-rent office space. But that entrepreneur's larger and richer rivals already can and
do use their economic power to advantage themselves in ways that broad net neutrality rules
aimed at ISPs do nothing to address. In fact, many oftoday's leading edge providers have
themselves evolved into "global delivery networks" with an unprecedented combination of
transmission capacity, processing power, and data storage. 33 These networks represent enormous
capital investments that already allow certain edge providers to serve their customers more
effectively and at faster speeds than rivals lacking such resources.
And even mid-size edge providers that cannot deploy such facilities take steps to get a leg
up on competitors in the delivery of their content. For example, they may partner with "Content
31
See Arbor Networks, Two-Year Study ofGloballnternet Traffic Will be Presented at

NANOG47, Oct. 13, 2009, http://www.arbornetworks.com/news-and-events/press-releases/2009press-releases/ 181 0-two-year-study-of-gl obal-internet-traffic-wil I-be-presehted-at-nano g4 7
(describing "'hyper giants' like Limelight, Facebook, Google, Microsoft and YouTube" that
"now generate and consume a disproportionate 30% of all Internet traffic").
32
For a fuller discussion, see AT&T 20 l 0 Comments at 20-41.
33
Thomas W. Hazlett & Joshua D. Wright, The Law and Economics ofNetwork Neutrality,
45 Ind. L. Rev. 767, 780 (2012).
19
Delivery Networks" (or "CDNs"), which distribute and store copies of content on servers at
multiple locations across the Internet and thus enable end users to gain access to that content
more quickly and reliably than in a conventional "unicast" arrangement, where each end user
must communicate directly with a single centralized.server.34 Although Google and a number of
other large Internet companies self-provision their own CDNs, many application and content
providers outsource this functionality by hiring third-party CDN providers such as Akamai,
Limelight, Level3, and AT&T. 35 As one such provider explains: "A top-ranked CDN
strategically places its server farms near the Internet's most important peering points. This
allows your customers to enjoy the best possible experience when they are using your web-based
applications. Lower latency and no lag time means happier users, who will be more likely to tell
their friends about a great website they found." 36 The bottom line is that, all else held equal, end
users have better experiences in their interactions with CDN-equipped content providers than
with content providers that do not use CDN functionality. This in turn means that well-funded
content and application providers that can afford to purchase (or self-provision) CDN services
have a substantial advantage over less-well-funded rivals in the battle to bring end users topquality Internet experiences. For that reason, rules limiting ISPs' ability to deal individually with
edge providers would do little to make the Internet more "neutral." Rather, they would allow
larger, better funded edge providers to maintain an advantage in delivering "services to their endusers.
34
See, e.g., id. at 786 (explaining that CDNs allow applications to gain "faster access to the
customer's screen" through "local caching").
35
!d. at 780.
36
See CacheFly Blog, http://blog.cachefly.com/20 13/1 0/08/web-based-applicationsserving-rich-media-will-thrive-with-a-cdn/.

20
One way to improve the lot of smaller edge providers would be to permit individualized
deals between ISPs and content providers. Limits on paid prioritization and other specialized
offerings benefit providers that have established market dominance by building out their own
capital-intensive CDNs. But such limits hurt other edge providers that wish to compete through
alternative business plans. In particular, they harm content and application providers that view
prioritization arrangements with ISPs as an efficient afternative to CDN functionality. And those
edge providers are likely to include the majority of small start-ups that net neutrality rules are
designed to benefit. Simply put, innovators working out of a garage cannot afford to put servers
in every wire center, like Netflix can. Instead, smaller companies normally prefer to expend
their scarce resources on opex rather than capex, and such providers may well find it beneficial
to pay for a superior level of service from the terminating ISP. And even those edge providers
that prefer to rely on conventional CDNs will likely see their costs for such. services decline in
the face of competition from ISPs. In sum, limiting "optional business-to-business transactions
for [quality of serviceJwould," far from helping, actually "serve as an entry barrier" for smaller
e d ge prov1.d ers. 37
And there are other ways that fledgling edge providers would benefit from flexible net
neutrality rules. Such a regime would empower upstarts to differentiate their products from
those of more established competitors through individualized arrangements with ISPs. For
example, in 2002, when it was still a relative newcomer competing with entrenched rivals,
Google paid for prime placement of its search service on various ISPs' por1;als, including
AOL's. 38 Other applications seeking to unseat established competitors have pursued similar
37
Sidak & Teece, supra note 23, at 543.
38
Hazlett & Wright, supra note 33, at 796.

21
strategies. 39 Banning or limiting these arrangements in the name ofhelping small providers
would thus achieve precisely the opposite result in many cases, entrenching larger rivals at the
expense of innovative new enterprises. As Howard Shelanski, now head ofthe Office of
Information and Regulatory Affairs, has explained:
[A]ccess quality may be an important way for new competition in some services
to differentiate themselves from incumbents. Established applications providers
have little interest in defending against entrants on new competitive dimensions.
The "neutral" status quo may therefore be of competitive advantage to
applications incumbents while denying a competitive tool to new innovators from
the edge. 40
In short, banning discrimination by ISPs or materially limiting their ability to transact
with edge providers on an individualized basis cannot be justified as a means of protecting small
edge providers. To the contrary, flexible net neutrality rules are more likely to empower smaller
competitors to flourish in the marketplace.
2. Enabling ISPs to Negotiate with Edge Providers Would Reduce the Costs of
Broadband for Consumers and Promote Increased Broadband Adoption
Allowing ISPs to experiment with different pricing structures and impose charges on
edge providers also would lead to pricing innovation that redounds to the benefit of consumers.
Conversely, by artificially restricting a broadband provider's ability to recover network costs
from application and content providers, the Commission would impose upward pressure on the
rates paid by ordinary broadband customers. 41
Like newspapers and travel agents, broadband providers operate in a classic "two-sided"
marketplace. Such two-sided markets involve a platform intermediary (like a newspaper) that
39
!d.
40
Howard A. Shelanski, Network Neutrality: Regulating with More Questions Than

Answers, 6 J. on Telecomm. & High Tech. L. 23,28 (2007).
41
See Declaration ofMarius Schwartz at 18 (attached to AT&T 2010 Comments as Exh. 3)

("Schwartz Declaration").
22
links two separate groups (for example, readers and advertisers). Broadband providers similarly
serve as an intermediary between end users and edge providers, and like any other participant in
a two-sided market, they must look to one side--or both-for cost recovery. Different two-sided
marketplaces feature a wide variety of efficient cost-recovery schemes, hammered out through
the free play of market forces. 42 Today, for example, many broadband providers recover
essentially all of the costs of residential access networks from fees imposed on the subscribers tq
those networks. But this traditional cost-recovery model will become increasingly unsustainable
as networks continue investing billions to accommodate the network demands imposed by
bandwidth-intensive applications that are used extensively by only limited subsets of subscribers.
By limiting broadband providers' ability to enter into a range of agreements with
application providers for enhanced service quality, rules that restrict dealings between ISPs and
edge providers impede pricing innovation and force ISPs to recover from consumers alone all of
the network costs of accommodating increasingly bandwidth-intensive applications. Indeed,
proponents of net neutrality have sometimes acknowledged that a strict nondiscrimination rule
could lead to higher prices for ordinary residential subscribers. Such a rule would be, in the
words of Tim Wu, "a subsidy to the creative and entrepreneurial at the expense of the passive
and consumptive"-i.e., ordinary American consumers. 43 That outcome not only would be
inefficient and inequitable, but also would particularly hurt those consumers who are low-income
or who simply would prefer to pay low rates for basic broadband connectivity and do not wish to
use quality-of-service-needy, bandwidth-intensive applications in the first place. And as prices
for broadband service go up, adoption of broadband services will fall. There should be no
42
See id. at 17.
43
Robin S. Lee & Tim Wu, Subsidizing Creativity Through Network Design: Zero-Pricing
and Net Neutrality, 23 J. Econ. Perspectives 61, 67 (2009).
23
illusions about this fundamental trade-off. Conversely, by allowing ISPs to negotiate directly
with edge providers, the Commission could both decrease the costs of broadband service for
average consumers and increase the rates ofbroadband adoption.
3. Flexible Net Neutrality Rules Would Spur ISPs to Invest in Broadband

Infrastmcture and New Service Features
Allowing ISPs to negotiate tailored deals with edge providers also would maximize ISPs'
incentives to invest in and deploy broadband infrastructure, which is the touchstone for any
exercise ofthe Commission's section 706 authority. For one thing, by spurring innovation and
reducing consumer prices in the manner described above, individualized arrangements naturally
raise the demand for broadband services, thus making network expansion more attractive.
44
In
addition, the ability to experiment with different pricing structures that generate revenues from
edge providers as well as end users would provide greater incentives for ISPs to invest and
innovate in a number of different ways. For example, if a new service (for example, an advanced
streaming HD video service) requires upgrades to the core network, enabling broadband
providers to recover some of the costs of those upgrades from the content providers that use them
will increase ISPs' incentives to make the upgrades in the first place. And this, again, will
promote the virtuous cycle that enables the development of innovative new services while at the
same time spurring network infrastructure investment.45 By contrast, "limitations on charging
for prioritization and enhancements could skew investments away from 'smart' functionalities
(e.g., in routers), functionalities that promote the goals of public safety, national security, and
other goals desired by the Commission.'rl 6 That would not be good public policy.
44
See Verizon, 730 F.3d at 634.
45
See Gary Becker et al., Net Neutrality and Consumer Welfare, 6 J. ofComp. L. & Econ.
497, 518-19 (2010).
46
Schwartz Declaration at 13.

24
4. Allowing Individualized Dealings Would Promote Efficiency and Stimulate

the Development ofNew Products a11d Services
Finally, individualized dealings between ISPs and edge providers will make it easier for
ISPs to determine which specific applications may require specialized handling and enable
deployment of innovative new services by content providers of all sizes. More specifically,
granting ISPs broad discretion to provision specialized quality of service ("QoS") enhancements
according to individually tailored arrangements hammered out in the marketplace would promote
the development of new products and services that depend on QoS guarantees in order to
function or that can perform better with such guarantees. It is well recognized that latency and
jitter can devalue performance-sensitive content while leaving non-performance-sensitive
content unharmed. Allowing ISPs the flexibility to offer QoS provisioning to services that
actually need it would therefore provide important benefits to providers of those services and
their customers. As with any other market where scarce goods must be efficiently allocated to
their most valued uses, price signals are essential to the success of any prioritization scheme. 47 If
a particular level of prioritization could be had simply by demanding it from the ISP, thenunder a familiar tragedy-of-the-commons dynamic--every user would demand high priority,
with the consequence that no packets would receive any meaningful priority. Price signals
provide the only feasible means of efficiently identifying high value, latency-sensitive products
that need to be prioritized in order to realize their full worth for consumers. And as AT&T has
explained in prior comments,48 the most efficient and only workable solution may be to charge
the providers of performance-sensitive, high-bandwidth applications themselves, who are the
parties that will know the most about the particular QoS needs of their individual applications
47
See id. at 11-12.
48
See AT&T 2010 Comments at 139-40.

25
and which netv.ork techniques are best suited to meet those needs. Importantly, such a solution
requires flexibility for ISPs and individual edge providers to work out specialized terms that are
tailored to the needs of the edge provider in question and that price such services efficiently.
Without such flexibility, services that require unique specialized treatment may never see the
light of day. 49
Some advocates of more expansive regulation have argued that once broadband providers
are allowed to strike individual deals for the prioritization of some latency-sensitive traffic, they
will have the incentive and ability to consign all other traffic "to the digital. equivalent of a
winding dirt road." 50 That concern, however, is deeply misplaced. 51 Broadband providersincluding both cable providers and ILECs, as well as new entrants such as Google Fiber-are in
fact investing tens of billions of dollars to increase Internet access speeds, including by
deploying next-generation technologies specifically in order to gain a leg up on rivals. 52
Providers would not be investing those sums, or competing on that basis, if it were commercially
viable to consign their own customers to a "dirt road." Indeed, if Broadband Provider X began
degrading its best-effort Internet access platform to favor its "prioritized" content, such that most
applications and content loaded more slowly on X's network than on its rivals' Internet access
49
See, e.g., Becker & Carlton Declaration at 27 (explaining that "a variety of differentiated
services may result in benefits to consumers but may be inconsistent with net neutrality rules"
and that "the adoption of restrictions on network operations and business models can inhibit the
development of services that might otherwise be developed in the future") ..
50
See, e.g., Lawrence Lessig & Robert W. McChesney, No Tolls on the Internet, Wash.
Post, June 8, 2006, http://www.washingtonpost.com/wp-dyn/content/article/
2006/06/07/AR2006060702108.html; see also Open Internet Order, 25 FCC Red at 17921-22
51
See AT&T 2010 Comments at 127.
52
See Anna-Marie Kovacs, Telecommunications Competition: The InfrastructureInvestment Race 35-37 (Oct. 2013), http://internetinnovation.org/images/misc_content/studytelecommunications-competition-09072013.pdf; Associated Press, Google Aims to Provide
Broadband in 34 More Cities, Feb. 19,2014, available at http://www.cnbc.com/id/101428947.
26
platforms, customers would begin switching to those rivals en masse. The rivals would
encourage consumers to do precisely that by running advertisements emphasizing the poor
performance on Broadband Provider X's network. For that matter, application and content
providers themselves would likewise be free to broadcast their preference for X's rivals right on
their homepages for all traffic bound for X's current customers. In short, there is nothing to this
concern. Rather, allowing ISPs and edge providers to freely negotiate for service enhancements
will bring innovative new services and applications to the Internet ecosystem.
B.
A Targeted Rule Would Be in Harmony with Other Rules Sharing a Similar

Purpose and with Regulatory Best Practices
Adopting a case-by-case approach that focuses on specific threats to Internet openness,

innovation, and investment also makes abundant sense from a broader regulatory perspective. In
a variety of contexts, academics and regulators have agreed that private market transactions
should be presumptively lawful unless there is a demonstrated harm to which government action
is specifically addressed. These principles are reflected in the FCC's own rules, modern antitrust
doctrine, and regulatory best practices.
FCC Precedent The revised program access rules provide a good example of the type of
narrowly tailored regulation that is appropriate in the net neutrality context. Those rules enforce
statutory prohibitions on "activities that inhibit competition in video programming," codified at
47 U.S.C. 548. 53 Under the rules, the Commission applies far more scrutiny to special
agreements between cable operators and video programmers that are vertically integrated or
otherwise affiliated-that is, those particular situations in which cable operators are likely to
have the incentive and ability to inflict harm on competition. And even in that context, the 2012
Program Access Order allowed the per se ban on exclusive contracts for satellite cable and
53
Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1308 (D.C. Cir. 201.0).
27
satellite broadcast programming between a cable operator and cable-affiliated program vendor to
sunset. 54 At the same time, the Commission has recognized that "there may be certain regionspecific circumstances where vertically integrated cable operators may have an incentive to
withhold satellite-delivered programming from competitors" and has adopted a "case-by-case
approach" to deal with "competitively harmful conduct" by vertically integrated operators "in a
more targeted, less burdensome manner." !d. at 12619 21. And the Commission has
recognized that even "exclusive contracts" between operators and affiliated content-providers
"do not always harm competition and can have procompetitive benefits." !d. at 12620
21.
Thus, the Commission requires such harm to be demonstrated in a case-by-case complaint

process that places the burden of proof on the complainant. !d. at 12640-41
The Commission's retransmission consent rules, which among other things require "good
faith" negotiations by television broadcast stations that provide retransmission consent, also
provide a useful example. There, the Commission has recognized that it should not engage in
"detailed substantive oversight" of retransmission consent negotiations, and it has therefore
declined to police the individual terms negotiated by private parties as a general matter. 55 At the
same time, the Commission has recognized that "any effort to further anti-competitive ends
through the negotiation process would not meet the good faith negotiation requirement." 56 The
rules thus represent a narrowly tailored exception-based on specific competition concerns-to
54
Report and Order, Revision of the Commission's Program Access Rules et al., 27 FCC
Red 12605, 12607 1 (2012).
55
First Report and Order, Implementation of the Satellite Home Viewer Improvement Act of
1999, 15 FCC Red 5445, 5448 6 (2000).
56
!d. at 5448
8.
28
the general principle that private parties are generally free to contract with each other as they
wish. 57
Antitrust. Adopting a targeted approach focusing on situations in which harm is most

likely also accords with modem antitrust law, which views voluntary commercial agreements as
efficient except when there is a specific demonstration of the type of competitive harm on which
antitrust is focused. For example, even conduct by a monopolist is not condemned by the
antitrust laws unless it "harm[s] the competitive process," not merely "one or more competitors,"
and the conduct has a demonstrated "anti competitive effect." United States v. Microsoft Corp.,
253 F.3d 34, 58-59 (D.C. Cir. 2001). Similarly, antitrust law has moved away from per se rules
in all but a handful of very narrow circumstances. 5 8 Per se rules, like broad net neutrality rules,
presume that certain conduct is harmful as a matter of law. Those rules are now reserved for a
narrow range of situations that are rarely if ever procompetitive (for example, horizontal price
fixing). See, e.g., Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 886, 895 (2007)
(per se rules should be restricted to situations that '"always or almost always tend to restrict
competition and decrease output"' (quoting Business Electronics Corp. v. Sharp Electronics
Corp., 485 U.S. 717, 723 (1988)). That is because, as the Supreme Court has stated, per se rules
"can be counterproductive" and "can increase the total cost of the antitrust system by prohibiting
procompetitive conduct[.]" !d. And vertical arrangements-like those between ISPs and edge
providers-are overwhelmingly likely to be procompetitive, especially where the parties lack
any theoretical incentive to act anti-competitively, and rules that limit such arrangements ex ante
57
!d. at 5453
19-20.
58
See Christopher S. Yoo, What Can Antitmst Contribute to the Network Neutrality
Debate?, 1 International J. of Communication 493, 503-04 (2007).
29
are therefore inherently suspect. 59 For that very reason, per se treatment of vertical arrangements
under the antitrust laws is extinct. 60 That same principle should apply in the net neutrality
context.
Regulatory best practices. Adopting tailored net neutrality rules that apply only in cases
where there is a demonstrated harm to Internet openness, innovation, or broadband investment
also is in line with regulatory best practices. President Obama's cost-benefit executive order, for
example, states that each agency should "propose or adopt a regulation only upon a reasoned
determination that its benefits justify its costs" and "tailor its regulations to impose the least
burden on society, consistent with obtaining regulatory objectives."61 Applying regulations
where there is no demonstrated need for them is inconsistent with that advice and could lead to
unintentionally stifling innovation, distorting the competitive marketplace, and other harms that
would ultimately be felt by consumers. As the FTC has warned about regulation of broadband
Internet access services:
Policy makers also should carefully consider the potentially adverse and
unintended effects of regulation in the area of broadband Internet access before
enacting any such regulation. Industry-wide regulatory schemes- particularly
those imposing general, one-size-fits-all restraints on business conduct- may well
have adverse effects on consumer welfare, despite the good intentions of their
proponents. Even if regulation does not have adverse effects on consumer
welfare in the short term, it may nonetheless be welfare-reducing in the long term,
particularly in terms of product and service innovation. Further, such regulatory
59
Hazlett & Wright, supra note 33, at 815-16 (quoting Francine Lafontaine & Margaret
Slade, Vertical Integration and Firm Boundaries: The Evidence, 45 J. Econ. Lit. 629, 680
(2007)) ("[F]aced with a vertical arrangement, the burden of evidence should be placed on
competition authorities to demonstrate that that arrangement is harmful before the practice is
attacked."); id at 809 (noting "near[] uniform recognition that vertical contracting practices are
more likely to help than harm consumers").
60
Yoo, supra note 58, at 509.
61
See Exec. Order No. 13563, 76 Fed. Reg. 3821 (Jan. 18, 2011 ); see also Exec. Order No.
13579, 76 Fed. Reg. 41587 (July 11, 2011) (exhorting independent agencies to follow same
principles).
30
schemes inevitably will have unintended consequences, some of which may not .
be known until far into the future. Once a regulatory regime is in place, moreover,
it may be difficult or impossible to undo its effects. 62
Instead, the FCC should adopt a system of smart regulation similar to that advocated in a recent
paper by former FCC Chairman Reed Hundt and Gregory L. Rosston, whic:h would involve
giving "clear guidance" to regulated parties while simultaneously paying great attention to the
"actual facts of any dispute," condemning practices only where they are demonstrated to be
harmfu1. 63 It would also be consistent with what Chairman Wheeler has stated is his own
regulatory philosophy, which involves the Commission being "extremely circumspect" in its
approach, using its "tools in a fact-based, data-driven manner," and always asking "what,
if any,
action (including governmental action) is needed to preserve the future of network

competition." 64
In sum, there are no legal or policy grounds for broad net neutrality rules that view
individually tailored treatment of edge providers skeptically as a general matter. Instead, the
Commission should focus on those situations where harm to the open Jnten1et, innovation, and
investment is most likely to occur. And as discussed in Part II above, even in those situations,
the Commission should intervene only on a case-by-case basis as guided by the particular facts
and circumstances at issue.
62
FTC, StqffReport: Broadband Connectivity Competition Policy, at 11 (2007),

http://www. ftc. govI sites/de fault/files/documents/reports/broadband -conn ecti vity-competi ti onpolicy/v070000report.pdf.
63
See Reed E. Hundt & Gregory L. Rosston, Articulating a Modern Approach to FCC
Competition Policy, 66 Fed. Comm. L.J. 71, 95-96 (2013).
64
Prepared Remarks of FCC Chairman Tom Wheeler at 3-4, Ohio State University, Dec. 2,
2013, http://transition.fcc.gov/Daily_Releases/Daily_Business/20 13/db 1202/DOC324476Al.pdf.
31
CONCLUSION
The Commission should embrace the opportunity presented by the D.C. Circuit's remand
in Verizon by adopting the policies outlined above.
Is/ Christopher Heimann
Christopher M. Heimann
Gary L. Phillips
Lori Fink
AT&T SERVICES, INC.
(202) 457-3058 (phone)
Counsel for AT&T Inc.

March 21, 2014
32
Sharon Hurd
Wednesday, April 02, 2014 12:31 PM
Mark Wigfield
Meribeth McCarrick; Susan Szulman
FW: Interview request- Net Nuetrality Interview Request from American University
From:
Sent:
To:
Cc:
Subject:
f7GIA Exemption 5
y
From: Satchel Price
L'-'-""""-""'"'
Sent: Wednesday, April 02,

To: MediaRelations
Subject: Interview request
Hello,
My name is Satchel Price, I'm a senior studying journalism at American University and an associate editor at
Vox Media. I'm currently working on a story that looks at the potential impact of the recent Verizon net
neutrality ruling and the proposed Comcast-TWC merger on the online gaming industry, particularly relating to
major hardware and software makers like Sony, Microsoft and Valve.
As such, I'm reaching our to your agency hoping to interview one ofyour staff members to briefly discuss this.
I'd be happy to do the interview by phone or e-mail, and it wouldn't require more than a few minutes of time.
s week and next week ifwe can arrange something. You can reach me at this
by phone at
Looking forward to speaking.
Exemption 6
Thanks,
Satchel Price
From:
Sent:
To:
Subject:
Neil Grace
Thursday, February 20, 2014 1:15 PM
Mark Wigfield
Fw: Net Neutrality Clarification
!::::01A Exemption 5
Neil Derek Grace

(o) 202-418-0506 EGIA Exemption 6
neil.grace@fcc.gov
From: Anne L Kim [mailto:alkim@cq.com]
Sent: Thursday, February 20, 2014 12:15 PM

To: Neil Grace
Subject: RE: Net Neutrality Clarification
Sure.
- Will the NPRM be drafted using Section 706 authority?
- If so, would the NPRM be drafted using Section 706 for both the no-blocking and no-discrimination rules?
-In drafting the NPRM, will you be looking at the data roaming rules for guidance (the idea of general rules of the road
and subsequent case-by-case decisions) only for the no-discrimination rule, or also for the no-blocking ruule?
- What does it mean for the Title II docket to be left open?
-Is reclassification still an option for the NPRM?
From: Neil Grace [Neii.Grace@fcc.gov]

To: Anne L Kim
Subject: Re: Net Neutrality Clarification
Hi sure- our commission meeting is still happening. Want to email over your q?
Neil Derek Grace

(o) 202-418-0506
neil.grace@fcc.gov
From: Anne L Kim [mailto:alkim@cq.com]

To: Neil Grace
Subject: Net Neutrality Clarification

Hi Neil:
I was hoping to get some clarification on the details of yesterday's announced path forward on net neutrality, specifically
on the Title II docket and use of section 706 authority.
1
Is anyone available to speak with me about this?

Thanks,
Anne Kim
CQ Roll Call
Legislative Action Reporter
(202) 650-6526
alkim@cq.com
This e-mail may contain confidential material. If you are not an Intended recipient. please notify the sender and delete all copies. It may also contain personal
views which are not the views of CQ Roll Call or its owner, The Economist Group. We may monitor e-mail to and from our network. For company information go to
http:lllegal.economistgroup.com.
From:
Sent:
Subject:
Shannon Gilson
Monday, May 12, 2014 9:51 PM
Daniel Alvarez; Stephanie Weiner
Neil Grace; Mark Wigfield
Fw: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality Proposal
Follow Up Flag:
Flag Status:
Follow up
Completed
To:
Cc:
Fr-G!lA Exemption 5_
_:-, ..
:...
:.
. . - . . .
. :. : : . .
.
: . .
. '
. ...
'
:.
.
.,q
. : .:
.. : .
------------------------------
From: Brooks Boliek [mailto:bbo!iek@politico.com]

Sent: Monday, May 12, 2014 09:48PM
To: Shannon Gilson
. subject: Re: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality Proposal
Really!
I have to 'look them up.
Some commish aids complaining their offices haven't seen the draft.
Sorry so late.
bb
Brooks Bolick I POLITICO
Technology reporter
240-281-4901
bboliek@politico.com
@technocowboy
On May 12, 2014, at 9:01 PM, "Shannon Gilson" <Shannon.Gilson@fcc.gov> wrote:

Fact: I used to work with Ro Khanna.
-----------------------------------------------
From: Brooks Boliek [mailto:bboliek@politico.com]

To: Shannon Gilson
Subject: Fwd: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality Proposal
FYI
bh
Brooks Boliek I POLITICO
Technology reporter
240-281-490 I
bboliek@politico.com
@technocowboy
From: Tony Romm <tromm@politico.com>
Date: May 12,2014 at 8:43:20 PM EDT
To: TP-Tech <tech@politico.com>
Subject: FW: Statement ofRo Khanna on Chairman Wheeler's Revised Net
Neutrality Proposal
to the extent we care to glorify the silicon valley plutocracy in action,
this:
Tony Romm I POLITlCOPro

T..,..,uu>v.v
@tonyromm
From: Tyler Law [tyler@rokhanna.com]
To: Tony Romm
Subject: Fwd: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality
Proposal
W ap.ted to make sure you got this

----------Forwarded message---------From: Ro for Congress Press <press@rokhanna.com>
Date: Mon, May 12,2014 at 5:40PM
Subject: Statement ofRo Khanna on Chairman Wheeler's Revised Net Neutrality
Proposal
To: tyler@rokhanna.com

MONDAY, MAY 12,2014
CONTACT: Tyler Law, 510-326-1273
tyler@rokhanna.com
2
Statement ofRo Khanna on Chairman Wheeler's Revised Net

Neutrality Proposal
FREMONT- Ro Khanna issued the following statement today in response to
revisions in Chairman Wheeler's net neutrality proposal:
"Chairman Wheeler may have made some revisions to his initial proposal, but be
still falls far short of ensuring a free and open Internet. The idea of allowing 'fast
lanes' for certain content providers, or any form of discrimination in the market,
has disastrous implications for small businesses and entrepreneurs and it makes
me question his basic understanding of net neutrality. Frankly, a former
telecommunications lobbyist should never have been appointed to chair the
Federal Communications Commission in the first place.
"We need to move immediately to classify Internet Service Providers as common
carriers. But most importantly, Congress needs to pass a bipartisan Internet Bill of
Rights that will ensure net neutrality, protect citizens from warrantless mass
surveillance and provide consumers with more control over their personal data. I
recognize that defending our constitutionally guaranteed rights is increasingly
difficult in a digital world, and as a member of Congress, I will continue to
champion a free and open Internet."
Change.org Petition: Ro Khanna's Internet Bill of Rights
Ro Khanna is a candidate for Congress in California's 17th district, which

encompasses the heart ofSilicon Valley. Since announcing his campaign for
Congress in early April, Ro Khanna has received key endorsements from Lt.
Governor Gavin Newsom, former Mayor Orrin Mahoney of Cupertino, Mayor
Jose Esteves ofMilpitas, and over 200 of the leading job creators and innovation
luminaries in Silicon Valley including Sheryl Sandberg, Marissa Mayer and Eric
Schmidt.
Learn more about the campaign: RoK!tamza.com
Connect with Ro on Facebook and Twitter.
###
Ro for Congress Press

. http://www.rokhanna.com/
Ro for Congress PO Box 1398, Fremont, CA 94538, United States

This email was sent to tyler@rokhanna.com. To stop receiving ema:ils, click here.
Tyler Law
Press Secretary
Ro Khanna for Congress
510-326-1273
Follow me on Twitter @tyzlaw
Kirby{ Paul <paul.kirby@wolterskluwer.com>

Tuesday{ April 01 2014 1:48 PM
Shannon Gilson; Neil Grace; Mark Wigfield
RE: would the chairman like to comment on o'rielly's speech today?
FCBA Speech FINAL.pdf
From:
Sent:
To:
Subject:
Attachments:
l ve attached it. He criticizes NTIA decision on ICANN and expected FCC action on net neutrality.
Paul Kirby
Senior Editor
TRDaily
202-842-8920
1015 15th St.
/Othjloor
Waslzingtou, D.C, 20005

www.tr.com
pau/.kirbv@wolterskluwer.com
From: Shannon Gilson [mailto:Shannon.Gilson@fcc.gov]

To: Kirby, Paul; Neil Grace; Mark Wigfield
Subject: RE: would the chairman like to comment on o'rielly's speech today?
Hey Paul,
I missed the remarks. What's the upshot?
From: Kirby, Paul [mailto:paul.kirby@wolterskluwer.com]
Sent: Tuesday, April 01, 2014 1:43 PM

To: Neil Grace; Shannon Gilson; Mark Wigfield
Subject: would the chairman like to comment on o'rielly's speech today?
Paul Kirby
Senior Editor
TRDaily
202-842-8920
1015 15th St. NW, 10th floor
Washington, D.C., 20005
www.tr.com
pau/.kirby@wolterskluwer.com
From:
Sent:
To:
Subject:
Brendan Sasso < bsasso@ nationaljournal.com >

Monday, March 31, 2014 5:08 PM
Mark Wigfield
Re: peering
In response to my question, the chairman said he doesn't think peering is a net neutrality issue. I interpreted that
to mean he doesn't think it should be part of the new Open Internet proceeding. Are you saying that
interpretation is wrong? Is the FCC still studying whether to regulate peering through the new Open Internet
rules? Thanks.
On Mon, Mar 31,2014 at 2:28PM, Mark Wigfield <Mark.Wigfield(a)fcc.gov> wrote:
Shannon tells me you had a few questions about peering following the meeting. On background, we can say
this:
The scope of the 20 10 Open Internet Order was confined to retail services to consumers and did not include
interconnection or peering. However, interconnection is important to Chai1man Wheeler. It is one of the
elements of his network compact. The Commission has received comments on peering, which it is reviewing
carefully.
Brendan Sasso
Technology Reporter
National Journal
(202) 266-7685
From:
Sent:
To:
Subject:
grant_gross@idg.com
Tuesday, April 01, 2014 9:09 AM
Mark Wigfield
Re: My question about the IP transtition
Hey, Mark
Last time I'll ask. Any luck with this?
I'm following up on the IP transition and the connection to the court's net neutrality ruling. Some people are worried that
the court's recent decision on net neutrality could have an effect on the IP transition and the FCC's ability to enforce
common carrier rules.
Harold Feld's blog post explains it pretty well: http://www.publicknowledge.org/news-blog/blogs/the-net-neutrality-decisionand-the-ip-transition.-what-happens-when-you-ca
Do you guys have the same concerns?
Thanks
Grant
Grant Gross
Washington correspondent
IDG News Service
Phone: 202-595-9882
IDG News Service serves as a wire service for PC World, Computerworld, Macworld, lnfoWorld, Network World, CIO, and
hundreds of other technology-related magazines and websites worldwide. I DG publications reach more than 100 million
readers a month, the largest tech audience in the world.
From:
Sent:
To:
Subject:
Satchel Price < satcheleprice@gmail.com >

Mark Wigfield
Re: Interview request
Apologies for the confusing phrasing, you're correct, I'm referring to the court decision regarding open Internet
rules. I meant to talk about the relationship between that decision and the digital distrubution of content (gaming
in particular), in reference to the first question.
I hope that clears things up, let me know if you have any more questions.
On Tuesday, April 8, 2014, Mark Wigfield <Mark.Wigfielcl@fcc.gov> wrote:
OK, haven't responded yet. I want to make sure what decision you're talking about on digital distribution. I thought you
were referring to the open Internet decision, but perhaps not
From: Satchel Price [mailto:satcheleprice@gmail.com]
Sent: Tuesday, April 08, 2014 10:24 AM

To: Mark Wigfield
Subject: Re: Interview request
Hey Mark,
Following up one more time. Not sure if you've tried responding and it just didn't go through, but I'd love
answers to the following questions as soon as possible.
1. With the possible implications of the original V erizon comi ruling on digital distribution, how does the
increasingly large industry of online gaming fit into that equation?
2. Verizon's CEO has said in the past (http://www.gamespot.com/miicles/verizon-savs-gamers-should-paymore-for-bandwidth-update/11 00-6418017 /) that garners should be charged extra for their bandwidth usage. Is
there concern that breaking down net neutrality would adversely affect the multi-billion-dollar gaming industry,
and consumers in particular?
3. Gaming companies like Sony, Microsoft and Valve have made incredible innovations in recent years (Xbox
Live, Steam, the upcoming Playstation Now service, etc.), but they practically all require high-bandwidth
Internet connections. Would the breakdown of previous net neutrality rules lead to less innovation in this field?
4. Does the FCC speak with or work with game developers, publishers and others
regarding these issues? Have those discussions ramped up in recent months?
in the industry
5. If the Comcast-TWC merger passes, does the FCC have any plans to try and protect consumers, and garners
in particular? How might the FCC try to "save the Internet" without its old enforcement powers?
1
Thanks again,
Satchel Price
On Mon, Apr 7, 2014 at 10:3 7 AM, Satchel Price <satcheleprice{a)gmail.com> wrote:

The questions are following, however much you want to go into your answers is fine. I appreciate you taking
the time to help out.
1. With the possible implications of the original Verizon court ruling on digital distribution, how does the
increasingly large industry of online gaming fit into that equation?
2. Verizon's CEO has said in the past (http://www.gamespot.com/articles/verizon-says-gamers-should-paymore-for-bandwidth-update/ 1100-6418017/) that garners should be charged extra for their bandwidth usage. Is
there concern that breaking down net neutrality would adversely affect the multi-billion-dollar gaming industry,
and consumers in particular?
3. Gaming companies like Sony, Microsoft and Valve have made incredible innovations in recent years (Xbox
Live, Steam, the upcoming Playstation Now service, etc.), but they practically all require high-bandwidth
Internet connections. Would the breakdown of previous net neutrality rules lead to less innovation in this field?
4. Does the FCC speak with or work with game developers, publishers and others involved in the industry
regarding these issues? Have those discussions ramped up in recent months?
5. If the Comcast-TWC merger passes, does the FCC have any plans to try and protect consumers, and garners
in particular? How might the FCC try to "save the Internet" without its old enforcement powers?
Thanks again,
Satchel Price
On Mon, Apr 7, 2014 at 10:23 AM, Mark Wigfield <Mark.Wigfield{a)fcc.gov> wrote:

Let's start with e-mail. What are your questions?
From:
Sent:
To:
Cc:
Subject:
Sharon Hurd
Wednesday, February 19, 2014 12:33 PM
Meribeth McCarrick
FW: Net neutrality proposal
From: Bill Donahue [mailto:bill.donahue@law360.com]
Sent: Wednesday, February 19, 2014 12:30 PM

To: MediaRelations
Subject: Net neutrality proposal
I'm a reporter with the legal journal Law360, with two questions today:
1. I wasn't on today's press call, so can you confirm that a "senior agency official" said the FCC wouldn't be
attempting to reclassify the ISPs as Title II telecoms for the time being? I'm happy to attribute to a no-name
official, I just want to be accurate.
2. Can I be added to any blast list regarding media calls, alerts, etc? I've recently taken over the communications
beat here at Law360.
Appreciate the help,
Bill Donahue
Senior Reporter
Law360
Portfolio Media, Inc.
Publisher of the Law360 Newswire
860 Broadway, 6th floor
New York, New York 10003
Direct 646.783.7153
Editorial 646.783.7100 ext 3
Fax 646.783.7162
bill.donahue@law360.com
www.law360.com
From:
Sent:
To:
Subject:
Neil Grace
Tuesday, April 22, 2014 2:20 PM .
Shannon Gilson; Mark Wigfield; Tamara Smith
FW: Hearing this form inside and outside the FCC...
Neil Derek Grace

Senior Communications Advisor
(o) 202-418-0506 FOIA Exemption 6
neil.grace@fcc.go
From: Buskirk, Howard [mailto:hbuskirk@warren-news.com]

To: Neil Grace
Cc: Mark Wigfield
Subject: Hearing this form inside and outside the FCC ...
FCC Chairman Tom Wheeler appears to be considering adding net neutrality to the agenda for the May 15 FCC meeting,
creating what could be truly epic open meeting, industry and FCC officials told us. The FCC is already poised to vote then
on service rules for the incentive auction as well as revised spectrum aggregation rules (CD April 21 p1 ). The next steps
on net neutrality for the FCC are likely an NPRM on revised rules, consistent with U.S. Court of Appeals for the D.C.
Circuit's Jan. 14 decision in Verizon v. FCC, and possibly an NOI on speeding deployment of municipal broadband.
Howard Buskirk
Executive Senior Editor
Communications Daily
From:
Sent:
To:
Cc:
Subject:
Shannon Gilson
Wednesday, February 05, 2014 2:08 PM
Jonathan Sallet; Ruth Milkman; Gigi Sohn
Mark Wigfield; Neil Grace
Fw: net neutrality violation question
f;01A Exemption 5
-<,"
From: Wyatt, Ed [mailto:wyatt@nvtimes.com]
Sent: Wednesday, February 05, 2014 02:02PM

To: Shannon Gilson
Subject: net neutrality violation question
Shannon -- this blog today reported evidence that Verizon is slowing down ISP service to certain cloud
providers. We are working to confirm; iftrue this would seem to be a blatant violation of what Verizon pledged.
Need to ask if FCC has received any complaints about this, or is aware of such actions? Will speak to anyone on
any basis we can work out. Ed.
Edward Wyatt
The New York Times
Washington Bureau
202-862-0445
vvyatt@nytimes.com
From:
Sent:
To:
Cc:
Subject:
Sharon Hurd
Wednesday, February 191 2014 11:31 AM
Meribeth McCarrick
FW: net neutrality
-----0 rigi naI Message----From: Meghashyam Mali [mailto:mmali@washingtonexaminer.com]

Sent: Wednesday/ February 19, 2014 11:30 AM
To: MediaRelations
Subject: net neutrality
Could you please add me to your email list?

Also, can someone confirm WSJ report on new net neutrality rules.
Meghashyam Mali
Assistant Managing Editor
The Washington Examiner
Twitter: @malimeg
Office hone: 202.459.4952
From:
Sent:
To:
Cc:
Subject:
Buskirk, Howard <hbuskirk@warren-news.com>

Tuesday, April 22, 2014 2:19 PM
Neil Grace
Mark Wigfield
Hearing this form inside and outside the FCC...
FCC Chairman Tom Wheeler appears to be considering adding net neutrality to the agenda for the May 15 FCC meeting,
creating what could be truly epic open meeting, industry and FCC officials told us. The FCC is already poised to vote then
on service rules for the incentive auction as well as revised spectrum aggregation rules (CD April 21 p1 ). The next steps
on net neutrality for the FCC are likely an NPRM on revised rules, consistent with U.S. Court of Appeals for the D.C.
Circuit's Jan. 14 decision in Verizon v. FCC, and possibly an NOI on speeding deployment of municipal broadband.
Howard Buskirk
Executive Senior Editor
From:
Sent:
To:
Subject:
Josh Long <JLong@vpico.com>.

Mark Wigfield
Net Neutrality Wednesday April 23
Hi Mark:
I am writing an article about Net Neutrality and Netflix's argument that FCC should reject Comcast/TWC merger.
http ://blog.netf1ix.com/20 14/03/internet-tolls-and-case-for-strong-net.html

On Wednesday, can you send me any background materials (or call me) on FCC's plans for adoption of new net
neutrality rules following the appeals court ruling earlier this year?
Thxs
Josh
Josh Long Chief legal Correspondent

VIRGO
Channel Partners Magazine

Billing & 055 World
3300 N. Central Ave. Ste. 300 Phoenix, AZ
jlong@vpico.com
0: 480.990.1101 Ext. 1104
..
RG0
ltJioiSht, An4tl)t1h, A(ti<ttt
Learn about VIRGO's innovative programs at VIRGO Marketing Services.

This electronic mail message and any attachment is confidential and may contam privileged information. This message is intended only for tile use of tile individual
or individuals named aiJove. If you {the reader) are not the intended recipient or the employee or agent responsible to deliver it to the intended recipient. you are
rrereby no!iilecl that you may not use, copy or disclose to anyone the message or any information contained (including file attachments) in the message. If you
lwve receivetl this message in error. please advise the sender by reply email and delete ttlis message from your system. Please note that any views or opinions
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Vlf"GO, 3300 N Central Avenue, Suite 300, Phoenix. AZ 85012, www.vpico.com
Please consider the environment before printing this E-mail.
From:
Sent:
To:
Subject:
Neil Grace
Shannon Gilson; Sara Morris; Mark Wigfield; Gigi Sohn; Jonathan Sallet
NJ: net neutrality story
Neil Derek Grace

(o) 202-418-0506
From: Brendan Sasso [mailto:bsasso@nationaljournal.com]
Sent: Tuesday, February 04, 2014 2:17PM

To: Neil Grace
Subject: net neutrality story
Hey Neil,
Do you have a minute to talk? My editors want me to write a story today (possibly for the magazine) about net
neutrality. I just have a couple quick questions. Thanks!
Brendan Sasso
Technology Reporter
National Joumal
(202) 266-7685
From:
Sent:
To:
Subject:
Nagesh, Gautham <Gautham.Nagesh@wsj.com>

Mark Wigfield
Net neutrality
Hi Mark/
I hear the net neutrality announcement is coming tomorrow on an enforcement framework under the Commission's
Section 706 authority. I'm trying to confirm the details and get a couple questions answered. I also understand the
Commission will not be closing the Ttl 2 d k t I'll b
I t rking on this story1 so please contact me when you
have a chance on my home phone FOIA Exemption 6
Thanks and have a good night.
Best1
Gautham
Subject:
location:
OI Call--House Energy and Commerce Committee Democratic Staff

TBD
Start:
End:
Show Time As:
Wed 4/23/2014 4:00 PM

Wed 4/23/2014 4:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Daniel Alvarez; Matthew
DelNero; Sara Morris
Subject:
Location:
OI Call--House Energy and Commerce Committee Republican Staff

TBD
Start:
End:
Show Time As:
Wed 4/23/2014 3:30 PM

Wed 4/23/2014 4:00 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
Subject:
Location:
OI Call--Rep. Pelosi staff

TBD
Start:
End:
Show Time As:
Thu 4/24/2014 12:30 PM

Thu 4/24/2014 1:00 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Matthew DelNero; Daniel
Alvarez; Sara Morris
Subject:
Location:
OI Call--Sen. Markey's staff

TBD
Start:
End:
Show Time As:
Thu 4/24/2014 9:30 AM

Thu 4/24/2014 10:00 AM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
DelNero; Sara Morris; OLA Shared Calendar
Subject:
Location:
OI Call--Sen. Markey's staff

TBD
Start:
End:
Show Time As:
Thu 4/24/2014 9:30 AM

Thu 4/24/2014 10:00 AM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
DelNero; Sara Morris; OLA Shared Calendar
Subject:
location:
OI Call--Senate Commerce Committee Democratic Staff

TBD
Start:
End:
Show Time As:
Wed 4/23/2014 4:30 PM

Wed 4/23/2014 5:00 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
Subject:
location:
OI Call--Senate Commerce Committee Republican staff

TBD
Start:
End:
Show Time As:
Wed 4/23/2014 3:00 PM

Wed 4/23/2014 3:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Matthew DelNero; Daniel
Alvarez; Sara Morris
From:
Sent:
To:
Cc:
Subject:
Peter Trachtenberg
Monday, March 24, 2014 11:03 AM
Jennifer Salhus
Nese Guendelsberger
new OI filings
FOIA Exemption 5
William Rinehart
Vonage Holdings Corp.
Voices for Internet Freedom
Verizon and Verizon Wireless
Public Knowledge and Common Cause
Parris
Open Technology Institute at New
America Foundation
Future of Music Coalition
Full Service Network LP
Free Press
Curtis J Neeley Jr
Computer & Communications Industry
Association (CCIA)
CompTIA
CTIA-The Wireless Association
Alissa Cooper
NASUCA
Institute for Local Self-Reliance
Consumer Electronics Association
AT&T Services, Inc.
ADTRAN, Inc.
Telecommunications Industry
Association
(11 pages)
(9 pages)
Letter (2 pages)
(14 pages)
(42 pages)
(3 pages)
(13 pages)
Future of Music
Qages)
Comments 2014 (7
_
Free Press Comments {8 pages)
3 21 2014 comment {5 pages)
(9 pages}
_@J?_ages)
CTIA Comments to FCC Open Internet PN 3 21 2014 (10
(208 pages)
NASUCA Comments IMO DC Circuit Court of Appeals
Decision in Verizon v FCC {55 pages)
(16 pages)
Comments on Open Internet Proceedings
(7 pages)
(34 pages}
Comments of ADTRAN (16 pages)
(7 pages}
One page withheld pursuant to FOIA Exemption 5
Neil Derek Grace

(o) 202-418-0506 (m) 202-413-4959
neil.grace@fcc.gov
From: Kate Tummarello [mailto:katet@thehill.com]
Sent: Tuesday, May 13, 2014 9:59 AM

To: Neil Grace
Subject: Response to Pai's office on NN?
Hey Neil- Pai's office is saying the Republicans are being kept in the dark on the Chairman's newest proposal.
Does his office have any response?
Thanks,
Kate
Kate Tummarello
Staff Writer
katet@thehill.com
o: 202.628.8515
c: 516.456.4333
Mark Wigfield
. Thursday, May 15, 201412:16 PM
Stephanie Weiner, Matthew DelNero; Shannon Gilson; Neil Grace
RE: FCC Launches Broad Rufemaking to Protect and Promote the Open Internet
From:
Sent:
To:
Subject:
Follow up
Completed
Follow Up Flag:
Flag Status:
--------
From: Jon Brodkin [mailto:jon.brodkin@arstechnica.com]

To: Mark Wigfield
Subject: Re: FCC Launches Broad Rulemaking to Protect and Promote the Open Internet
when it says "exclusive contracts that prioritize service to broadband affiliates are unlawful," does that
mean these are allowed as long as they're offered to anyone on commercially reasonable terms?
Jon Brodkin
Senior IT Reporter
Ars Technica
Ars Orbiting HQ
----------------------------
From: Mark Wigfield <Mark.Wigfield@fcc.gov>

Reply-To: Mark Wigfield <Mark.Wigfield@fcc.gov>
Date: Thursday, May 15, 2014 at 12:04 PM
To: press <press@info.fcc.gov>
Subject: FCC Launches Broad Rulemaking to Protect and Promote the Open Internet
Press release and fact sheet below
FOR IMMEDIATE RELEASE:

May 15,2014
NEWS MEDIA CONTACT:

Mark Wigfield, 202-418-0253
E-mail: mark. wigfield@fcc.gov
FCC LAUNCHES BROAD RULEMAKING ON HOW BEST TO PROTECT AND PROMOTE THE OPEN
INTERNET
.
Seeks Public Input over the Next Four Months to Find Most Viable Approach
Washington, D.C. -The Federal Communications Commission today launched a rulemakmg seeking public comment on
how best to protect and promote an open Internet. The Notice of Proposed Rulemaking adopted today poses a broad
1
range of questions to elicit the broadest range of input from everyone impacted by the Internet, from consumers and small
businesses to providers and start-ups.
The Internet is America's most important platfonn for economic growth, innovation, competition, free expression, and
broadband investment and deployment. The Internet has become an essential tool for Americans and for the growth of
American businesses. That's because the Internet has been open to new content, new products and new services, enabling
consumers to choose whatever legal content, services and applications they desire.
The FCC has previouslyconcluded that broadband providers have the incentive and ability to act in ways that threaten
Internet openness. But today, there are no rules that stop broadband providers from trying to limit Internet
openness. That is why the Notice adopted by the FCC todays starts with a fundamental question: "What is the right public
policy to ensure that the Internet remains open?"
The FCC proposes to rely on a legal blueprint set out by the United States Court of Appeals for the District of Columbia
Circuit in its January decision in Verizon v. FCC, using the FCC's authority to promote broadband deployment to all
Americans under Section 706 of the Telecommunications Act of 1996. At the same time, .the Commission will seriously
consider using its authority under the telecommunications regulation found in Title II of the Communications Act. In
addition, the Notice:
Proposes to retain the definitions and scope of the 2010 rules, which governed broadband Internet access service
providers, but not services like enterprise services, Internet traffic exchange and specialized services.
Proposes to enhance the existing transparency rule, which was upheld by the D.C: Circuit. The proposed
enhancements would provide consumers, edge providers, and the Commission with tailored disclosures, including
infonnation on the nature of congestion that impacts consumers' use of online services and timely notice of new
practices.
As part of the revived "no-blocking" rule, proposes ensuring that all who use the Internet can enjoy robust, fast
and dynamic Internet access.
Tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate should be
considered illegal until proven otherwise.
Asks how to devise a rigorous, multi-factor "screen" to analyze whether any conduct hurts consumers,
competition, free expression and civic engagement, and other criteria under a legal standard tenned "commercial
reasonableness."
Asks a series of detailed questions about what legal authority provides the most effective means of keeping the
Internet open: Section 706 or Title II.
Proposes a multi-faceted process to promptly resolve and head off disputes, including an ombudsperson to act as a
watchdog on behalf of consumers and start-ups and small businesses.
Action by the Commission May 15,2014, by Notice of Proposed Rulemaking (FCC 14-61.). Chairman Wheeler and
Commissioner Clyburn with Commissioner Rosenworcel concurring and Commissioners Pai and O'Rielly
dissenting. Chairman Wheeler, Commissioners Clyburn, Rosenworcel, Pai and O'Rielly issuing statements.
-FCC-
FACT SHEET: Protecting and Promoting the Open Internet

May 15,2014
The Internet is a vital platfonn for innovation, economic growth and free expression in America. And yet, despite two
prior FCC attempts,there are no rules on the books to prevent broadband providers from limiting Internet openness by
blocking content or discriminating against consumers and entrepreneurs online. The "Protecting and Promoting the Open
Internet" Notice of Proposed Rulemaking (NPRM) begins the process of closing that gap, which was created in January
2014 when the D.C. Circuit struck down key FCC Open Internet rules.
This Notice seeks public comment on the benefits of applying Section 706 of the Telecommunications Act of 1996 and
Title II of the Communications Act, including the benefits of one approach over the other, to ensure the Internet remains
2
an open platform for innovation and expression. While the Notice reflects a tentativeconclusion that Section 706 presents
the quickest and most resilient path fmward per the court's guidance, it also makes clear that Title II remains a viable
alternative and asks specifically which approach is better. In addition, the proposal asks whether paid prioritization
arrangements, or "fast lanes," can be banned outright.
We Are Listening: An Extended Four-Month Public Comment Period is Open

Since February, tens of thousands of Americans have offered their views to the Commission on how to protect an Open
Internet. The proposal reflects the substantial public input we have received. The Commission wants to continue to hear
from Americans across the country throughout this process. An extended four-month public comment period on the
Commission's proposal will be opened on May 15-60 days (until July 15) to submit initfal comments and another 57
days (until September 10) for reply comments.
The NPRM seeks comment on a number of questions designed to:
Develop the Strongest Legal Framework for Enforceable Rules of the Road
Reflects the principles that Chairman Wheeler outlined in February, including using the Section 706 blueprint for
restoring the Open Internet rules offered by the D.C. Circuit in its decision in Verizon v. FCC, which relies on the
FCC's legal authority under Section 706 of the Telecommunications Act of 1996. At the same time, the
Commission will seriously consider the use of Title II of the Communications Act as the basis for legal authority.
Seeks comment on the benefits of both Section 706 and Title II, including the benefits of one approach over the
other to ensure the Internet remains an open platform for innovation and expression.
Explores other available sources oflegal authority, including also Title III for wireless services. The Commission
seeks comment on the best ways to define, prevent, expose and punish the practices that threaten an Open
Internet.
Ensure choices for consumers and opportunity for innovators

Proposes a requirement that all users must have access to fast and robust service: Broadband consumers must
have access to the content, services and applications they desire. Innovators and edge providers must have access
to end-users so they can offer new products and services.
Considers ensuring that these standards of service evolve to keep pace with of
Prevent practices that can threaten the Open Internet
Asks if paid prioritization should be banned outright.

Promises clear rules of the road and aggressive enforcement to prevent unfair treatment of consumers, edge
providers and innovators.
Includes a rebuttable presumption* that exclusive contracts that prioritize service to broadband affiliates are
unlawful.
(*Rebuttable presumption is a presumption that is taken to be true unless someone comes forward to contest it and proves
otherwise)
Expand transparency
Enhance the transparency rules to provide increased and specific information about broadband providers'
practices for edge providers, consumers.
Asks whether broadband providers should be required to disclose specific network practices, performance
characteristics (e.g., effective upload and download speeds, latency and packet loss) and/or terms and conditions
of service to end users (e.g., data caps).
Tentatively concludes that broadband providers should disclose "meaningful information" about the service,
including (I) tailored disclosures to end users, (2) congestion that may adversely impact the experience of end
3
users, including at interconnection points, and (3) infonnation about new practices, like any paid prioritization, to
the extent that it is otherwise permitted.
Protect consumers, innovators and startups through new rules and effective enforcement
Proposes the creation of an ombudsperson with significant enforcement authority to serve as a watchdog and
advocate for start-ups, small businesses and consumers.
Seeks comment on how to ensure that all parties, and especially small businesses and start-ups, have effective
access to the Commission's dispute resolution and enforcement processes.
Considers allowing anonymous reporting of violations to alleviate fears by start-ups of retribution from
broadband providers.
Consider the Impact on the Digital Divide: Ensuring access for all communities
Considers the impact of the proposals on groups who disproportionately use mobile broadband service.
Asks whether any parts of the nation are being left behind in the deployment of new broadband networks,
including rural America and parts of urban America.
Link to Chainnan Wheeler's February Open Internet framework: http://www.fcc.gov/document/statement-fcc-chainnantom-wheeler-fccs-open-internet-rules

Conunent on the Open Internet proposals: http://www.fcc.g?v/comments
You have received this release from the FCC Office of Media Relations.
To view all of the latest FCC headlines go to the http://www.fcc.gov.
If you wish to stop receiving releases send a blank email to leave-53734080259.22flf714fb6206382fl27c3b9896c7aa@info.fcc.gov
management@ssrn.com
Sunday, April.27, 2014 5:59 PM
Jonathan Levy
2014 TPRC Conference- Final review has been submitted
From:
Sent:
To:
Subject:
Dear jonathan levy,

jonathan levy has submitted their final review of 2417933 The Proof of the Pudding is in the Eating: Moving Away from
Ideology, Putting Net Neutrality in Practice.
This review is now available for you to read.
---------------REVIEWER ANSWERS AND COMMENTS-------------- Acceptance Recommendation:

FOIA Exemption 6
. . t.. .. 1
FOIA Exemption 6
...
Acceptance Recommendation:
Relevance to TPRC Audience:

High
N
It fA
FOIA Exemption 6
d/
It
Strengths:
Weaknesses:
Comments to Coordinator:
Comments to Author:
Submission Area Coordinator Comments:
Thank you.
SSRN Management Team
From:
Sent:
To:
Subject:
Carleen Maitland <cmaitland@ist.psu.edu>

Jonathan Levy
Re: Review Assignments
Don't do too much in SSRN because if you have those permissions you might be able to see authors. Let me check with
Addie.
-em
On Apr 8, 2014, at 11:43 AM, "Jonathan Levy" <Jonathan.Levy@fcc.gov> wrote:
Hi Carleen;
Thanks for getting back to me. This is a bit disappointing but I don't know what can be done. I just went in
and accepted all 25 of my assigned papers. I noticed one minor oddity. SSRN said that
<image002.png>jonathan levy is logged in as Program Committee Chair

I just signed in as myself. I doubt that this matters for anything but wanted to let you know just in case.
Jonathan
From: Carleen Maitland [mailto:cmaitland@ist.psu.edu]
Sent: Monday, April 07, 2014 10:52 PM

To: Jonathan Levy
Subject: Re: Review Assignments

Jonathan,
I was very surprised that there were very few- only one that I can recall. There were, as usual, many on
spectrum policy and unsurprisingly a large number on net neutrality.
Carleen
On Apr 7, 2014, at 3:13 PM, "Jonathan Levy" <Jonathan.Levy@fcc.gov> wrote:
HI Carleen:
I will be happy to review the assigned papers but I am curious as to whether we got ANY
papers on media policy. This is my primary specialty/interest and I indicated it as one of
my priorities when signing up. Did we just not get any papers at all in this area?
Best,
Jonathan
Jonathan Levy
Deputy Chief Economist
(202) 418-2048
From:
Sent:
To:
Subject:
management@ssrn.com
Jonathan Levy
2014 TPRC Conference - Notice of Review
Dear TPRC 2014 PC Member,

You have been assigned to review Net Neutrality: Discrimination, Competition, and Innovation in the US and UK.
We request you to kindly confirm your acceptance of this assignment (see below), being free from any conflicts of
interest, by Friday, April 11th, and then complete your review by Monday, April 28th.
The Guidelines for Reviewers are also included below.
Thank you for contributing your time as a Reviewer.
TPRC Conference Submitter

info@tprc.org
Carleen Maitland
cmaitland@ist.psu.edu
Guidelines for Reviewers

2014 TPRC Conference is working with Social Science Research Network (SSRN) to provide an online conference
submission and review system. If you need assistance at any point during the review process: please email Addie
Jackson at Addie_Jackson@ssrn.com, SSRN at usersupport@ssrn.com or calf (877) SSRNHelp (877-777-6435).
Please note, the Program Committee has agreed to a blind review system. As such we ask that you refrain from seeking
authors' identities either through the SSRN system or other means.
To View Paper
Start by going to www.ssrn.com. This is the SSRN login page where you will create your SSRN User ID and Password. If
you already have a SSRN User ID and Password, skip the remainder of this paragraph. Enter the email address where
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your User ID and Password will be emailed to you within a few minutes. Retrieve your Password from the email and
enter it in the Password field to login.
After logging in, there is a link on the left side of the page titled 'Referee List'. Clicking on this link will list allofthe
papers you have been requested to review.
Please click the Yes button under the "Will you review/discuss this paper?" column to continue with the review process.
This will move the paper to the Papers Accepted section of your page so that you can complete the review form.
Click on the View button to open the paper in Adobe Acrobat. If you are having problems viewing the PDF file, you
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After you have read the paper, you should complete the online review form.
To Review
1
Login to SSRN at www.ssrn.com and click on the Referee List link. Clicking on this link will list all of the papers you have
been requested to review.
If you have not previously agreed to review the paper, please click the Yes button under the "Will you review/discuss
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Click on the Review link, next to the View button. Please read the instructions and click on the appropriate buttons to
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SSRN has a 4-point scale (Accept- 4, Probably Accept- 3, Probably Reject- 2, Reject -1) for scoring abstracts. You must
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Score each abstract and click 'SAVE REVIEW'. DO NOT click the 'SUBMIT' button until you are certain you have adhered
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In addition to the recommendations on acceptance, you have the option to answer two multiple-choice questions,
'Relevance to TPRC audience' and 'Novelty of approach and/or results' (High, Above Average, Average, Below Average,
Low). These scores provide additional information to help determine the outcome for papers that are not unanimously
clear accepts. Reviewers can also submit optional comments on 'Strengths', 'Weaknesses', 'Comments to PC Chair' and
'Comments to author'. There is no limit to the number of comments a reviewer can make. Useful feedback would
include quality of research, clarity of objectives/methods/data, validity of methods, explanation of why research is
novel, relevance/timeliness for presentation at TPRC, organization, grammar, comprehensibility. For strengths,
weaknesses, and comments to the PC Chair, why the abstract is a strong 'accept' or 'reject' candidate is helpful, but we
ask you refrain from making comments indicating your final recommendation to the author.
Two potentially helpful comments to the PC Chair (only)are the reviewer's experience with the author in terms of the
likelihood of actually getting the paper done in time for the conference and whether the reviewer believes the abstract
could be presented as a poster.
Because of the curve, you should wait to review all abstracts, 'SAVE' each of the reviews, and then determine whether
you meet the curve BEFORE you click the 'SUBMIT' button on any review.
After you have completed the form for each abstract that has been assigned to you, review the 'Paper Review List' with
all the abstracts you have accepted to review and their scores so as to ensure you have adhered to the curve: 50% reject
and the remainder divided evenly among the three other categories (Accept, Probably Accept, and Probably Reject).
Once you have confirmed the curve has been met, click the 'Review' link to open each abstract and select 'SUBMIT FINAL
REVIEW' for all of them. This will complete the process and your final recommendation will appear next to the Review
link.
When your review has been received, a confirmation email will be sent to you.
From:
Sent:
To:
Subject:
management@ssrn.com
Jonathan Levy
2014 TPRC Conference - Notice of Review
Dear TPRC 2014 PC Member,

You have been assigned to review The Proof of the Pudding is in the Eating: Moving Away from Ideology, Putting Net
Neutrality in Practice.
We request you to kindly confirm your acceptance of this assignment (see below), being free from any conflicts of
interest, by Friday, April 11th, and then complete your review by Monday, April 28th.
The Guidelines for Reviewers are also included below.
Thank you for contributing your time as a Reviewer.
TPRC Conference Submitter

info@tprc.org
Carleen Maitland
cmaitland@ist.psu.edu
Guidelines for Reviewers

2014 TPRC Conference is working with Social Science Research Network (SSRN) to provide an online conference
submission and review system. If you need assistance at any point during the review process: please email Addie
Jackson at Addie_Jackson@ssrn.com, SSRN at usersupport@ssrn.com or call (877) SSRNHelp (877-777-6435).
Please note, the Program Committee has agreed to a blind review system. As such we ask that you refrain from seeking
authors' identities either through the SSRN system or other means.
To View Paper
Start by going to www.ssrn.com. This is the SSRN login page where you will create your SSRN User ID and Password. If
you already have a SSRN User ID and Password, skip the remainder ofthis paragraph. Enter the email address where
you received this email in the Your Email Address field and click Submit. Click on your name on the following page and
your User ID and Password will be em ailed to you within a few minutes. Retrieve your Password from the email and
enter it in the Password field to login.
After logging in, there is a link on the left side of the page titled 'Referee List'. Clicking on this link will list all of the
papers you have been requested to review.
Please click the Yes button under the "Will you review/discuss this paper?" column to continue with the review process.
This will move the paper to the Papers Accepted section of your page so that you can complete the review form.
Click on the View button to open the paper in Adobe Acrobat. If you are having problems viewing the PDF file, you
should upgrade to the latest version at http://www.adobe.com/reader. You can print the paper and read it offline.
After you have read the paper, you should complete the online review form.
To Review
Login to SSRN at www.ssrn.com and click on the Referee List link. Clicking on this link will list all of the papers you have
been requested to review.
If you have not previously agreed to review the paper, please click the Yes button under the "Will you review/discuss
this paper?" column to continue with the review process. This will move the paper to the Papers Accepted section of
your page so that you can complete the review form.
Click on the Review link, next to the View button. Please read the instructions and click on the appropriate buttons to
record your opinions about the paper.
SSRN has a 4-point scale (Accept- 4, Probably Accept- 3, Probably Reject- 2, Reject -1) for scoring abstracts. You must
grade 50% of your abstracts in the 'reject' category. Remaining abstracts should be scored so they distribute evenly
among the other three grades, at the reviewer's discretion.
Score each abstract and click 'SAVE REVIEW'. DO NOT click the 'SUBMIT' button until you are certain you have adhered
to the curve.
In addition to the recommendations on acceptance, you have the option to answer two multiple-choice questions,
'Relevance to TPRC audience' and 'Novelty of approach and/or results' (High, Above Average, Average, Below Average,
Low). These scores provide additional information to help determine the outcome for papers that are not unanimously
clear accepts. Reviewers can also submit optional comments on 'Strengths', 'Weaknesses', 'Comments to PC Chair' and
'Comments to author'. There is no limit to the number of comments a reviewer can make. Useful feedback would
include quality of research, clarity of objectives/methods/data, validity of methods, explanation of why research is
novel, relevance/timeliness for presentation at TPRC, organization, grammar, comprehensibility. For strengths,
weaknesses, and comments to the PC Chair, why the abstract is a strong 'accept' or 'reject' candidate is helpful, but we
ask you refrain from making comments indicating your final recommendation to the author.
Two potentially helpful comments to the PC Chair (only)are the reviewer's experience with the author in terms of the
likelihood of actually getting the paper done in time for the conference and whether the reviewer believes the abstract
could be presented as a poster.
Because of the curve, you should wait to review allabstracts, 'SAVE' each of the reviews, and then determine whether
you meet the curve BEFORE you click the 'SUBMIT' button on any review.
After you have completed the form for each abstract that has been assigned to you, review the 'Paper Review List' with
all the abstracts you have accepted to review and their scores so as to ensure you have adhered to the curve: 50% reject
and the remainder divided evenly among the three other categories (Accept, Probably Accept, and Probably Reject).
Once you have confirmed the curve has been met, click the 'Review' link to open each abstract and select 'SUBMIT FINAL
REVIEW' for all of them. This will complete the process and your final recommendation will appear next to the Review
link.
When your review has been received, a confirmation email will be sent to you.
management@ssrn.com
Sunday, April 27, 2014 5:59 PM
Jonathan Levy
2014 TPRC Conference- Final review has been submitted
From:
Sent:
To:
Subject:
Dear jonathan levy,

jonathan levy has submitted their final review of 2418479 Net Neutrality: Discrimination, Competition, and Innovation in
the US and UK.
This review is now available for you to read.
FOIA Exemption 6
ERS AND COMMENTS-------------- Acceptance Recommendation:
Overall Review Score:
Acceptance Recommendation:
Relevance to TPRC Audience:

FOIA Exemption 6
Novelty of Approach and/or Result:
FOIA Exemption 6
Strengths:
Weaknesses:
Comments to Coordinator:
Comments to Author:
Submission Area Coordinator Comments:
Thank you.
SSRN Management Team
Jonathan Levy
'VIadica Tintor'
RE: Greetings
From:
Sent:
To:
Subject:
Greetings Vladica:
I hope to return to Beograd someday but I am not sure when it wlll be possible. Our biggest challenges now are, in no
particular order: completing our incentive auction design (to recover additional spectrum from the television broadcasting
service and reallocate to wireless broadband), figuring out what network neutrality regulations are appropriate and within
our authority, reforming our universal service policies to make them more efficient and focused on broadband, and
managing the transition IP for what is left of our circuit switched networks.
My family is indeed well and I hope that the same can be said for yours.
Cordially,
Jonathan
From: Vladica Tintor [mailto:vladica.tintor@ratel.rs]
Sent: Monday, February 10, 2014 8:23 AM

To: Jonathan Levy
Subject: RE: Greetings

Dear Jonathan,
It is a great pleasure to hear from you. I hope that you are doing well. What are the current regulatory challenges in the
USA regarding the telecommunications? We are mostly dealing with the digital transition, digital dividend, interferences
between DVB and LTE systems.
FOIA Exemption 6
If you are planning to visit Belgrade again please let me know.

Best regards,
Vladica Tintor, PhD, MB/\

Deputy Director
.'ib'S. >
.
'"'""'" "'"'""
Republic Agency for Electronic Communications

Visnjiceva 8
11.000 Belgrade
Repubiic ot Serbia
Phone: +38111 202 6801

rvlobi!e: +381 64 640 8505
Fax:
+38111323 2537
www.ratel.rs
1
This email is confidential and is protected by copyright.

please don't print this e-mail unless you really need to.
From: Jonathan Levy [mailto:Jonathan.Levy@fcc.gov]

To: 'vladica.tintor@ratel.rs'
Subject: Greetings
Dear Vladica:
Best regards,
Jonathan
Jonathan Levy
(202) 418-2048
Subject:
location:
Start:
FW: Meeting on behalf of EDUCAUSE re: to discuss the Open Internet rules and
Interconnection and Professional Introductions
5-8516
Show Time As:
Man 5/12/2014 3:30 PM

Man 5/12/2014 4:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
WCBChief
End:
Now meeting
-----Original Appointment----From: WCBChief
To: WCBChief; Alison Neplokh; Carol Simpson; Christopher Killion; Claude Aiken; Henning Schulzrinne; Jennifer Salhus;
Jonathan Chambers; Jonathan Sallet; Julie Veach; Kurt Schroeder; Mark Stone; Matthew DelNero; Nese Guendelsberger;
Peter Trachtenberg; Philip Verveer; Robert Cannon; Roger Sherman; Rosemary McEnery; Stephanie Weiner; Thomas
Spavins; Tim Brennan
Subject: Meeting on behalf of EDUCAUSE re: to discuss the Open Internet rules and Interconnection and Professional
Introductions
When: Monday, May 12, 2014 3:30PM-4:30PM (UTC-05:00) Eastern Time (US & Canada).
Where: 5-6516
From: Robert Cannon

Sent: Wednesday, March 26, 2014 10:29 AM
To: 'Jarret Cummings'; Latoya Toles
Cc: jwindhausen@telepolyconsulting.com;
Subject: RE: EDUCAUSE and Interconnection and Professional Introductions
Excellent. I am forwarding this to Latoya Toles who will help set up an ex parte meeting in which you can share your
views about Open Internet with FCC staff. Look forward to it!
B
From: Jarret Cummings [mailto:jcummings@educause.edu]

Sent: Tuesday, March 25, 2014 4:32 PM
To: Robert Cannon
Cc: jwindhausen@telepolyconsulting.com; josh@ulmanpolicy.com
Hi, Bob -I think it may make sense for us to start with the Open Internet rules and then talk through how the
interconnection issue might come into play in that context. We haven't been thinking of the two together, but it's
starting to seem like others may be, so it's probably worth exploring.
I've copied John Windhausen, who's consulted with us on telecom/broadband issues for a number of years, as well as
Josh Ulman, who serves as our primary consultant on public policy and government relations issues generally. We'd be
happy to schedule a meeting with you and any colleagues you'd like to include; just let us know what scheduling options
you have in mind and we'll look for a match. And we can host the discussion at our office on 18th St, NW, near Farragut
North and Farragut West, or we can come to the FCC, whichever you think would work best.
It may ultimately make sense for us to bring a couple of our local university C!Os into the conversation to get a direct
campus perspective, but we can talk and see if/when that might be helpful. We look forward to hearing from you when
you get the chance.- Jarret
Jarret S. Cummings
Director of External Relations
EDUCAUSE
Uncommon Tt1inking for tlw Common Good
direct 202.331.5372 I main: 202.872.4200 I educause.edu
Not Responsive
From:
Sent:
To:
Cc:
Subject:
Jarret Cummings <jcummings@educause.edu>

Monday, March 31, 2014 4:24PM
Robert Cannon
jwindhausen@telepolyconsulting.com; josh@ ulmanpolicy.com; Latoya Toles
RE: EDUCAUSE and Interconnection and Professional Introductions
Hi, Bob- Yes, Latoya got in touch and I promised her that I'd start organizing dates with my colleagues. But then Josh,
John, and I realized we should probably ask our friends at ALA and ARL to join us as well, I thought I'd better doublecheck with you before I started polling them for scheduling options. I'll start doing that now and get back to Latoya as
promised. Thanks!- Jarret
Jarret S. Cummings
EDUCAUSE
Uncommon Thinking for ttle Common Good
direct: 202.331.5372 I main: 202.872.4200 I educause.edu
From: Robert Cannon [mailto:Robert.Cannon@fcc.gov]
Sent: Monday, March 31, 2014 3:27 PM

To: Jarret Cummings
Cc: jwindhausen@tefepolyconsulting.com; josh@ulmanpolicy.com; Latoya Toles

HiJarret
Did you respond to LaToya Toles? She is coordinating the meeting.
Yes, certainly a meeting with ALA and Association of Research Libraries makes sense.
There is inside the FCC an Open Internet working group that includes Jonathan Sallet (GC), Stephanie Weiner (Deputy
GC), Amb. Phil Verveer (OCH), Jonathan Chambers (Chief, OSP), Tim Brennan (Chief Econ), Henning Schulzrinne (CTO),
Julie Veach (Chief, Wireline Bureau) and many others. It would be with that group that you would be meeting.
B
Sent: Monday, March 31, 2014 10:50 AM

To: Robert Cannon
Cc: jwindhau?en@telepolyconsulting.com; josh@ulmanpolicy.com; Latoya Toles

Hi, Bob- As I talked with my colleagues about scheduling options to propose, it occurred to us that we should probably
have representatives from our partners in this space- the Association of Research Libraries and the American Library
Association- join us. We submitted joint comments with them during the original Open Internet Rules process as well as
following the recent court ruling, and we're in the process of developing a joint net neutrality principles statement to
submit for the current docket (as well as to our respective communities for support).
Would that work for you and your colleagues? Please let me know when you get the chance. Also, if you have a sense
yet for whom else at the FCC might participate in the discussion, please let us know that as well. Thanks!- Jarret
Jarret S. Cummings
EDUCAUSE
Uncommon Thinking for the Common Good
direct: 202.331.53721 main: 202.872.4200 I educause.edu
From: Latoya Toles [mailto:Latoya.Toles@fcc.gov]
Sent: Wednesday, March 26, 2014 1:58 PM

To: Jarret Cummings
Cc: jwindhausen@telepolyconsultinq.com; josh@ulmanpolicy.com
Hi Jarret,
I see your interest in meeting with our staff on Open Internet rules, when would you like to come in to discuss? If
possible, can you please provide dates/ times so I can talk internally to schedule this meeting.
Thanks, LT
LaToya Toles
Staff Assistant
202.418.1353
From: Robert Cannon
Sent: Wednesday, March 26, 2014 10:29 AM

To: 'Jarret Cummings'; Latoya Toles
Cc: jwindhausen@telepolyconsultinq.com; josh@ulmanpolicy.com
Excellent. I am forwarding this to Latoya Toles who will help set up an ex parte meeting in which you can share your
views about Open Internet with FCC staff. Look forward to it!
B
From: Jarret Cummings [mailto:jcummings@..S!QIJ.
Sent: Tuesday, March 25, 2014 4:32PM

To: Robert Cannon
Cc: jwindhausen@telepolyconsulting.com; josh@ulmanpolicy.com
Hi, Bob -I think it may make sense for us to start with the Open Internet rules and then talk through how the
interconnection issue might come into play in that context. We haven't been thinking of the two together, but it's
starting to seem like others may be, so it's probably worth exploring.
I've copied John Windhausen, who's consulted with us on te!ecom/broadband issues for a number of years, as well as
Josh Ulman, who serves as our primary consultant on public policy and government relations issues generally. We'd be
happy to schedule a meeting with you and any colleagues you'd like to include; just let us know what scheduling options
2
you have in mind and we'll look for a match. And we can host the discussion at our office on 18th St, NW, near Farragut
North and Farragut West, or we can come to the FCC, whichever you think would work best.
It may ultimately make sense for us to bring a couple of our local university CIOs into the conversation to get a direct
campus perspective, but we can talk and see if/when that might be helpful. We look forward to hearing from you when
you get the chance.- Jarret
Jarret S. Cummings
EDUCAUSE
From:
Sent:
To:
Cc:
Subject:
Robert Cannon
Monday, April 07, 2014 10:02 AM
Jarret Cummings
Latoya Toles
RE: EDUCAUSE/ALA/ARL meeting scheduling
Please work with Latoya on the schedule. It looks to me that on the 22nd you would have a hard time meeting with
Jonathan Sallet, the General Counsel- and on the 25th you would have a hard time meeting with Jonathan Sallet, or
Henning Schulzrinne the CTO.
It might be useful to move into May in order to actually get on everyone's calendar.
B
From: Jarret Cummings Ucummings@educause.edu]

Sent: Monday, April 07, 2014 9:45AM
To: Robert Cannon
Cc: Latoya Toles
Subject: RE: EDUCAUSE/ALA/ ARL meeting scheduling
Thanks! Yes, I think it cements that we really need to try to make this happen in April if at all possible, which I believe
will help me push some more schedule shuffling with my colleagues. I think my luck may have turned over the weekend
already, though, with some folks warming to one of the options Latoya and I discussed on Friday. I'm going to make a
quick round of confirmations before cashing my lottery ticket on this one, but if I'm right, we may be able to get this
scheduled for the week after next after all.
Jarret S. Cummings
EDUCAUSE
-----Original Message----From: Robert Cannon [mailto:Robert.Cannon@fcc.gov]
Sent: Monday, April 7, 2014 9:37AM
To: Jarret Cummings
Cc: Latoya Toles
Subject: RE: EDUCAUSE/ALA/ARL meeting scheduling
In February the FCC released a press release regarding the Open Internet Remand. The FCC is working on preparing a
response to the appellate court's decision, and input from that release. That most likely would be in the form of a notice
of proposed rulemaking which will come out this spring.
Obviously Educause's input is valuable and welcome. We are at the stage in the process where the FCC is considering
proposals on how to move forward- not at the stage where we are making specific decisions. Of course, as you know, it
is always good to get in early in order to help steer the ship.
I hope that helps provide some clarity. More than that, I think it is your call.
B
Sent: Friday, April 04, 2014 2:27PM
To: Robert Cannon
Cc: Latoya Toles
Subject: EDUCAUSE/ALA/ARL meeting scheduling
Hi, Bob- LaToya was kind enough to spend some quality time with me this afternoon so we could troop through the
scheduling swamp and look for some solid ground.l'm floating a few options with my group to see if some of them can
change their "no" to a "yes," looking at April22 or April25.
In the meantime, I wanted to ask you by what point this meeting needs to happen to effectively inform the FCC process.
If LaToya and I have to talk early May dates, will that work, or does the meeting have to take place by the end of April
for it to matter? Please let me know when you get the chance. Thanks!- Jarret
Jarret S. Cummings
EDUCAUSE
1150 18th Street, NW, Suite 900 Washington, DC 20036
direct: 202.331.5372 I main: 202.872.4200 I educause.edu<http://www.educause.edu/>
Subject:
Location:
Face to Face w/ Kevin Werbach

7 south
Start:
End:
Show Time As:
Thu 3/13/2014 4:00 PM

Thu 3/13/2014 4:45 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Optional Attendees:
Jonathan Sallet
Open Internet Working Group
Henning Schulzrinne; Christopher Killion; Stephanie Weiner; Jonathan Chambers;
Matthew DelNero; Tim Brennan; Rosemary McEnery; Thomas Spavins; Aaron Garza;
Robert Cannon; Roger Sherman; Julie Veach
That works. thanks.

-kOn Feb 25, 2014, at 5:36PM, Sharina Smith <Sharlna.Smi!b_@fcc.gov> wrote:
> 4pm on March 13th works for Jon, please let me know if we can confirm. Thanks
>
>-----Original Message----> From: Kevin Werbach [mailto:werbach@wharton.upenn.edu]
>Sent: Monday, February 24, 2014 11:14 AM
>To: Sharina Smith
>Subject: Re: Catching Up
>
>Actually, Jon called me over the weekend and we were able to talk. So I think we're good for now.
>
.>Among other things, he wanted to schedule some time when I'm in DC on March 13. I have an event in the morning,
but should be free starting at noon and all afternoon. Can you see when he might be available?
>
>Thanks.
>
> -k>
>On Feb 24, 2014, at 10:59 AM, Sharina Smith <Sharina.Smith@fcc.gov>
>wrote:
>
>>Sorry for the back and worth but let's confirm 10am on Wednesday the 26th. Thanks
>>
-----Original Message---- From: Werbach, Kevin [mailto:werbach@wharton.upenn.edul
Sent: Friday, February 21, 2014 6:07PM
To: Sharina Smith

Subject: Re: Catching Up
>>
No, I have meetings 10-11:30 and 12-3. I could probably leave the first meeting early at 11. But I can't miss the
beginning.
>>
If that doesn't work, I'm free Wednesday 9:30-11, or Thursday 9:30-2.
>>
>> -k>>
On Feb 21, 2014, at 5:40 PM, Sharina Smith <Sharina.Smith@fcc.gov> wrote:
>>
>>>Kevin>>>
>Would it be possible to now have this call start at lOam ET?
>>>
>>>-----Original Message----> From: Kevin Werbach [mailto:werbach@wharton.upenn.edu]
>Sent: Thursday, February 20, 2014 12:40 PM
>To: Sharina Smith
>>>
>Yes, that works. I'll be at 215-898-1222, or if he'd prefer, I can call Jon. Thanks.
>>>
>>> -k>>>
>On Feb 20, 2014, at 12:30 PM, Sharina Smith <Sharina.Smith@fcc.gov>
>>>wrote:
>>>
>>The morning ofthe 25th work, can we confirm 9:30amET?
>>>>
>>-----Original Message---->> From: Kevin Werbach [mailto:werbach@wharton.upenn.edJ!l
>>To: Sharina Smith
Subject: Re: Catching Up
>>>>
That's OK-- the Chairman gets priority!
>>>>
Unfortunately Monday I'm booked straight through from 12-7pm. I could do something in the morning, or on
Tuesday I have some time in the late afternoon.
>>>>
>>>> -k>>>>
On Feb 20, 2014, at 12:21 PM, Sharina Smith <Sharina.Smith@fcc.gov>
>>>>wrote:
>>>>
> Hi Kevin>>>>>
>Unfortunately Jon has now been requested at this time by the Chairman. Are you available on Monday the 24th
at 3:30pm ET?
>>>>>
2
>>>We do apologize for any inconvenience

>>>>>
>-----Original Message----> From: Werbach, Kevin [mailto:werbach@wharton.upenn.edu]
>Sent: Wednesday, February 19, 2014 8:59PM
>To: Sharina Smith
>>>>>
>OK, let's do 3:30 then. He can reach me tomorrow at 215-898-1222, or I can call if you give me a number. Thanks.
>>>>>
>>>>> -k>>>>>
>On Feb 19, 2014, at 12:09 PM, Sharina Smith <Sharina.Smith@fcc.gov> wrote:
>>>>>
>> Unfortunately, 4:30pm doesn't work. Let me know if we can confirm 3:30pm ET.
>>>>>>
>>>>Thanks
>>>>>>
>>-----Original Message---- From: Werbach, Kevin [mailto:werbach@whart.Q!1..\oJ_Qenn.edu]
Sent: Tuesday, February 18, 2014 6:24PM
To: Sharina Smith
>>Subject: Re: Catching Up
>>>>>>
>>Correct, we weren't able to talk today. Thanks for following up.
>>>>>>
>>Could he do 4:30 Thursday? If not, let me see if I can move the thing I have at 3:30. I probably can.
>>>>>>
>>>>>> -k>>>>>>
On Feb 18,2014, at 5:50PM, Sharina Smith <Sharina.Smith@fcc.gol,(> wrote:
>>>>>>
>>>>>>> Good afternoon>>>>>>>
>I'm Jon's assistant and I don't believe you and Jon were able to connect today, but if you did please disregard
this email.
>>>>>>>
>I wanted to confirm a time that work for his schedule, are you available for a call Thursday the 20th at 3:30pm?
>>>>>>>
>-----Original Message----> From: Werbach, Kevin [mailto:werbach@wharton.upenn.edu]
>Sent: Tuesday, February 18, 2014 2:09PM
>>>>>To: Jonathan Sallet
> Cc: Sharina Smith
>>>>>>>
>Here now if you're available to talk- 484-222-5138. If something came up, no worries. I'm around until4pm
today, or we could do another time.
>>>>>>>
>>>Thanks.
>>>>>>>
>>>>>>> -k3
>>>>>>>
>>>>>>>
>On Feb 16, 2014, at 9:23AM, Jonathan Sallet <Jonathan.Sallet@fcc.gov> wrote:
>>>>>>>
>> 2pm Tuesday works; where should I call you?
>>>>>>>>
>>-----Original Message---->>>> From: Kevin Werbach [mailto:werbach@wharton.uQenn.edu]
Sent: Saturday, February 15, 2014 9:09PM
>>>>>>To: Jonathan Sallet
>>Subject: Re: Catching Up
>>>>>>>>
On Feb 15, 2014, at 4:07AM, Jonathan Sallet <Jonathan.Sal!et@fcc.gov> wrote:
>Want to talk next week after you get back? I'm around all week. Jon
>>>>>>>>
>>Sounds good. I have some time 2-4pm on Tuesday, or 12-2 Thursday. What works best?
>>>>>>>>
>>>>>>>> -k>>>>>>>>
>>>>>>>>
>>>>>>>
>>>>>>
>>>>>
>>>>
>>>
>>
>
From:
Sent:
To:
Subject:
Henning Schulzrinne
Robert Cannon
RE: Internet Backbones
-----Original Message----From: Robert Cannon

Sent: Friday, February 14, 20141:39 PM
To: Henning Schulzrinne
Subject: FW: Internet Backbones
From: k daffy [kc@caida.org]

To: Robert CannOn
Subject: Re: Internet Backbones
B,
david clark was at the silicon flatirons gig this last weekend and talked w wheeler and others there a bit about this stuff,
and what we're doing in this area, but i agree w you that we should visit.
don't know if you watched nanog this week, matthew gave a lightning (10-min) talk on our recent study of congestion:
http:Uwww .ca ida .o rg/"'m il/nanog-co ngestio n.pdf
and we have a proposal submitted to NSF, which i have shared w Padma Krishnaswamy
<Padma.Krishnaswamv@fcc.gov> after a phone call where she said she was tasked w looking into "interconnection and
CON" stuff. (also shared w her an 1Pv6 deployment modellng proposal since that is also on her study list, fwiw.)
i do not currently have a trip planned to de but we could arrange for this purpose. i think david clark was trying to find a
date where wheeler and other relevant folks would be there too. and david's schedule is hard, so maybe we can't get
everyone there at once.
the papers you mention are not focused on the congestion issues which is what i think you care about now;)
i think you will find the proposal attached juicy reading; it will require more budget than NSF will give us.
really what FCC needs (as i have said for years) is a joint program on scientific measurement of Internet behavior to
support FCC policy development needs.
but it requires the tpye of leadership at both agencies which has not thus far existed ..
1
fi"Onl: Latoya Toles on behalf ofJul'fe Veach

Sent: Wednesday, April 02, 2014 12:23. PM
To: WCBChief; Julie Veach; Jonathan Sallet; Linda Oliver; Stephanie Weiner; William Dever; Matthew Warner; Eric Ralph;
Octavian Carare; James Miller; Padma Krishnaswamy; Mark Walker; Henning Schulzrinne; Tim Brennan; Kathryn OBrien;
Carol Simpson; Matthew DelNero
Subject: RE: Hold for Internet Backbones (CAIDA)
FYI-Conformation email below.
----Original Message--From: Latoya Toles
Sent: Wednesday, March 12, 2014 2:54PM
To: 'David Clark'
Cc: k daffy
Subject: Meeting Confirmation Internet Backbones (CAIDA)
Good Afternoon,
This email is to confirm that you have a meeting scheduled with various staff (listed below) to discuss Internet Backbone
(CAIDA). On Friday, April 4th from 10:00am-11:00am. The meeting will be held in 5-B516 -South Conference Room. When
you arrive, please have security call the main line at 202.418.1500.
WCB Attendees
Julie Veach
Jonathan Sallet
Linda Oliver
Stephanie Weiner
William Dever
Matthew Warner
Eric Ralph
Octavian Carare
James Miller
Padma Krishnaswamy
Mark Walker
Henning Schulzrinne
Tim Brennan
Kathryn Obrien
Matthew DelNero
1
Thanks,
LaToya Toles
Staff Assistant
202.418.1353
-----Original Appointment----From: WCBChief

To: WCBChief; Julie Veach; Jonathan Sallet; Linda Oliver; Stephanie Weiner; William Dever; Matthew Warner; Eric Ralph;
Octavian Carare; James Miller; Padma Krishnaswamy; Mark Walker; Henning Schulzrinne; Tim Brennan; Kathryn OBrien;
Carol Simpson; Matthew DelNero
Subject: Hold for Internet Backbones (CAIDA)
When: Friday, April 04, 2014 10:00 AM-11:00 AM (UTC-05:00) Eastern Time (US & Canada).
Where: 5-8516
-----Original Message----From: Robert Cannon

To: 'k daffy'; Latoya Toles
Cc: David Clark
Subject: RE: Internet Backbones {CAIDA)
1am going to hand you off to Latoya Toles who apparently is in charge of scheduling these types of meetings.
Latoya, I would invite from the FCC
William Dever
Matthew Warner
Eric Ralph
Octavian Carare <Octavian.Carare@fcc.goV>; James Miller <James.Miller@fcc.goV>; Padma Krishnaswamy
<Padma.Krishnaswamy@fcc.gov>; Walter Johnston <Walter.Johnston@fcc.ggv>; Henning Schulzrinne
<Henning.Schufzrinne@fcc.gov>; Tim Brennan <Tim.Brennan@fcc.gov>; Kathryn OBrien <Kathryn.OBrien@fcc.gov> Carol
Simpson; Matthew DelNero <Matthew.DeiNero@fcc.gov>
And myself.
Thanks
-----Original Message----From: k daffy (mailto:kc@caida.org]
To: Robert Cannon
Cc: David Clark
Subject: Re: Internet Backbones {CAIDA)
i haven't bought my tix yet because

flights coming home fri nite are insanely expensive. but i hope to get a ticket leaving Spm friday which probalby means i have
to leave fcc 3pm. so i guess that leaves the morning. i was also supposed to meet with nsf that morning, i could do it early or
try to fly in the day before.
so i guess late morning is best, and lunch.
yes, we meet with verveer/wheeler at 1pm.

i don't know the exact agenda for that..
thanks ..
k
On Man, Mar 10, 2014 at 03:21:19PM +0000, Robert Cannon wrote:

Ambassador Verveer indicates that we should go forward and plan!
Friday April 4th? And you are meeting with Amb. Verveer at 1 pm?
Why don't you tell me what windows are open for you, and then I will attempt to coordinate with staff's calendars and find
the best spot?
Thanks!
B
-----Original Message---From: k daffy [mailto:kc@caida.org]

Sent: Thursday, March 06, 2014 2:25 PM
To: Robert Cannon
Cc: David Clark
Subject: Re: Internet Backbones
It looks like David and l will be meeting with Tom Wheeler on 4 April at 13:00. Philip Verveer also said:
From: Philip Verveer <Philip.Verveer@fcc.gov>
In addition to the meeting with Tom, we would like to have an
additional meeting or meetings for the benefit of the FCC staff
during your visit to Washington. we; of course, will work around
your schedule for that.
so I'm not sure what that means, but
maybe you wanted to be involved in
planning that day. feel free to
contact Philip on this, i'm not
sure what is best use of our time
but i will allocate the day to FCC.
yes i've met gigi, she is wonderful.;)
hope to see you then,
k
Subject:
Location:
Prof. Rob Frieden on Internet Backbones (Netflix, Level 3, Cogent, Comcast, Verizon .... )
6 South
Start:
End:
Show Time As:
Wed 3/12/2014 2:30 PM

Wed 3/12/2014 3:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Robert Cannon
Henning Schulzrinne; Tim Brennan; Jonathan Levy; Thomas Spavins; Matthew Warner;
William Dever; Eric Ralph; Octavian Carare; Stephanie Weiner; Hillary Burchuk; Walter
Johnston; James Miller; Padma Krishnaswamy; Richard Hovey; OSP DL
Gary Epstein; Sherille Ismail; Bill Cline; Chuck Needy; Alison Neplokh; Eric Spry; Alec
MacDonell; Nicholas Alexander
Optional Attendees:
Open Invite - Feel Free to Forward
Prof. Rob Frieden is Professor and Pioneers Chair in Telecommunication and Affiliate
Law Faculty at Penn State Law. He has written extensively on developments in
communications and the Internet. His blog (which is blocked by FCC lTC policy for some
reason) is Telefrieden. He will be joining us to share his thoughts on recent developments
in Internet interconnection and backbones, including the Netflix, Cogent, Level3, Comcast,
Verizon discussions)
Some of his papers include:
Frieden, Rob, Rationales for and Against FCC Involvement in Resolving Internet Service Provider
Interconnection Disputes (September 24, 2011). TPRC 2011. Available at SSRN:
http://ssrn.com/abstract=1985741
Frieden, Rob, Why the FCC's Proposed Openness Principles Cannof and Should Not Apply to Internet
Application and Content Providers (January 1, 2010). Available at SSRN: http:l/ssrn.com/abstract-1534928
or http://dx.doi.org/1 0.2139/ssrn.1534928
Frieden, Rob, The Rise of Quasi-Common Carriers and Conduit Convergence (2013). Available at SSRN:
http://ssrn.com/abstract=2261346 or http://dx.doi.org/1 0.2139/ssrn.2261346
Frieden, Rob, Network Neutrality or Bias?- Handicapping the Odds for a Tiered and Branded Internet (September 2006). Available at
SSRN: http://ssrn.com/abstract=893649 or http://dx.doi.org/1 0.2139/ssrn.893649
Frieden, Rob, Internet 3.0: Identifying Problems and Solutions to the Network Neutrality Debate (February 2007). Available at SSRN:
http://ssrn.com/abstract-962181 or http://dx.doi.org/1 0.2139/ssrn.962181
From:
Sent:
To:
Cc:
Subject:
Attachments:
Evan Kwerel
Jonathan Levy; Tim Brennan
Chuck Needy
FW: Chris Hogendorn
FCC abstract.pdf
Coleman Bazelon has suggested that we might be interested in hearing a talk in March from Chris Hogendorn
on "Complementarities and Open Infrastructure." An abstract of the talk is attached. Should we schedule something?
Evan
From: Bazelon, Coleman [Coleman.Bazelon@brattle.com]
Sent: Monday, February 10, 2014 2:50PM

To: Evan Kwerel
Subject: Chris Hogendorn

Hi Evan,
Attached is an abstract for what Chris Hogendorn would propose to talk about at the FCC. Does this sound
interesting? What other materials do you need? If so, is there a time in March that works well for you guys?
Cheers,
Coleman
COLEMAN BAZELON
Principal
The Brattle Group
Direct + 1.202.4 19.3338
Mobile + 1.410.262.6873
brattle.com
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Complementarities and Open Infrastructure

Christiaan Hogendorn
Economics Department, Wesleyan University and
Hitachi Center for Technology and International Affairs,
Fletcher School, Tufts University
Network neutrality and related concepts of"openness" and "open systems" refer to
communications service providers' relationship with content, including small websites
and major Internet forces like Facebook and Google. There have been significant
debates about whether communications networks should be compatible or
nondiscriminatory, and whether these are problems of monopoly or another kind of
market failure.
The idea that infrastructure, technology, and openness are collectively important to
economic welfare is an old one and provides the context in which common carrier
obligations developed. It was also an important, though partially neglected, context
for Hotelling's (1938) dictum that "the optimum of the general welfare corresponds to
the sale of everything at marginal cost:' and the resulting Marginal Cost Controversy.
The reasons for a market failure in regard to openness can be divided into marginal
and inframarginal, which also corresponds to static and dynamic with respect to
technology. The marginal market failures are positive externalities and inappropriable
surplus. Both are well understood but often assumed away in the economics literature.
The inframarginal market failures revolve around the introduction of new products, as
emphasized in the macroeconomic-oriented work of Paul Romer. When a good is an
input into new products, complementarities (a type of spillover that includes
inframarginal surplus and inframarginal externalities) become relevant to welfare
analysis, and the magnitude of potential market failure rises many fold. These issues
matter most when the good in question is an essential input into a wide range of new
products - precisely the situation, indeed almost the definition, of infrastructure.
My focus is on price discrimination and multi-part pricing. These pricing techniques
can enhance efficiency in some cases, and were offered by Coase and many followers
as regulatory solutions for infrastructure. But I show that they can exacerbate market
failure with regard to complementarities by making infrastructure less open.
From:
Sent:
To:
Subject:
Chuck Needy
Chuck Needy
Tomorrow at 10:30 --Seminar on Net Neutrality & Price Discrimination
is Assoc. Prof. of
Economics at Wesleyan Univ. His
research interest is the economics of
infrastructure industries, especially
telecom and the Internet. Earlier, he was
a member of the Research Dept. at Bell
Labs. Chris holds a PhD from Univ. of
Penn.
Evan
Kwerel (OSP) has invited Chris to discuss the debate about whether
communications networks should be compatible or nondiscriminatory-- and
whether these are problems of monopoly or another kind of market
failure. Chris observes that the reasons for a market failure in regard to
openness can be divided into marginal and infra-marginal, which also
corresponds to static and dynamic with respect to technology. He argues that,
although price discrimination and multi-part pricing can enhance efficiency in
some cases, they can exacerbate market failure with regard to
complementarities by making infrastructure less open.
Not Responsive
From:
Sent:
To:
Subject:
Jared Cornfeld
Jerry Duvall; Thomas Spavins; Adonis Hoffman; Ajit Pai; Aleks Yankelevich; Allen Barna;
Allison Baker; Amanda Burkett; Austin Randazzo; Carer' Mattey; Catherine Matraves; Chin
Yoo; Clarence Bush; Claude Aiken; Clint Odom; Courtney Reinhard; Dana Scherer; Daniel
Shiman; Don Sussman; Donna Christianson; Douglas Galbi; Eliot Maenner; Elizabeth
Andrion; Elizabeth Mdntyre; Ellen Burton; ellen goodman; ellen goodman rutgers; Emily
Burke; Eric Ralph; Eric Spry; Erin McGrath; Evan Kwerel; Gary Epstein; Gigi Sohn; Gloria
Thomas; Heidi Kroll; Henning Schulzrinne; Howard Symons; Irene Wu; Jack Erb; Jake
Riehm; James Miller; Jared Cornfeld; Jay Schwarz; Jennifer Prime; Jeremy Marcus; Jessica
Campbell; Jill Benitez; Johanna Thomas; John Adams; John Adesalu; John Leibovitz; John
Williams; Jonathan Chambers; Jonathan Levy; Kalpak Gude; Kiran Duwadi; Linda Oliver;
Lisa Leyser; Louis Peraertz; Maria Kirby; Mark Bykowsky; Mark Walker; Matthew Berry;
Matthew Quinn; Meribeth
Michael Byrne; Michael Steffen; Mignon Clyburn;
Mike ORielly; Nicholas Alexander; Octavian Carare; Omar Nayeem; Paroma Sanyal;
Patrick Halley; Paul D'Ari; Paul Hartman; Paul Lafontaine; Philip Verveer; Pramesh
Jobanputra; Rebecca Hanson; Rebekah Goodheart; Renee Gregory; Richard Kwiatkowski;
Robert Tanner; Robert Cannon; Rodger Woock; Sherille Ismail; Simone DAbreu;
Soumitra Das; Steve Wildman; Steven Rosenberg; stuart benjamin; Susan Lee; Susan
Singer; Tamara Smith; Tejas Narechania; Tim Brennan; Tom Wheeler; Travis Litman; Ty
Bream; Vickie Robinson; Walt Strack; Wayne Leighton; William Layton; William Sharkey;
Yvette Tarlov; Zachary Bastian
FW: Cowen Conference Call: Navigating Net Neutrality 5/16/14 at 11:00 AM ET
COWEN
C>ONFEFiENCE CALL
Navigating Net Neutrality

Friday, May 16, 2014
11:00 am ET
CLICK HERE TO ADD TO CALENDAR
Dial-in: (888) 254-2821 or (913) 312-1475
Conference CaiiiD: 1205075
On the heels of the FCC's latest proposals around Net Neutrality we'll be sorting through the relevant details and potential
impacts across TMT with guest speaker Andrew Lipman.
Colby Synesael, Telecom Services & Internet Infrastructure Analyst, Cowen and Company
John Blackledge, Internet Analyst, Cowen and Company
Andrew Lipman, Partner, Bingham McCutchen
Andrew has spent more than 30 years developing the firm's Telecommunications, Media and Technology Group into one
of the largest practices of its kind in the nation. He practices in virtually every aspect of communications law and related
fields, including regulatory, transactional, litigation, legislative and land use. The TMT Group is international in scope,
representing clients in the U.S., Central and South America, Europe, Asia, and other parts of the world.
1
This call will be recorded and available for replay through 5/23/14:
Domestic replay: (888) 2031112
International replay (719) 4570820
Replay passcode: 1205075
Cowen Product Management I PMGMT@cowen.com
This message and any attachments are confidential. If you are not the intended rec;:ipient, please notify the
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update any opinions or other information contained herein.
From:
Sent:
To:
Subject:
Attachments:
Jonathan Levy
Sunday, April 20, 2014 5:03 PM
Nicholas Alexander; Jonathan Chambers; Sheri!le Ismail
FW: Summer Internship
Jordan Kroll Writing Sample.docx; Jordan Kroll CV.docx
To: Jonathan Levy

Subject: Summer Internship
From the Federal Communications Commission website !learned about your need for a
Planning and Policy analysis. Currently I am enrolled as a graduate student
ere I am studying for my Masters in Public Policy. I am very Interested in this position and believe that
ion and relevant work experience, I could make a valuable contribution to your Center. Please find a
copy of my CV and a writing sample attached for your consideration.
As you can see from my CV I had the opportunity to intern at Verizon Communications during the summer of
2012 in their Public Policy, Law, and Security Department. This internship provided me with first-hand experience in
legislative issue areas like net neutrality, the Universal Service Fund, and cybersecurity, areas that I had little previous
experience with but grew to be quite passionate about. I believe that this experience, combined with my strong
research, writing, and communication skills, would lead me to contributing a great deal to your organization.
I am very attracted to the FCC; it is a policy leader in
many of the issue areas I have grown to be quite interested in. It
would be an exciting opportunity to intern with the lead governmental
agency on communication policy issues. The enclosed resume and
writing sample provide additional evidence of
education and relevant skill
any further questions
available to start interning
Please feel free to contact me with

given the opportunity, I would be
rd to hearing from you.
From:
Sent:
To:
Subject:
Grillo, Kathleen M <kathleen.m.grillo@verizon.com>

Thursday, April 24, 2014 8:36AM
Matthew DelNero
voice mail
Matt-
r left you a voice mailthis m o r - - e c a n catch up this morning? If you can't get me on my desk phone
he only time I won't be available today on my mobile is from 10 to 11.
(below), you can try my mobil
Thanks.
Kathleen M. Grillo
Federal Regulatory Affairs
Verizon
1300 I Street, "NW
Suite 400W
(202) 515-2533
kathleen.m.grillo@verizon.com
Subject:
Location:
7B142
Start:
End:
Show Time As:
Thu 6/5/2014 4:30 PM

Thu 6/5/2014 5:30 PM
Tentative
Recurrence:
(none)
Organizer:
Required Attendees:
Optional Attendees:
Henning Schulzrinne
Open Internet Working Group
Thomas Spavins
When: Thursday,
(US & Canada)
Where: 7Bl42
Vishal Misra - OI meeting
June 05,
20l4 4:30 PM-5:30 PM.
(UTC-05:00)
Eastern Time
Prof. Vishal Misra (a Columbia colleague) is informally visiting the Commission this afternoon since he got some spare
time after another DC appointment. The outline of his discussion points:
1. Scope of the proposal should be broadened. Peering arrangements/disputes are intimately related to the issue of network
neutrality fast lanes etc. and should be under the purview. Our prior Shapley value work illustrates that explicitly.
2. Given the current FCC limited scope, competition/market power is the real issue. Our Public option work result, and the
UK/Ofcom approach etc. show that fixing monopolies gets rid of the need of most regulations, e.g. traffic management,
peering resloution etc.
3. Finally, if we have no choice but to regulate a monopoly, instead of the absolute "minimum requirement" people talk
about, we propose a better, novel and flexible alternative of bounded service difference between regular quality and any
premium service offered. It prevents the damaged goods scenario. This is work-in-progress but we have some analytical
results.
Henning
From:
Sent:
To:
Subject:
Attachments:
Tasha Kinney
Jonathan Sallet; Julie Veach; Stephanie Weiner; Matthew DelNero
Updated Attendees List
PublicinterestOI.docx
Public Interest Open Internet Meeting (May 1st at 1:00PM)
Attending
Matt Wood, Free Press
Craig Aaron, Free Press
Andy Schwartzman, Georgetown University
Cheryl Leanza, United Church of Christ
Todd O'Boyle, Common Cause
Barbara Van Schewick, Stanford (By Phone) 650-561-4539
John Vezina, WGA W (By Phone) 323-782-4875
Sarah Morris, New America Foundation
Ellen Stutzman, WGA W (By Phone) 323-782-4875
Gabe Rottman, ACLU
David Sohn, CDT
Corrine Yu, Leadership Conference for Civil Rights (By Phone) 202-466-5670
Michael Weinberg, Public Knowledge
Chris Riley, Mozilla, By Phone
Hazeen Ashby, National Urban League
Michael Scurato, National Hispanic Media Coalition
Tim Wu (By Phone) 415-690-0688
Sandra Fulton, ACLU
Not attending
Gene Kimmelman, Public Knowledge

Alan Davidson, New America Foundation
Michael Copps, Common Cause
Amalia Deloney, Center for Media Justice
Rashad Robinson, Color of Change
Kevin Werbach, University of Pennsyvlania
Susan Crawford, Harvard University
Kim Gandy, National Organization for Women
Delara Derakshani, Consumers Union
Marvin Vargas, WGA W (By Phone)
Malkia Cyril, Center for Media Justice (By Phone)
From:
Sent:
To:
Cc:
Subject:
Rashatwar, Rupalee <rrashatwar@NAAG.ORG>

Matthew DelNero
Neil, Mark
RE: Spring Consumer Protection
Hello Matt,
I will note that on the agenda-thank you. And A/V will be available. We would welcome and encourage some materials
for distribution to the attendees- Powerpoint or otherwise. Please feel free to send them my way in adva nee of the
program so I can make them available for attendees digitally or in print if you so request.
Please let me know what you prefer! Thank you!
Rupalee Rashatwar
Program Coordinator/ Acting Legislative Coordinator
zo3o M St, NW gth Floor
P: (202) 326-6018
E: RRashatwar@naag.org
From: Matthew DelNero [mailto:Matthew.DeiNero@fcc.gov]

To: Rashatwar, Rupalee
Cc: Neil, Mark
Subject: RE: Spring Consumer Protection
Rupalee,
Thank you for your note, and please accept my apologies for the delay in getting back to you. I am very much looking
forward to speaking at the Spring Consumer Protection Seminar. In terms of a title, I would suggest "Protecting and
Promoting the Open Internet."
Will there be an opportunity to use powerpoint? I could put together a few slides if that will be helpful. In terms of
materials, unfortunately anything I'd want to share would come from the NPRM to be voted on by the Commissioners
on Thursday-- so I can't provide those yet.
Best wishes,
Matt
MatthewS. DelNero
Deputy Bureau Chief
Wireline Competition Bureau, FCC
Tel: 202.418.7433
Email: matthew.delnero@fcc.gov
From: Rashatwar, Rupalee [mailto:rrashatwar@NAAG.ORG]
Sent: Friday, May 09, 2014 12:43 PM

To: Matthew DelNero
Cc: Neil, Mark
Subject: Spring Consumer Protection
Hello Mr. DelNero
I am reaching out regarding the NAAG panel that Emmitt Carlton indicated you would be participating in at the Spring
Consumer Protection Seminar. Your speech is scheduled from 10:45 to 11:15AM on Monday May 19 at the Westin
Georgetown located at 2350 M St NW. The conference is on the basement level, and the audience will be comprised of
AG staff only. Attached is an attendance list in case you are curious who will be in attendance. How shall we list your
presentation on the agenda? We currently have you down as discussing, "Internet Neutrality".
Also if you have any handouts or materials you would like to share with AG staff, please send them to my attention by
Tuesday May 12.
Please let me know if you have any concerns in advance of the meeting. Thank you again for participating in this event.
We are looking forward to your contributions.
Rupalee Rashatwar
Program Coordinator/ Acting Legislative Coordinator
2030 M St, NW 8th Floor
washington, DC 20036
P: (202) 326-6018
E: RRashatwar@naag.m:g
Ann Infinger
Christine Hom
Lauren Villnow
Shannon Taitano
Stephen Levins
Landon Murata
Government
Government
Government
Gov Scholarship
Gov Scholarship
Government
Director; Consumer Protection
Director, Consumer Protection

Deputy Director, Consumer Protection Division
Chief Counsel of Consumer Protection
Director-Consumer Protection
Assistant Attorney General
Director of Investigations
Asst. Attorney General/Ex. Director
Debby Hagan
Terry Tolliver
Abby Kuzma
William Brauch
Jackie N Williams
Tanya Hutchings
Todd Leatherman
Brendan O'Neil
Government
Gov Scholarship
Government
Gov Scholarship
Gov Scholarship
Government
Gov Scholarship
Government
Deputy Attorney General
Executive Director
Attorney
Attorney
Staff Attorney
Staff Attorney
Consumer Protection
Senior Assistant Attorney General
Dan Walsh
Gov Scholarship
Rebecca Pruitt
Richard P. Lawson
Government
Chief Multi-State and Privacy Bureau
Gov Scholarship
Patrice Malloy
Gov Scholarship

Bruce B. Kim
Rebecca Sirkle
Gov Scholarship
Oscar Klaas
Grant May
Gov Scholarship
Gov Scholarship
Gary Tan
Gov Scholarship
Director; Fraud and Consumer Protection
First Assistant Attorney General
Supervising Deputy Attorney General
Chief Deputy
Title
Government
Matt Lintner
Jillian Lazar
Government
Sandra Arenas
Gov Scholarship
Government
Nicklas Akers
Jay Simonson
Shawn Johnson
Gov Scholarship
Gov Scholarship
Rick Bistrow
Government
Gov Scholarship
Name
Type of Attendee
Government Attendees
May 19-21, 2014
2014 NAAG Spring Consumer Protection Se1
Joyce Yeager
Kelley Hubbard
Ed Eck
Abigail Stempson
Laura Tucker
JoAnn Gibbs
Karen Meyers
Mary Alestra
Michael Henry
Gov Scholarship
Gov Scholarship
Government
Gov Scholarship
Government
Government
Gov Scholarship
Gov Scholarship
Gov Scholarship
Senior Assistant Attorney General

Director, Consumer Protection Unit
Julie Bays
Jonathan Groux
Tammy Miller
Jared Libet
Andrea C. Sancho
Phil Carlson
Jessica Myers
Gov Scholarship
Gov Scholarship
Gov Scholarship
Gov Scholarship
Government
Government
Government
William Wilson
Gov Scholarship
Matt Hull
Shannon Smith
Gov Scholarship
Chief, Public Protection Division
Paul Singer
Josephine Morgan
Gov Scholarship
Gov Scholarship
Gov Scholarship
Jacob Petry
Gov Scholarship
Chief Counsel for Consumer Affairs
Gov Scholarship
Assistant At!(Jrney General
Sr. Assistant Attorney General
Senior Counsel
Maliaka Bass
Carolyn Smith
Government
Chief Assistant Attorney General
Chief, Consumer Protection Section
Parrell Grossman
Sandy Lynskey
Gov Scholarship
Director-Consumer Protection & Antitrust
Senior Deputy Attorney General
Special Counsel
Director, Consumer Protection Division
Chief Multistate Counsel
Chief, Consumer Protection Division
Special Assistant Attorney General
Special Assistant Attorney General
Division Chief
Government
Kevin Anderson
Bridgette Wiggins
Government
Jennifer Harrod
Crystal Utley Secoy
Gov Scholarship
Government
OCP Bureau Chief
Joseph Patchen
Gov Scholarship
Government
Alistair Reader
Gov Scholarship
Phil Ziperman
Government
Chief, Consumer Protection Division
William Gruhn
Gov Scholarship
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Indiana
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Idaho
Hawaii Office of Consumer Protection
Hawaii Office of Consumer Protection
Hawaii
Guam
Georgia
Georgia
Georgia
Georgia
Florida
Florida
Florida
District of Columbia
District of Columbia
Delaware
Delaware
Connecticut
Colorado
California
Arkansas
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From:
Sent:
To:
Cc:
Subject:
Latoya Toles
Tuesday, April 22, 2014 8:59AM
'Matthew.Murchison@lw.com'
Matthew DelNero
RE: Meeting request for NCTA
Hi Matthew, sorry about that. See email below.

This email is to confirm that you have a meeting scheduled with various WCB staff (listed below) to discuss the
Commission's Open Internet remand proceeding. On Tuesday, April 22nd from 4:00pm-4:30pm. The meeting will be held
in 5-8112 -North Conference Room. When you arrive, please have security call the main line at 202.418.1500.
WCB Attendees
Matthew DelNero
Stephanie Weiner
Carol Simpson
Kristine Fargotstein
Claude Aiken
LaToya Toles
Staff Assistant
202.418.1353
From: Matthew.Murchison@lw.com [mailto:Matthew.Murchison@lw.com]
Sent: Monday, April 21, 2014 5:12PM

To: Latoya Toles
Subject: RE: Meeting request for NCTA
Hi Latoya -I think you mentioned that you'd be sending me a confirmation email regarding the meeting scheduled for
4:00 on Tuesday. I don't believe I've received that email yet, so I just wanted to check in and make sure the meeting is
on.
Thanks,
Matt
From: Murchison, Matthew (DC)
Sent: Friday, April18, 2014 4:08PM

To: 'latoya.toles@fcc.gov'
Cc: Brill, Matthew (DC)
Subject: Meeting request for NCTA
Ms. Toles,
On behalf of the National Cable & Telecommunications Association (NCTA), I am writing to request a meeting early next
week with Carol Simpson, Matt Warner, Kristine Fargotstein, and Stephanie Weiner (OGC) (or some subset of that group)
in connection with the Commission's Open Internet remand proceeding. Our group likely would include myself, my
colleague Matt Brill, and Rick Chessen of NCTA. Please let me know what times would work on Monday, April 21st, and
Tuesday, April 22nd, and we will do our best to make ourselves available.
Many thanks,
Matt
Suite 1000
Direct Dial: + 1.202.637.2136
Fax: +1.202.637.2201
Email: matthew.murchison@lw.com
http://www.lw. com
written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code or (ii)
Subject:
Location:
Open Internet Meeting w/Tech

Conference Room #1
Start:
End:
Show Time As:
Fri 5/2/2014 2:30 PM

Fri 5/2/2014 3:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Tasha Kinney
Gigi Sohn; Sara Morris; Jonathan Sallet; Shannon Gilson; Matthew DelNero; Stephanie
Weiner; Julie Veach
Subject:
Location:
Open Internet Meeting w/Public Interest, Academia

Conference Room #1
Start:
End:
Show Time As:
Thu 5/1/2014 1:00 PM

Thu 5/1/2014 2:00 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Tasha Kinney
Weiner; Julie Veach
Content Companies Open Internet Meeting (May 6th at 3:30PM)
Attending
Susan Fox, Disney

Margaret Tobey,
Jessica Marventano, Clear Channel
Eddie Lazarus, Tribue
Gregory Babyak, Bloomberg
Kimberly Hulsey,Scrippsnetworks
Rick Lane, 21st Century Fox
John Orlando, CBS
Linda Kinney, MPAA
Jane Mago, NAB
Claudia James, Podest Group
Not attending
Maureen O'Connel, 21st Century Fox

KJy Dixon, Time Warner
Dede.lea@viacom.com
From:
Sent:
To:
Subject:
Attachments:

Monday, May 12, 2014 10:13 AM
Priscilla Argeris; Amy Bender; Nicholas Degani; Rebekah Goodheart; Diane Cornell;
Matthew DelNero; Ruth Milkman; Jonathan Sal!et; Gigi Sohn; Philip VeNeer; Stephanie
Weiner
5 12 14 Open Internet FCC ltr.pdf
FYI. Please call if you have any questions.
Kathy
.Kathryn A. Zact1em
Senior VIce P(!lSident, Regulatory & State Legislative. Affairs
Corneas! Corporalion
Washington, oc 20001
Phone: 202-379-7134
Fax:
202-379-7149
l<ajhv Zacbem@ComcofilcQm
Assistant: Donna Crichlow 202-379-7118- Qonoa Qr!chlow@ComcaS{.com
Kathryn A Zachem
Comcast Corporation
300 New Jersey Avenue, NW
Suite 700
202.379.7134
CO.MCAST
May 12,2014
Marlene H. Dortch
Secretary
. Federal Communications Commission
Re:
Dear Ms. Dortch:

Comcast has been a strong proponent of Internet openness, and, indeed, is the only broadband
provider subject to a legally binding obligation to refrain from blocking consumers' access to lawful
web content and services or-from engaging in unreasonably discriminatory conduct. 1 While Comcast
continues to be a steadfast supporter of openness and remains confident that the Commission can
appropriately balance consumer protection with the need to allow network operators to manage their
networks reasonably, we believe that any proposal by the FCC to reclassify broadband Internet access
as a telecommunications service subject to Title II of the Communications Act would be a
destabilizing and counterproductive means of pursuing those important objectives.
Starting with the Cable Modem Declaratory Ruling in 2002, the Commission has consistently
ruled that broadband Internet access services inextricably combine transmission and information
processing, such that they are properly characterized as information services without any severable
telecommunications service component. 2 In the wake of those decisions, and in express reliance on
the Commission's determination that common carrier regulation does not (and should not) apply, cable
operators and other Internet service providers have invested hundreds ofbillions of dollars to deploy
increasingly robust broadband networks, laying the groundwork for an explosion of innovation in the
Applications ofComcast Corporation, General Electric Company, and NBC Universal, Inc.for Consent to Assign
Licenses and Transfer Control ojLicensees, Memorandum Opinion and Order, 26 FCC Red 4238, '1[94 (2011 ).
Inquiry Concerning High-Speed Access to the Internet Over Cabfe and Other Facilities, Declaratory Ruling and
Rulemaking, 17 FCC Red 4798 (2002); see also, e.g., Appropriate Framework for Broadband
Access to the Internet over Wire/ine Facilities, Report and Order and Notice of Proposed Rulemaking, 20 FCC
Red 14853 (2005) (classifying wireline broadband services as information services); Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Wireless Network!!, Declaratory Ruling, 22 FCC Red 5901
Notice
(2007) (classifying wireless broadband services as information services) .
..

May 12,2014
Page2
Internet ecosystem. This is the foundation on which the extraordinary Internet economy that is the
envy of the world emerged and thrived. Any effort to upend that settled legal framework-which has
been supported by Commissions and Administrations led by both parties-would be enormously
disruptive: It would deter the many billions in additional investment required to connect all Americans
and to continue increasing speeds, while subjecting the industry and the Commission to years of
debilitating litigation and resulting uncertainty. Just ten years ago, the Commission and the
Department of Justice expressly recognized these risks and went to considerable lengths to avoid the
imposition of common carrier regulation precisely because "[t]he effect of the increased regulatory
burdens" likely would have been to prompt ISPs to "postpone or forego plans to deploy new
broadband infrastructure, particularly in rural or other underserved areas." 3 The last thing the
Commission should do at this stage is to break from the long bipartisan approach that has borne such
fruit to date and radically shift to an approach that would curtail broadband investment and impede
adoption. 4
Fortunately, risking such harm.s is entirely unnecessary. The D.C. Circuit has now confirmed
the. Coml)1ission's power to prohibit blocking and to ensure commercially reasonable business
arrangements between access providers and edge providers pursuant to Section 706 of the
Telecommunications Act of 1996, ending a sustained peri.od of uncertainty regarding the
Commission's authority to adopt rules toenforce Internet openness. 5 While the Commission
understandably had contemplated reclassification theories before the court upheld its authority to
regulate information services, it would make no sense to pursue such a high-risk path now that the
D.C. Circuit has validated the Commission's analysis of potential threats to Internet openness and held
that the Commission has ample power to prohibit anticompetitive conduct and prevent harm to
consumers ..
Moreover, even apart from the substantial legal impediments to abandoning classification
decisions grounded in factual findings on which the industry has relied for more than a decade, the
purported benefits of invoking Title II as compared to relying on Section 706 are illusory. There is no
way to predict how a court would rule on a challenge to imposing Title II, and, in any event, Title II
would not necessarily support greater constraints on Internet practices. Common carriers are
prohibited only from engaging in unreasonable discrimination, 6 and the relevant precedent makes
clear that this standardentails substantial flexibility to differentiate among customers for legitimate
3
Petition fat Writ of Certiorari, U.S. Dept. of Justice and FCC, FCC v. Brand X Internet Servs., No. 04-277, at 2526 (Aug. 27, 2004). The Department of Justice and the Commission further recognized that the Commission's
"forbearance authority is not in this context an effective means ofremov[ing] regulatory uncertainty that in itself
may discourage investment and innovation"). !d. at 28 (internal quotation marks omitted).
See, e.g., Progressive Policy Institute, America's Digital Policy Pioneers, video recording at
http://www.progressivepolicy.org/20 13/ 12/americas-digital-policy-pioneers/ (including former Chairman

Kennard's endorsement of bipartisan commitment to avoiding heavy-handed regulation of broadband Internet
access services).
5
47 U.S. C. 202(a).

May 12,2014
Page4
cc:
PriscillaArgeris
Amy Bender
Nicholas Degani
Rebekah Goodheart
Diane Cornell
Matthew DelNero
Ruth Milkman
Jonathan Sallet
Gigi Sohn
Philip Verveer
Stephanie Weiner
. .
From:
Sent:
To:
Subject:
Marvin Ammori FOIA Exemption 6

Philip Verveer
RE: connection
>>':
Wonderful. See you then.

Sent from Mailbox for iPhone
On Wed, Mar 19,.2014 at 1:09PM, Philip Verveer <Philip.Verveer@fcc.gov> wrote:

Marvin
I could meet Friday at 11:00.
Phil
From: Marvin Ammori FOIA Exemption 6
Sent: Wednesday, March 19, 20141:03 PM

To: Philip Verveer
Subject: Re: connection
Hi Phil,
Great.
I'll be doing some traveling again when you're back, so we could try for
--this Friday, day after tomorrow, before 11 :30a or after 2p.
--Friday 3/28 afternoon or
-- Monday 3/31 sometime between
11 am.
Thanks much, again, looking forward.
On Wed, Mar 19,2014 at 12:52 PM, Philip Verveer <Philip.Verveer@fcc.gov> wrote:

Marvin
Thank you for the message. I look forward to an opportunity to meet.
1 will be away from Wash.ington next Monday through Wednesday so we will have to find a convenient time the
following week or later. With very limited exceptions, I expect to be in Washington continuously for the next several
months after next Wednesday.
Phil
From: FOIA Exemption 6
On Behalf Of Marvin Ammori

To: Philip Verveer
Subject: Re: connection
Thanks Ben.
Hi Phil,
Nice to meet you virtually. I hear a lot of good things from people who've worked with you over the years.
I'd love to get together and discuss the aftermath of the Verizon v. FCC case, particularly regarding the law and
policy of the Chainnan's proposal.
Would you be available to meet Monday before 11 or after 2:30? Anytime Tuesday also works, but I'm
traveling the rest of next week.
And happy to do coffee or a drink if that's convenient.
Thank you.
Principal
Ammori Group
On Tue, Mar 18, 2014 at 1:44PM, Philip Verveer <Philip.Verveer@fcc.gov> wrote:

Thanks, Ben. I look forward to becoming acquainted with Marvin.
Phil
From: Ben Scott [mailto: FOIA Exemption 6
Sent: Tuesday, March 18, 2014 11:32.AM

To: Philip Verveer
Cc: Marvin Ammori
Subject: connection
Hi Phil,
I. hope this note finds you well. It was a pleasure to see you in February. I will be back in touch with you once
we have more information on the interconnection matter we discussed. As you know, the plot has thickened
on that particular story line.
In the meantime, I wanted to introduce you to Marvin Ammori (cc'd). Marvin was my lawyer for many years
when I ran the policy shop at Free Press, and we lived through the first rounds of net neutrality wars during the
Kevin Martin era. Marvin filed the complaint and argued the Comcast v. BitTorrent case- and he was a close
adviser during the Genachowski rule-making. Only a handful of people in town know the fine points ofthe
legal issues as well as he does; and I will be immodest on his behalf and say that none know them better.
As I watch from afar the debate over these issues- about which I care deeply- I wanted to volunteer him as a
useful resource who may provide helpful history and context. I'll let him follow up and perhaps there is time
for a meeting at FCC.
best regardsBen
From:
Sent:
Cc:
Subject:
Philip Verveer
'David Schaeffer (dschaeffer@cogentco.com)'
Julie Veach; LatoyaToles; Ruth Milkman; Jonathan Sallet
FCC Meeting
Contacts:
Categories:
David Schaeffer
Yellow Category
To:
Mr. Schaeffer
Chairman Wheeler has indicated that you would be interested in discussing broadband interconnection and peering
issues with the Commission. A group of FCC officials is engaged in studying the architectural and economic issues
surrounding interconnection and peering. That group would welcome a meeting with you or your representatives.
The activities are being led by Julie Veach, the Chief of the FCC's Wire line Competition Bureau. We would be very
pleased if you or one of your colleagues would contact Julie's executive assistant LaToya Toles (copied here; telephone
202 418 1353) to arrange a meeting.
Phil
Philip L. Verveer
Senior Counselor
Office of the Chairman
445 12th Street, SW
202 418 0897
From:
Sent:
To:
Subject:
Jim Glassman <Jim.Giassman@AEI.org>

Philip Verveer
Invitation: AEI Previews FCC Open Meeting
Greetings!
The FCC's May Open Meeting is coming up, which means it's time for another installment of AEI's tech policy
breakfast series, "FCC Pre." In these invitation..:only events, AEI's Center for Internet, Communications, and
Technology Policy (CICT) brings together a small group from the private sector, Hill, a.nd think tank community to
discuss the agenda for the next FCC Open Meeting. We would love to have you participate.
The FCC's May agenda is packed with issues of vital importance to those operating in the Internet economy. At the
FCC Pre breakfast, we will be covering net neutrality, incentive auctions, mobile spectrum holdings, and wireless
microphones. The breakfast will be on Thursday May 8, from 8:30 to 10:00 a.m. at AEI's offices on 1150 17th St
NW, Washington, DC.
A full breakfast will be served.
To RSVP or request further information, please contact Guro Ekrann, at guro.ekrann@aei.org.
Sincerely,
James K. Glassman
Visiting Fellow
American Enterprise Institute
From:
Sent:
To:
Subject:
Brendan Sasso <bsasso@nationaUournal.com>

Philip VeNeer
net neutrality
Hi Phil,
Do you have a minute to talk about the new net neutrality rules? I'm at my desk: (202) 266-7685. I'll be on my
celll.ater today: FOIA Exemption 6
Thanks.
Brendan Sasso
Technology Rep011er
National Journal
(202) 266-7685
From:
Luigi Gambardella FOIA Exemption 6
Sent:
Thursday, March 27, 2014 12:31 PM
To:
Philip Verveer
Digital Regulation and the 'Puppy Effect'; How is 'net neutrality' like puppies? You can
only say that you love them
Subject:
Dear friends,
I would like to share with you an opinion editorial! wrote yesterday on the Wall Street Journal.
It is available at this link http://on.wsj.com/1p1qfBA
Best regards,
Luigi Gambardella
Digital Regulation and the 'Puppy Effect'; How is 'net neutrality' like puppies? You can only say that you
love them.
The Wall Street Journal Online, Luigi Gambardelfa, Tuesday, 25 March 2014
What has net neutrality to do with puppies? More than you would imagine. Recently, while exchanging views with an
acute and well-informed observer of European politics, I was told: "I share most of the telecom industry's concerns
on how the debate is evolving, but net neutrality is like puppies. You can only say that you love them."
This anecdote is telling of where we stand in the debate about a crucial part of the EU's Connected Continent
regulation, which is now being amended by the European Parliament.
This piece of legislation, originally put forward by European Digital Agenda Commissioner Neefie Kroes, is aimed at
reigniting the growth of the European telecoms sector by strengthening the EU's single market. But now, two
months before the European Parliament elections, the debate has become confused. and dominated by populist
appeals to defend the "open Internet." Translating this principle at the EU level resulted in an ambiguous legislative
text, which makes hardly any sense to those engineers who run our networks.
The outcome is that some members of the parliament now propose amending Ms. Kroes's legislation to provide for
separating specialized services from the rest of the Internet. If such a draft were adopted, operators would be
precluded from prioritizing specific traffic, supposedly in aid of the "open Internet." Thus ahead of the May elections,
a cynical puppy effect among European politicians risks jeopardizing not only the objectives of the Connected
Continent regulation, but also the sustainability of the Internet as we know it today. People advocating for such
restrictive measures claim they Jove puppies-er, the "open Internet. In fact, they are putting pressure on the
European Parliament to rush through measures that could harm the whole digital ecosystem. Let me explain why.
First of all, some activists are pushing even more unclear language into the European Parliament's amendments.
Obscure, technical wording such as "logically distinct capacity," or paragraphs instructing that specialized services
shouldn't affect the "general quality of Internet access," would translate good prinCiples into bad legislationlegislation that fails to take into account how the Internet works.
Specialized services are part of the Internet as we know it: Think of telemedicine, Internet-based television, video on
demand an9 many other services. Consumers, businesses and health-care providers are all demanding these
services, they value them and in many cases think they are essential. If the wording, as currently floated, is adopted
to prevent any prioritization, the only way for operators to comply would be to operate networks that are separate
1
from the public Internet.

But telecom operators are far from the only players.who would be affected by such intrusive legislation. There is an
entire value chain out there that relies on the possibility of offering specialized services over the public Internet in
order to reach customers. In the field of telemedicine, for example, hospitals and other health-care providers
demand (and need) ensured quality and dedicated capacity. Here we are talking about essential European public
services that are critical to both citizens and governments.
What if we turn to businesses? Internet firms are a good example. Some innovative companies are interested in
giving their customers the possibility to enjoy superior, guaranteed streaming quality for movies and television.
Online distribution is fundamental to creating new opportunities for content delivery, and it is critical to the ability of
content providers to adapt to and benefit from the digital revolution. For years, many companies along the digital
value chain have been using these solutions to enhance the quality of traffic delivery internationally. We shouldn't
kill innovation and new growth opportunities with ill-thought provisions.
If we look at the broader picture, it seems that the European parliamentarians supporting these provisions might
have lost sight of a fundamental question: Where is Europe heading? The Internet is global. Can Europe afford to
set rules that would oblige EU telecom operators to run networks differently than the rest of the world? Won't this
handicap EU operators if, for example, our American peers are able to do things that we are prevented from doing in.
Europe? Is this a level playing field? We Europeans risk shooting ourselves in the foot at a time when companies
are fighting to succeed in a highly innovative, competitive and fast-moving environment.
European telecom operators' business is all about giving people access to the services they want. This is why our
organization, the association of European Telecommunications Network Operators (ETNO), has embraced the
principle of an open Internet, where choice and diverSity are the cornerstones of a better society. But establishing
and defending the principle of an open Internet won't be accomplished by stifling innovation and blocking growth.
European parliamentarians must not let a pre-electoral puppy-effect wipe away the thriving digital environment we
have today.
Mr. Luigi Gambardella is the executive chairman of ETNO, the association representing Europe's largest telecom
operators.
http://on/ine. wsj.comlnews/artic/es/SB1 0001424052702303725404579461281958053934?mod:=djkevword&mq-ren
o64-ws;
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From:
Sent:
To:
Subject:
.
Gambardella Luigi FOIA Exemption 6
Tuesday, March 18, 2014 8:03 AM
Philip Verveer
.
I: DJ EU Committee Votes in Favor of Telecoms Package -- Update
Phil
FYI
Luigi
----- Messaggio originate----Da: Press Office

lnviato: Tuesday, March 18, 201412:19 PM
Oggetto: DJ EU Committee Votes in Favor of Telecoms Package-- Update
DJ EU Committee Votes in Favor of Telecoms Package-- Update
By Frances Robinson
BRUSSELS--European Union lawmakers on Tuesday voted narrowly in favor of proposals to reform the continent's
telecoms market, putting it on track to become law by the end of this year.
Thirty members of the Parliamentary Committee on Industry, Research and Energy voted in favor of the amendments
to the proposed legislation, 12 voted against, while 14 abstained.
The legislation will now be put to a vote when the full parliament meets on April 3 for a plenary session. The
European Commission--the EU's executive arm which proposed the legislation--said it expects a final agreement of the
regulation by end of 2014.
The proposals include handing the commission more powers to review how governments allocate spectrum, ending
roaming fees, and rules on net neutrality which would stop Internet providers discriminating against trafficfrom
particular sources. Telecoms operators had wanted to charge users for newer and faster services.
Neelie Kroes, the EU commissioner for the digital agenda who proposed the legislation, said the vote is "great news,"
especially on net neutrality.
"This is about ensuring a dynamic, healthy, competitive telecoms sector, fit to face the future," she said. "And giving
every European citizen the seamless connectivity they have come to demand- without unfair practices like blocked
services or roaming charges."
But Luigi Gambardella, executive-board chairman of the European Telecommunications Network Operators'
Association, which represents the continent's biggest telecoms companies, including Deutsche Telekom AG, Orange SA
and Telefonica SA, said operators must have the flexibility to charge more for certain services.
"If the restrictive changes to the Open Internet provisions are confirmed in the final text, the access of European
users and businesses to our services will be affected," he said in a statement. "This would turn into a dangerous
situation, in which the European digital economy will suffer and EU businesses will be put in a difficult competitive
situation with respect to other areas of the world."
The parliament's position is being decided ahead of negotiations with representatives of the 28 EU governments.
National governments are not keen on some parts of the proposals, including new rules for spectrum because frequency
auctions are often a great way to raise revenue.
Write to Frances Robinson at frances.robinson@wsj.com
Subscribe to WSJ: http://online.wsj.com?mod=djnwires
(END} Dow Jones Newswires
1
18-03-14 1118GMT
Copyright (c) 2014 Dow Jones & Company, lnc.J
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Not Responsive
From:
Sent:
To:
Subject:
Gambardella Luigi <lfuigi.gambardella@tefecomitalia.it>

Saturday, March 22, 2014 2:33 PM
Philip Verveer
I: Fwd: Who should Pay for Netflix?
Phil
FYI
Luigi
===
Da: Luigi FOIA Exemption 6

Inviato: Saturday, March 221 2014 06:42PM
A: Gambardella Luigi
Oggetto: Fwd: Who should Pay for Netffix?
Who should Pay for Netflix?

Dear friends,
I'd like to share with you a great blog post by Jim Cicconi, in response to Reed
Hasting's recent blog.
I share the view that there is a fundamental misunderstanding in the net neutrality
debate. While sharing the principle of Open Internet, we cannot accept an interpretation
of this principle as "free Internet, free lunch".
I believe that also in Europe we should avoid implementing any measure going against
innovation, better services and that at the end would restrict the freedom of the users.
Luigi Gambardella
Who should Pay for Netflix?

Posted by: Jim Cicconi on March 21, 2014 at 4:08 pm
I saw Reed Hasting's blog <http:/lblog.netflix.com/2014/03/internet-tolls-and-case-forstrong-net.html> yesterday from Netflix asserting in rather dramatic fashion (with
diagrams) that ISPs should build facilities (he said provide, but those facilities have to
be built) to accept all of Netflix's content- indeed all of the content on the Internetwithout charge. Failure to do so, according to Mr. Hastings, was a violation of "strong
1
net neutrality rules" and bad public policy. I thought it might be helpful to unpack those
assertions so we could get right down to the core of Netflix's rather radical proposition
-that people who don't subscribe to Netflix should nonetheless pay for Netflix. Here
are some undisputed facts upon which everyone should agree.
First, let's all accept the fact that the advent of streaming video is driving bandwidth
consumption by consumers to record levels. Increased bandwidth consumption and
faster broadband networks like our Gigapower service in Austin, Texas (and soon
Dallas) are requiring all service providers to drive more fiber into their networks to
create the capacity necessary to deliver those services to consumers, whether the
service providers are delivering a wireless or a wireline product. This phenomenon was
at the heart of our Project VIP investment announcement in November 2012 and it is
true of companies like Cogent, Level 3 and CONs like Netflix as well.
Second, we should accept that companies must build additional capacity to handle this
traffic. If Netflix was delivering, for example, 10 Terabytes of data in 2012 and
increased demand causes them to deliver 20 Terabytes of data in 2013, they will have.
to build, or hire someone to build, the capacity necessary to handle that increased
volume of traffic. That increase in traffic from Netflix is, by the way, not only the result of
a likely increase in online viewing by existing subscribers, but also due to an increase in
Netflix's customer base (it announced a 33% increase in subscribers from 2012 to
2013- good for Netflix).
Third, if Netflix is delivering that increased volume of traffic to, say, AT&T, we should
accept the fact that AT&T must be ready to buUd additional ports and transport capacity
to accept the new volume of capacity as a consequence of Netflix's good business
fortune. And I think we can all accept the fact that business service costs are ultimately
borne by consumers.
Mr. Hastings blog post then really comes down to which consumers should pay for the
additional bandwidth being delivered to Netflix's customers. In the current structure, the
increased cost of building that capacity is ultimately borne by Netflix subscribers. It is a
cost of doing business that gets incorporated into Netflix's subscription rate. In Netflix's
view, that's unfair. In its view, those additional costs, caused by Netflix's increasing
subscriber counts and service usage, should be borne by all broadband subscribersnot just those who sign up for and use Netflix service.
When Netflix delivered its movies by mail, the cost of delivery was included in the price
their customer paid. It would've been neither right nor legal for Netflix to demand a
customer's neighbors pay the cost of delivering his movie. Yet that's effectively what
Mr. Hastings is demanding here, and in rather self-righteous fashion. Netflix may now
be using an Internet connection instead of the Postal Service, but the same principle
applies. If there's a cost of delivering Mr. Hastings's movies at the quality level he
desires - and there is -then it should be borne by Netflix and recovered in the price of
its service. That's how every other form of commerce works in our country. It's simply
not fair for Mr. Hastings to demand that ISPs provide him with zero defivery costs- at
the high quality he demands- for free. Nor is it fair that other Internet users, who
couldn't care less about Netflix, be forced to subsidize the high costs and stresses its
service places on all broadband networks.
As we all know, there is no free lunch, and there's also no cost-free delivery of
streaming movies. Someone has to pay that cost. Mr. Hastings' arrogant proposition is
that everyone else should pay but Netflix. That may be a nice deal if he can get it. But
it's not how the Internet, or telecommunication for that matter, has ever worked.
http://www. attpublicpolicy. com/
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From:
Sent:
To:
Gambardella Luigi <luigi.gambardella@telecomitalia.it>

Tuesday, March 18, 2014 3:42 PM
Philip Verveer
I: New York Times : E.U. Panel Adopts 'Net Neutrality' and Mobile Roaming Rules
---- Messaggio originate----Da: Gambardella Luigi

lnviato: Tuesday, March 18, 2014 07:04PM
A: Gambardella Luigi
Oggetto: New York Times: E.U. Panel Adopts 'Net Neutrality' and Mobile Roaming Rules
E.U. Panel Adopts 'Net Neutrality' and Mobile Roaming Rules NYTimes.com Feed, By JAMES KANTER and MARK SCOTI,
Wednesday, 19 March 2014, 984 Words, Copyright 2014. The New York Times Company. All Rights Reserved.
BRUSSELS -A panel of lawmakers voted on Tuesday for tougher measures to promote equal access to the Internet and
to cut the cost of celiphone charges across the 28-member European Union.
But the draft legislation was criticized by consumers and industry groups. Many lawmakers were also unhappy.
The proposal aims to create a single market for electronic communications. It has been the subject offerocious lobbying
by telephone companies, concerned about losing lucrative revenues when users roam in other countries. Providers of
online services have also lobbied for open access to the Internet, in which telecommunications carriers would not be
allowed to set limits on the speed or size of the digital content sent.over their networks.
A similar debate is playing out in the United States, where the Federal Communications Commission has been trying to
devise rules that stand up to appeals-court scrutiny and are meant to keep Internet access on an equal footing for big
and small content providers.
The European vote drew the ire of a number of groups, and the draft law will almost certainly be subject to further
changes.
Meeting in Brussels, the European Parliament's committee for industry, transport, research and energy voted to
strengthen measures in the legislation aimed at preventing Internet service providers- including mobile phone
companies -from slowing access to online services like making phone calls via Skype.
The members ofthe committee also voted to make it mandatory for mobile phone companies to comply with rules
drastically reducing consumers' roaming costs when using mobile phones in other European Union countries.
The European Commission, the Union's administrative arm, had set a deadline of July 2016 and given operators a variety
of options to phase out roaming charges. But under the draft law approved on Tuesday, there would be no options, and
the end of roaming charges would need to happen by mid-December 2015.
As for the net neutrality rules, those would enter into force shortly after a final agreement between the parliament and
Union governments. That could be as soon as late this year depending on the pace of the negotiations- and whether
they are successful.
The law, if passed, would mean that "posting a picture on Face book or having a look at em ails while abroad will be
easier and we should no longer expect shockingly high bills for our mobile communications," said Pilar de Castillo, a
Spanish member of the Parliament who is in charge of guiding passage of the legislation.
"Moreover, we have achieved further guarantees to maintain the openness of the Internet by stating that traffic should
be treated equally, without discrimination, restriction or interference, independent of the sender, receiver, type,
content, device, service or application," she said.
Nee lie Kroes, the member of the commission in charge of digital issues, welcomed the vote as part of efforts at "giving
every European citizen the seamless connectivity they have come to demand- without unfair practices like blocked
services or roaming charges."
But given the resistance from various sides, passage of the current draft law is uncertain.
The roaming and net neutrality legislation would still require approval by the full Parliament during a vote expected on
April 2 or 3, as well as by Union member governments. The approval process seems likely to extend the negotiations
past new elections to the European Parliament, to be held in late May.
In contrast to procedures in many parliaments, in which legislation unfinished by a previous parliament is effectively
dead, it would remain possible for the new European Parliament to ask the European Commission to submit the pending
legislation to allow for another full review. Whether that would happen, though, is anyone's guess.
Overshadowing the vote were dee'p divisions about whether to reserve the highest Internet speeds for certain media
and services that can afford to pay premium access rates.
The panel tightened the rules originally proposed by the commission by specifying that fewer so-called specialized
services that require significant Internet bandwidth- telesurgery or intensive cloud computing- could be offered for a
higher fee. But the panel endorsed the commission's view that this should happen only if it did not degrade the quality
of services used by.other customers, like a slowing of existing Internet speeds.
Advocates of
full net neutrality say that would be unfair, and are seeking to offer all media and services
companies equal access to online consumers. But advocates of a different model warn that full net neutrality risks
overburdening the Internet, degrading services like high-definition video or services for hospitals.
Consumer groups, meanwhile, say that the legislation as drafted has too vague a definition of what constitutes the type
of service for which .telecommunications companies could charge extra to run on their networks.
"The proposals open a door to new forms of discrimination," said Raegan MacDonald, the European policy manager for
the consumer group Access, based in Brussels.
For many industry groups, the net neutrality provisions look too onerous. The groups also complain of limits on their
ability to invest in their networks and restrictions to consumer choice because the networks will not be fast enough.
"The rules proposed by the European Parliament are very restrictive and will hamper innovation," said Luigi
Gambardella, chairman of the European Telecommunications Network Operators' Association.
In the United States, big carriers like Verizon and Time vyarner Cable have spent billions of dollars upgrading their
broadband networks, and they argue that they should be able to manage their networks as they like. They are pushing,
for example, to give Netflix, Amazon and other content providers faster access to their customers- at a cost.
But United States regulators want to prevent such deals, saying that large, rich companies could gain an unfair
advantage.
2
Mark Scott reported from London.
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please delete this message and any attachments and advise the sender by return e-mail, Thanks.
Subject:
Location:
Briefing re: Open Internet NPRM

Commissioner Pai's office
Start:
End:
Show Time As:
Mon 4/28/2014 10:00 AM

Mon 4/28/2014 10:30 AM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Ajit Pai
Julie Veach; Jonathan Sallet; Matthew DelNero; Stephanie Weiner; Matthew Berry
(Matthew.Berry@fcc.gov)
Subject:
Location:
Commissioner Rosenworcel Briefing reOpen Internet NPRM

Commissioner Rosenworcel's office
Start:
End:
Show Time As:
Thu 4/24/2014 4:15 PM

Thu 4/24/2014 4:45 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
WCBChief
Jonathan Sallet; Stephanie Weiner; Matthew DelNero
(Julie has separate scheduler.)
Subject:
Location:
Open Internet Meeting w/Tech

Conference Room #1
Start:
End:
Show Time As:
Fri 5/2/2014 2:30 PM

Fri 5/2/2014 3:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Tasha Kinney
Weiner; Julie Veach
From:
info=ppionline.org@mail.salsalabs.net on behalf of Progressive Policy Institute

<info@ppionline.org>
Thursday, February 27, 2014 4:08 PM
Claude Aiken
RSVP Today: New Principles for a Progressive Broadband Policy
Sent:
To:
Subject:
Claude-Please join us for our upcoming panel: New Principles for a Progressive
Broadband Policy on March 13th at the Mayflower Renaissance Hotel to
discuss the recent FCC broadband regulation proposals.
The regulatory landscape governing the arrangements between broadband
providers and content providers is in flux. The D.C. Circuit recently struck down
certain portions of the FCC's Open Internet Order, and just this weekend
Netflix reportedly agreed to pay Comcast pursuant to a "peering arrangement"
to ensure Netflix's online videos are streamed smoothly.
In the wake of these developments, the FCC is contemplating the design of an
adjudication regime under its section 706 authority to resolve potential disputes
in the Internet space. PPI will host a panel of legal and economic experis to
offer their advice on (1) the proper objective of the case-by-case regime, and
(2) how enforcement of that regime would work in practice. Panelists will asked
to explain how their proposed solutions are consistent with stimulating
broadband deployment and innovation among content providers.
New Principles for a Progressive Broadband

Policy
March 13, 2014
9-11 a.m.
at
The Mayflower Renaissance Washington

Chinese Ballroom
1127 Connecticut Ave. NW
Featured Event Speakers

in, Duke Law School
Werbach, Wharton School, University of Pennsylvania
Hal Singer, Progressive Policy Institute
Ev Ehrlich, Progressive Policy Institute
M<::mdel, Progressive Policy Institute (Moderator)
Breakfast will be served at 9 a.m. and the panel will begin promptly at 9:30
a.m.
Make sure you follow the conversation on Twitter with #Open Internet. If you
are unable to join us in person, watch the live webcast of the event.
Regards,
Progressive Policy Institute
Stuart
. L:J
.
Instantly.
From:
Sent:
To:
Cc:
Subject:
Attachments:
Hanser, Russell < RHanser@wbklaw.com >

Jonathan Sallet; Henning Schulzrinne; Matthew DelNero; Claude Aiken
Tramont, Bryan; Jeffrey Campbell (campbell@cisco.com); Mary Brown
(marybrow@cisco.com)
Cisco Systems Ex Parte Letter
Cisco WBK Ex Parte Letter 042114 FINAL.pdf
All,
Attached please find the ex parte letter that Cisco Systems, Inc. filed today in connection with the
April 17 meeting regarding the Open Internet Remand matter.
Best regards,
Russ Hanser
WILKINSON) BARKER)
RUSSELL
P.
KNAUER.)
LLF
HANSER
PARTNER
2300 N STREET, NW
SUITE 700
MAIN 202.783.4141
DIRECT 202.383.3408
FAX 202.783.5851
RHANSER@WBKLAW.COM
WWW.WBKLAW.COM
This electronic message transmission contains information from the law firm of Wilkinson Barker Knauer, LLP which may be
confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the
intended recipient, be aware that any disclosure, copying, distribution, or use of the contents ofthis information is prohibited. If you
have received this electronic transmission in eiTor, please notify us by telephone at 202.783.4141 or by electronic mail
administrator@wbklaw.com immediately.
WILKINSON) .BARKER
KNAUER
LLP
2300 N STREET, NW
SUITE 700
TEL
202.783.4141
FAX
202.783.5851
WWW.WBKLAW.COM
RUSSELL P.
HANSER
April21, 2014
VIAECFS
44512thStreetSW
Re:
Open Internet Order Remand Proceeding (GN Dkt. No. 14-28)
Dear Ms. Dortch:

I am writing pursuant to Section 1.1206(b)(2) of the Commission's Rules to notify the
Commission that on Thursday, April 17, Mary Brown and Jeffrey Campbell, both of Cisco
Systems, Inc. ("Cisco"), as well as Bryan Tramont and the undersigned, both of Wilkinson
Barker Knauer, LLP, met with Jonathan Sallet, Henning Schulzrinne, and Claude Aiken of the
Office of General Counsel and Matthew DelNero of the Wireline Competition Bureau to discuss
the above-referenced matter.
During the meeting, Cisco noted that recent decisions made by foreign governments
threaten to undercut innovation and investment in the broadband Internet ecosystem. These
governments will be closely watching this proceeding as it unfolds in the United States. Cisco
emphasized that the "specialized services" exemption was an extremely important component of
the balance struck by Commission's 2010 Open Internet Order, and should be retained in any
future regime. Further, Cisco urged the Commission not to pursue a constricting definition of
"specialized services." Rather, in order to accommodate the quickly evolving and still-nascent
market for managed offerings, the Commission should focus on an approach that promotes the
development and deployment of specialized services that will benefit consumers without
impacting broadband Internet access services. Finally, Cisco discussed a proposal raised by staff
during the meeting that "specialized services" might be defined to include any IP-based services
that are not broadband Internet access service. Cisco stated that this approach could be workable
so long as it was applied flexibly to accommodate ongoing technological and market
developments.
WILKINSON
BARKER' KNAUER LLI'
Marlene H. Dortch
April21,2014
Page 2
Is/ Russell P. Hanser

Russell P. Hanser
cc:
Jonathan Sallet
Henning Schulzrinne
Claude Aiken
Matthew DelNero
Two pages withheld- not responsive and FOIA

Exemption 6
From:
FOIA Exemption 6
Sent: Thursday, Ja.riuary 23, 2014 3:52PM

To: Jonathan Levy
Cc: Evan Kwerel
Subject: Re: Hello!
That's a great quote from the net neutrality opinion. I'm taking Administrative Law this semester and after nvo
day so fat, it's been a fantastic course. We're learning to see agencies in a whole new light- we started the
course by looking at the evolution of the administrative state and the ebb and flow of societal and judicial
support for adininistrative agencies. Before the class, I took the existence and function of agencies for granted
and now I get to see what's at stake in debates over administrative discretion and how agencies fit in to the
overall scheme of government. Very interesting!
On Mon, Jan 20, 2014 at 2:38PM, Jonathan Levy <Jonatb.an.Levy@fcc.gov> wrote:

Greetings
FOIA Exemption 6
was
new Chief Economist, Tim Brennan, plucked out the following sentence from the
4
might be suitable for tee-shirts and coffee mugs (although I am not sure it is ready for bureaucratic prime time): "After all,
even a federal agency is entitled to a little pride."
How have you both been? Any current Lunch Club/intern news? There was a buzz around the law school about
the net neutrality decision.
Hope all is well and talk to you soon!
FOIA Exemption 6
Lunch lntem
From: Latoya Toles On Behalf Of WCBChlef

To: Julie Veach; Matthew DelNero; Michael Jacobs; Randy Clarke; carol Simpson; Kristine Fargotstein
Subject: Meeting on behalf of Hagon Lovells & Roku re: to discuss Roku's interest in the net neutrality proceedln
When: Wednesday, May 21, 2014 10:00 AM-11:00 AM (UTC-05:00) Eastern Tlme (US & canada).
Where: 5-6142
Good afternoon,
We would like to schedule a meeting with Chief Veach and the Bureau front office and Division staff working
on the Open Internet proceeding, who we understand includes the following people:
Matthew DelNero, Deputy Bureau Chief

Michael Jacobs, front office legal advisor
Randy Clark, Acting Chief of Competition Policy Division
Carol Simpson, Deputy Chief of Competition Policy Division
Kristine Fargotstein, Attorney Advisor in the Competition Policy Division
The topic of discussion will be Roku's interest in the net neutrality proceeding, as it relates to MVPD
authorization of Roku's over-the-top streaming set-top box platform. Please let me know if any of these slots
are available on May 21":
12:15p- 12:45p
l:OOp - 1:30p
1:45p-2:15p
4:45p - 5:15
In attendance, will be the following people:

Roku:
Stephen Kay, SVP and General Counsel
Steve Shannon, General Manager of Content and Services
Hogan Lovells:
Michele Farquhar
Praveen Goyal
Many thanks, in advance, for your time.
Kind regards,
Penny Johnakin
Assistant to P. Goyal, Esq.
Penny Johnakin
1\ssistant
Hogan L.ovolls US LL.P
Columbia Square
555 Thirteenth Street. NW
Washngton, DC 20004
Tel:
F<1x:
Email:
+ 1 202 637 5600

+1 202 637 7188
+1 202 637 5910
penny.johnakln@ hoganlovells.com
www.hoganlovells.com
P/eose consider the environment before printing this ems/1.
From: Nicholas Economldes [mailto:ecooomides@haas.berkeley.edu]

Sent: Monday, May OS, 2014 1:59AM
To: ECONOMIDES, Nicholas
Subject: NET Institute conference on May 9 at UC Berkeley
Reminder:
The NET Institute conference on network economics, two-sided markets, network
neutrality, and network formation will be at May 9 at UC Berkeley. Please see program at
http://www.netinst.org/2014 conference.htm and RSVP at
http://netinst2014.eventbrite.com .
Best,
Nick
**********************************************
Prof. Nicholas Economides.
Stern School of Business, NYU
44 West 4th Street, New York, NY 10012-1126
tel. (917) 776-8777, (212) 998-0864
mailto:ECONOMIDES @stem.nyu.edu
http://www .stem.nyu.edu/networks/
1
http://www .stern.nyu.edu/networks/cvnoref.html
and Haas School of Business, UC Berkeley
Executive Director, NET Institute
http://www .NETinst.orgf
http://www .facebook.corn!NET.inst
Selected works and sign up for notification of my new work:
http://works.bepress.com/economides/
**********************************************
From:
Sent:
To:
Cc:
Subject:
Gigi Sohn
'Katie McAuliffe'; Tom Wheeler
Ruth Milkman; Philip Verveer
RE: Net Neutrality Coalition Letter Attached
Thanks Katie!
From: Katie McAuliffe [mailto:kmcauliffe@atr.org]
Sent: Thursday, May 15, 2014 11:39 AM

To: Tom Wheeler
Cc: Ruth Milkman; Philip Verveer; Gigi Sohn
Subject: Net Neutrality Coalition Letter Attached
Attached and pasted below, Please find a coalition letter regarding the Net Neutrality Notice of Proposed Rule Making.
The undersigned respectfully request that the Federal Communications Commission not move forward with new Net
Neutrality rules. Congress is in the midst of working on a Telecom Act rewrite that we expect to provide the FCC with
direction on its role in promulgating regulation.
We thank you for your consideration,
Katie McAuliffe
Executive Director for Digital Liberty
Federal Affairs Manager
Americans for Tax Reform
Office: 202-785-0266
Blog: Digitalliberty.net
Twitter: @Digitalliberty
The Honorable Thomas Wheeler

Chairman, Federal Communications Commission
The Honorable Fred Upton
Chairman, Committee on Energy and Commerce
2183 Rayburn House Office Building
The Honorable Jay Rockefeller
Chairman, Committee on
Commerce, Science, & Transportation
531 Hart Senate Office Building
The Honorable John Thune
1
Ranking Member, Committee on

Commerce, Science, & Transportation
511 Dirksen Senate Office Building
May 15,2014
Dear Messrs:
The discussion on Net Neutrality has moved away from what consumers actually want and need almost entirely into
the political realm. What we need in our Internet infrastructure is not necessarily what some call a fast lane or a
slow lane, but an efficient allocation of resources, so that all applications appear searnlessly to the end user. Absent
. convincing evidence of a market failure or demonstrable consumer harm, network management should remain a
free-market contract negotiation of sorts, and not end up looking like government controlled phone service
infrastructure or of broadcast/ cable content regulation.
For the past decade, activists with a political agenda have pushed the increasingly oudandish conspiracy theory that
in the absence of immediate and pervasive federal regulation broadband Internet will be destroyed by the
companies supplying it. Unfortunately, the FCC appears to be bending to such pressure to rush through yet
another iteration of complex, unnecessary and legally questionable net neutrality rule making. We therefore
respectfully call on Congress to assert its authority concerning the FCC's role, and ask the FCC to await
further action from Congress.
In Verizon the D.C. Circuit Court interpreted Section 706 of the 1996 Communications Act so as to give d1e agency
authority to adopt new net neutrality rules, as long as these rules do not impose common carrier obligations on
ISPs. The court's ruling may even provide the FCC with new powers to regulate Internet services beyond
broadband infrastructure, such as "edge providers." The only real limit is that the FCC can't overdy treat Internet
services as common carriers. But this limit may mean litde.
Importantly, section 706 was not intended by Congress to constitute an independent grant of affirmative regulatory
authority. This was the Commission's own understanding of Section 706 as well until the agency switched its view
after its first foray into net neutrality regulation met with defeat in ConJCast Cmp. v. FCC.
Additionally, the court merely held the no-blocking and no-discrimination net neutrality rules unlawful; the court
did not purport to define the boundaries of the Commission's Section 706 authority or adjudicate any particular
exercises of such authority. The court did not require the agency to adopt any new regulations. Under all the
circumstances - and especially the circumstance that there is no evidence of a present market failure or consumer
harm resulting from Internet provider practices- there is no reason for the Commission to move forward at this
time to adopt new net neutrality or net neutrality-like rules.
While some call for the FCC to use the "nuclear option" of Tide II, we again urge Congress to clarify its intent with
regards to the FCC's regulatory authority and for the FCC to wait for that direction from Congress.
The primary problem with Tide II regulation of the competitive broadband industry is that it would abrupdy
decelerate the speed of Internet innovation to the speed of government- a regulatory regime that is as slow as the
slowest part of d1e FCC's filing and public comment process.
Tide II of the Communications Act is meant to deal with government-granted, government-regulated
monopolies. The old bargain for what were once thought to be "natural monopolies" was that in order to
encourage large, capital-intensive investments in utilities such as water, electric, or old-fashioned telephone
infrastructure, government would grant a monopoly to a single provider who agreed to build very expensive
2
infrastructure. Once built, these government-protected, government-regulated monopolies would be granted a

guaranteed "rate of return" on their investments, but be forbidden from charging their customers monopoly prices.
The FCC definitively moved the Internet away from Title II reg-qlations in 1998, when Clinton-appointed FCC
Chairman William Kennard rejected the same Title II arguments being made today in that year's report to Congress:
"Ciassijjing Intermt access seroices as teleconmmnications sen1ices could have significant consequences for the
global developnmtt if the Internet. We recognize the unique qualities if the Internet, and do not prwtme that
legary regulatory franmvorks are appropriatefy applied to it."
While the expansion of 706 authority would likely affect edge providers, Title II reclassification would likely apply
to all aspects of transmission via Internet. Any business providing over-the-top services, including search, voice,
video and email, would likely come under Title II regulation- a dramatic expansion of restrictive regulation. We do
not believe the FCC's "forbearance" authority would be efficient for determining the applicability of provisions of
Title II to all of these services. Tlus uncertainty would embroil the industry and the FCC in a slew of legal battles,
and volatile market uncertainty that would dramatically harm infrastructure investment and capital expenditures.
In consideration of the vibrant Internet market of both service providers and over-the-top services, we sub:niit that
no market failure or real harm to consumers has been adequately demonstrated to support any expansion of FCC
authority over the Internet. We urge Congress to act expeditiously in expressing its understanding of the
proper role of the FCC in regard to regulating the Internet, and urge the FCC to wait for Congressional
direction.
Regards,
Americans for Tax Reform
American Commitment
American Conservative Union
Americans for Prosperity
Competitive Enterprise Institute
Center for Individual Freedom
Digital Liberty
FreedomWorks
Institute for Liberty
Institute for Policy Innovation
Less Government
MediaFreedom
National Taxpayers Union
N etCompetition
Taxpayers Protection Alliance
From:
Sent:
To:
Cc:
Subject:
Harold Feld <hfeld@publicknowledge.org>

Friday, April 25, 2014 5:06 PM
Sharina Smith
Jonathan Sallet; Philip Verveer; Michael Weinberg
Net Neutrality Meeting Request
Jon, Phil:
I'd like to request a meeting on the upcoming network neutrality item with you both, although I am happy to do
two separate meetings if that makes the scheduling easier. I'd like to cover (a) our overall concern with paid
prioritization, and (b) if the FCC is going to permit paid prioritization, what specific issues it ought to seek to
address in the NPRM (especially with regard to issues in the existing data roaming regime).
Thanks. I've included Michael Weinberg, our network neutrality point person, on this email.

1818 N St. NW, Suite 410 I Washington, DC 20036
From:
Sent:
To:
Cc:
Subject:
Attachments:
David Toomey
Milkman; Gigi Sohn; Daniel Alvarez; Jonathan Sallet; Philip Verveer; Julie
Veach; Shannon Gilson; Mark Wigfield; Neil Grace; Kim Hart
Sara Morris
FW: Letter to Chairman Wheeler
Ayotte fischer coats NN letter to FCC.pdf
Attached is a letter from Sens. Ayotte, Fischer and Coats requesting a delay in the 01 proceeding.
From: Seidman, Rob (Ayotte) [mailto:Rob Seidman@ayotte.senate.gov]

To: Ruth Milkman; Sara Morris; David Toomey
Cc: Quiello, Michael (Coats); Lynch, Josh (Fischer)
Subject: Letter to Chairman Wheeler

David, Sara, Ruth:
Attached is a letter to Chairman Wheeler from Senators Ayotte, Fischer and Coats.
Rob
tlnitcrl cStotcs cScnotc

May 14,2014
Chairman
445 12th Street, SW
We write to express our strong reservations with the Federal Comm:unications
Commission proceeding to a vote on proposing net neutrality rules at its May 15, 2014 meeting.
Both the Commission and Congress should have sufficient time to review any proposal on net
neutrality prior to further action.
Commissioners Jessica Rosenworcel and Ajit Pai have both called for a delay of the
vote. Our understanding, as reported by Politico, is that minority members of the Commission
have been kept in the dark about your revised net neutrality proposal. Transparency is
paramount in this process, and forcing through regulations in a non-transparent way does a
disservice to consumers, businesses, and American taxpayers.
To date, the commission has received over 35,000 public comments since your original
proposal was first made public. We believe a more thorough examination of your proposal,
including a rigorous economic analysis, is required.
Additionally, we believe the complexity and unprecedented nature of the upcoming
broadcast incentive auction warrants the Commission's full and undivided attention at this
critical time. This is necessary to ensure the bipartisan congressional mandates contained in the
Public Safety and Spectrum Act of2012 are properly executed.
Thank you for your prompt consideration. We look forward to working with you on this
and other important challenges facing the Commission.
Sincerely,
Deb Fischer
United States Senator
Dan Coats
From:
Sent
To:
Subject:
Shannon Gilson
April 29, 2014 7:55 PM
Milkman; Jonathan Sallet; Philip Verveer; Gigi Sohn; Sara Morris; Daniel
rez; Neil Grace; Mark Wigfield
Fw: National Journal and Ars Technica
From: shannon gilson [mailto:gilson.shannon@gmail.com]

To: Shannon Gilson
Subject: National Journal and Ars Technica
National Journal: FCC Chief Vows No Internet 'Slow Lanes'

Tom Wheeler defends his proposed net-neutrality rules
By Branda Sasso
The chairman of the Federal Communications Commission is trying to ease fears that he is caving on net
neutra lity.
In a blog post Tuesday, Tom Wheeler said his proposed rules would put the FCC "on track to have tough,
enforceable Open Internet rules on the books In an expeditious manner, ending a decade of uncertainty and
litigation."
Wheeler has come under fire from liberal lawmakers and consumer advocacy groups after floating new rules
that would allow Internet service providers to charge websites for faster service as long as the arrangements
are "commercially reasonable." Critics argue th.a t allowing "fast lanes" would tilt the Internet in favor of the
largest corporations and stifle new Internet start-ups.
Democratic Sen. AI Franken said Tuesday that allowing pay-for- priority deals would "destroy" the open
Internet.
But Wheeler vowed that under his rules, it "won't be possible for an Internet
available to all.''
to degrade the service
He said the debate over "fast lanes" misses the point. His rules would ensure that the Internet is "sufficiently
robust" for consumers to access whatever content and applications they want, he said.
"Degrading service in order to create a new 'fast lane' would be shut down," Wheeler said.
FCC Chairman Tom Wheeler has thus far declined to reclassify broadband as a telecommunications service,
which would open Internet service providers up to common carrier regulations under Title II of the
Communications Act. Today, he wrote that he won't hesitate to do so, although this still seems to be an
unlikely possibility.
When proposing network neutrality rules that prevent ISPs from blocking websites while allowing them to
charge Web services for a faster path to consumers; Wheeler set aside calls to declare ISPs common carriers.
His proposal came after a federal appeals court overturned the FCC's original anti-discrimination and antiblocking rules, ruling that the FCC imposed common carrier obligations on providers that it had not classified
as common carriers.
Wheeler defended his proposal today while stressing that it's not the only option.
"I do not believe we should leave the market unprotected for multiple more years while lawyers for the
biggest corporate players tie the FCC's protections up in court.
Notwithstanding this, all regulatory options remain on the table," Wheeler wrote in a blog post. "If the
proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, 1
won't hesitate to use Title II. However, unlike with Title II, we can use the court's roadmap to implement Open
Internet regulation now rather than endure additional years of litigation and delay."
"If we get to a situation where arrival of the 'next Google' or the 'next Amazon' is being delayed or deterred,
we will act as necessary using the full panoply of our authority," he also wrote. "Just because I believe strongly
that following the court's roadmap will enable us to have rules protecting an Open Internet more quickly, does.
not mean I will hesitate to use Title II if warranted."
Wheeler said criticism of his proposal has been unfair:
There has been a great deal of discussion about how our proposal to follow the court's roadma.p will result in a
so-called "fast lane" and Internet "haves" and "have-nots." This misses the point. The proposed rule is built to
ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the
content, services, and applications they demand, as well as an Internet that offers innovators and edge
providers the ability to offer new products and services.
Wheeler said he will make sure any agreements between Web services and ISPs are "commercially
reasonable. 11 He laid out what he thinks is not commercially reasonable in today's post:
3
Mindel DelaTorre
Thursday, April 24, 2014 9:27AM
Philip Verveer; Diane Cornell
FW: FCC Undercuts Net Neutrality In New Proposal
From:
Sent:
To:
Subject:
From: Today's General Counsel [mailto:topstories@todaysgc.com]
Sent: Thursday, April 24, 2014 9:24AM

To: Mindel DelaTorre
$ubject: FCC Undercuts Net Neutrality In New Proposal

Having trouble viewing this email? Click here
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Top Stories
Thursday, April24, 2014
FCC Undercuts Net Neutrality In New

Proposal
==-
==--=-
From: Today's General Counsel
In a policy reversal, the FCC indicated it will propose a new

rule that would undo 'net neutrality' by allowing Internet
providers to charge companies more for faster data
transmission.
Read more...
Court Rules Search Engine Results Are Free

Speech
From: Arent Fox
A district court rules against plaintiffs who said a search

engine was shutting them out. The decision likens a search
algorithm to an editor.
Read more...
7o acivert:se in TGC's daily email newsieiier. click here or e:n<.lll
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Today's General Counsel ; 640 Park Ave. ! Hinsdale : IL l 60521
From: June Marie Sobrito [mailto:jsobrito@smpte.org]

To: Matthew DelNero
Subject: RE: ETTA 2014- Important Information!

Matt,
Thanks very much for the bio and photo. Can you approve the copyright release? You can either email it back to me
signed or just agree to the terms in an email to me.
Also, are you providing a PowerPoint? Do you have any specific audio-visual require merits?
Thanks,
June
From: Matthew DelNero [mailto:Matthew.DeiNero@fcc.gov]

To: June Marie Sobrito
Subject: RE: ETIA 2014- Important Information!
Hi June,
Thanks for following up, and please accept my apologies for the delay in getting back to you. I've attached a Word
document with a bio and photo included. Please just let me know if you need anything else.
Best wishes,
Matt
Matthew 5. DelNero
Deputy Bureau Chief
Wireline Competition Bureau, FCC
Tel: 202.418.7433
Email: matthew.delnero@fcc.gov
Sent: Wednesday, May 14, 2.014 9:34AM

To: Matthew DelNero
Subject: RE: ETIA 2014- Important Information!
Hi Matt,
Just following up. Can you send me a brief bio and headshot?
Thanks,
June
June Marie Sobrito

Executive Assistant
Society of Motion Picture & Television Engineers
3 Barl<er Avenue Fl5, White Plains, NY 10601 USA
www.smpte.org
T1 (914)20523841:\1 II
(914)761-3115
jsobrito@smpte.org
From: Matthew DelNero [mailto:Matthew.DeiNerci@fcc.gov]

To: June Marie Sobrito
Cc: Burger, James M.; Joel Welch
Subject: RE: ETIA 2014- Important Infonnation!
-----------
June,
Thanks very much. I look forward to participating and will be back in touch with the requested information.
Best wishes,
Matt
Sent: Tuesday, May 06, 2014 10:14 AM

To: Matthew DelNero
Cc: Burger, James M.; Joel Welch
Subject: ETIA 2014- Important Infonnation!
Dear Mr. DelNero,
Thank you for being part of SM PTE's Entertainment Technology in the Internet Age conference developed in partnership
with the Stanford Center for Image Systems Engineering. The event will be held at Stanford University on 17- 18 June
2014. We appreciate your support of this important one-of-a-kind industry event.
I believe Jim has already requested your brief bio (150 words or less) and headshot. If you could send those to me, that
would be great.
Attached is the ETIA 2014 copyright release form. This form allows SMPTE to create and distribute presentation PDFs to
conference delegates. This form also authorizes SMPTE to capture video of your presentation. Please sign and either
email or fax it back to me. Or, you may simply agree to the terms in an email to me.
Please let me know if you have any questions and thanks again for your support.
Regards,
June
June Marie Sobrito

Exec,;tive Assistant
Socie.ty of Motion Picture & Television Engineers
3 Barker Avenue FIS, White Plains.
10601 USA
\w.rw.smple.org
T +1 (914) 205 23841 !\i .; I (UJ4l $t)(> 224() IF +1 (914) 761-3115
jsobrito@smple.org
Not Responsive
'
'
*
'"::"'
*-
'
'
Subject:
Location:
Meeting with Level 3 re. OI (DA,PV,DQ

conf. room #3 (8-a245)
Start:
End:
Show Time As:
Tue 4/22/2014 4:00 PM

Tue 4/22/2014 4:30 PM
Tentative
Recurrence:
(none)
Meeting Status:
Not yet responded
Organizer:
Required Attendees:
Kim Mattos
Daniel Alvarez; Philip Verveer; Diane Cornell
4/22Confirmed for 4pm and moved meeting from conf. room #I to conf. room #3 (8-a245). Thank you. -k
4/22-
Hi, Phil and DianeDaniel asked me to invite you to a meeting with Level 3 today. They're supposed to come in at 3:30pm, but I have
proposed a move to 4pm, per Daniel's request; awaiting their response. Thank you. -k
Hi DanielPer your request, a meeting has been scheduled. Thank you. -k
From: Cavender, Joseph [mailto:Joseph.Cavender@Leve13.com]

To: Daniel Alvarez
Subject: Open Internet ex parte request
Hi Dan,
1 hope everything is going well. I'd like to request an ex parte meeting to talk about Level3's perspective on the Open
Internet proceeding. As you may have seen from the filings in the docket, Level3 is very supportive of the Commission
taking action on this, and we are particularly focused on the need to address interconnection or "peering" issues. I think
we can be a useful resource on this, and, in that vein, I'd propose bringing in Marcellus Nixon, who is responsible for
negotiating all of Level3's Internet peering relationships around the world.
1know various folks have met with different people from the Chairman's office on these issues, so if I should be reaching
out to someone else, please just let me know and I would be happy to do so.
Thanks very much.
Best,
Joe
Joseph C. Cavender
Vice President, Federal Affairs
1220 L Street NW Suite #660
Washington DC 20005
p: 571.730.6533
e: joseph.cavender@level3.com
THIS MESSAGE MAY BE ATTORNEY-CLIENT OR OTHERWISE PRIVILEGED. IF YOU BELIEVE YOU RECEIVED THIS MESSAGE IN ERROR,
PLEASE DELETE IT AND NOTIFY ME. THANK YOU.
From:
Sent:
To:
Subject:
Gigi Sohn
FOIA Exemption Ruth Milkman; Philip Verveer; Jonathan Sallet; Renee Gregory; Daniel Alvarez; Maria
Kirby; Meribeth McCarrick; Shannon Gilson; Sara Morris; Neil Grace; Mark Wigfield;
Diane Cornell; Kim Hart
FW: FCC inches Closer to Net Neutrality Rules, Not There Yet
61
-------------------------------
From: Bartees Cox, Jr. -[mailto:bartees=publicknowledge.org@mail79.atl51.rsgsv.net] On Behalf Of Bartees Cox, Jr.

To: Gigi Sohn
Subject: FCC inches Closer to Net Neutrality Rules, Not There Yet
Is this email not displaying correctly?

View I! in your browser.
More infonnation available at publicknowledae.oro/press
Public Kno\rvledge
Contact: Bartees Cox (o) 202-861-0020
(c) 202-815-6457
For Immediate Release

May 15,2014
FCC Inches Closer to Strong Net Neutrality Rules, But Not There Yet
Today, the Federal Communications Commission (FCC) introduced their proposal for new net neutrality
rules. While these rules to appear to represent a response to public outcry in support of net neutrality,
they do not go far enough.
The following can be attributed to Michael Weinberg, Vice President at Public Knowledge:
"This proposal from the FCC proves that the public is having an impact. After extensive public outcry, the
FCC is asking questions about the fundamental legitimacy of fast lanes and exploring the viability of Title
II. This shift simply would not have occurred without the outpouring of concern from organizations,
companies, Members of Congress, and individuals who rely on a truly open internet every day.
"Despite this response, we are convinced that the net neutrality pathway the FCC is exploring remains
insufficient to guarantee a truly open and neutral internet. The FCC's proposal still falls well short of real
net neutrality rules. It would create a two-tier Internet where "commercially reasonable" discrimination Is
allowed on any connections that exceed an unknown "minimum level of access
by the FCC. A
two-tier internet Is anathema to a truly open Internet, and rules under section 706 authority are Insufficient
to prevent harniful paid prioritization.
"This will be the summer of net neutralio/. Net neutrality supporters will make It clear to the FCC and
Congress that only robust net neutrality rules that prevent paid prioritization, grounded In clear Title II
authority, will suffice. Any rules that allow for harmful discrimination cannot truly be called net neutraHty.
And any rules based on creaky legal authority are just a waste of everyone's time.
This release Is linked here.
###
Public Knowledge Is a Washington D.C.- based public Interest group working to defend consumer rights
in the emerging digital culture. More Information Is available at htto:l/www.publlcknowledge,org
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From:
Sent:
To:
Subject:
Jonathan Levy
Chuck Needy
FW: presentation in 2010
Hi Chuck:
Do you know if we have a recording of this by any chance?
Thanks.
Jonathan
From: Waterman, David H. [mailto:waterman@indiana.edu]
Sent: Thursday, January 09, 2014 12:48 PM
To: Jonathan Levy
Subject: presentation in 2010
Hi Jon, in response to an inquiry I got, do you know if there happens to be an available video recording of the
presentation at the commission I made about lessons for network neutrality from cable television on Feb. 25, 2010?
Hope things are well, David
From:
Sent:
To:
Subject:
Jonathan Levy
'Waterman, David H.'
RE: presentation in 2010 MY BAD
Hi David:
I am so sorry that your inquiry fell through the cracks of my vast email system. I will look into this immediately although I
am pretty sure the answer is "no."
Hope you and your family are well.
Jonathan
From: Waterman, David H. [mailto:waterman@indiana.edu]

Sent: Thursday, January 09, 2014 12:48 PM
To: Jonathan Levy
Subject: presentation in 2010
Hi Jon, in response to an inquiry I got, do you know if there happens to be an available video recording of the
presentation at the commission I made about lessons for network neutrality from cable television on Feb. 25, 2010?
Hope things are well, David
From:
Sent:
To:
Subject:
Congressional Internet Caucus AC <icac@netcaucus.org>

Thursday, May 15, 2014 11:50 AM
Stephanie Weiner
Rayburn Debate on FCC Net Neutrality I Spectrum Plans- Lunch Friday 5/16
Dear Stephanie,
You are invited to Friday's lunch briefing on ....
The FCC's Grand Internet Plans: "Net Neutrality" and Massive Mobile Spectrum
Auctions: What Do You Need to Know?
Today the Federal Communications Commission (FCC) unveiled two major plans that may significantly affect the growth
and vibrancy of the Internet (FCC announcement here). You have undoubtedly heard about "Net Neutrality," also called
Open Internet, and the broadcast Spectrum auctions.
We have assembled a balanced panel of experts to explain these FCC plans and to provide some analysis on what
Members of Congress need to know and what they expect will happen next {boxed lunch will be served). Join this
important briefing on Friday, May 16 at 12:00 pm in the Rayburn House Office Building. The FCC's actions include 1) The
agency's new "Open Internet" Rules and 2) The auctioning of the prime slice of broadcast spectrum necessary to the
Mobile Internet.
Together with the Congressional Internet Caucus we share the fervent belief that the Internet is a powerful platform for
communications, commerce and democracy. These two issues are extremely important to the evolution of the Internet
and the FCC's plans will generate a lot of discussion.
Date: Friday, May 16, 2014
Time: 12:00 pm - 1:20 pm
Location: Rayburn House Office Building, Room 2226
RSVP: Register via EventBrite (Please: Only RSVP if you will attend)
Speakers on the Open Internet/Net Neutrality Plan
Matthew Brill, Partner, Latham & Watkins [Biol

Markham Erickson, Partner, Steptoe & Johnson [Biol
Gus Hurwitz, Assistant Professor of Law, University of Nebraska College of Law [Bio]
Sarah Morris, Senior Policy Counsel New America Foundation [Bio]
Speakers on the Spectrum Auction Plan
Allison Remsen, Executive Director, Mobile Future [Bio]

Tim Donovan, Competitive Carriers Association [Bio forthcoming]
This widely attended educational briefing is hosted by the Congressional Internet Caucus Advisory Committee (ICAC),
part of a 501 (c)(3) charitable organization. Congressional staff and members of the press welcome. The ICAC is a private
sector organization comprised of public interest groups, trade associations, non-profits, and corporations. The ICAC takes
no positions on legislation or regulation. Rather, it's a neutral platform where thought leaders debate important technology
1
issues that shape legislative and administration policy in an open forum. We vigilantly adhere to our mission to curate
balanced and dynamic debates among Internet stakeholders. Our volunteer board members ensure that we dutifully
execute that mission. More information on the !GAG is available at www.netcaucus.org.
This e-mail was sent from Internet Education Foundation (Congressional Internet Caucus AC ) to
Stephanie.Weiner@fcc.gov.
To unsubscribe, please click on this link and follow the instructions: Unsubscribe
0
Kirk Burgee
Public Knowledge < pk@publicknowledge.org >
Thursday, April 24, 2014 11:44 AM
Thomas Spavins
Net Neutrality Takes A Hit
From:
Sent:
To:
Subject:
pU bl.IC

nowled e
Net Neutrality Takes A Hit
Dear Thomas,
Yesterday, the FCC took a big step back from net neutrality. Instead of
establishing firm net neutrality rules, they proposed new rules that
guarantee the opposite; internet discrimination.
The new rules allow internet service providers, like Verizon or Comcast, to
accept payment from content providers, like Netflix, Skype, or Disney, for
preferential treatment. That means consumers will have better access to
powerful websites with more money.
Public
""ledge
Pay-to-play is not net neutrality, and it has serious consequences for an

innovative and equal internet environment. For the FCC to save the open
internet, they need to reclassify the internet as a Title II
"telecommunications service" . It's time to update the way the FCC looks at
the internet and put rules in place to preserve fairness and openness.
Public Knowledge will continue to f ight for net neutrality, but we can't
do it alone. Please consider making a contribution to help us fight the good
fight. And continue to follow us on Twitter @publicknowledge for updates.
Tweet This: Pay-to-play is NOT net neutrality. Time for the #FCC to
preserve an open Internet! #NetNeutrality http://bit.ly/1hp6hil
We are working on cleaning up our em ail lists and you may receive duplicate
emails. Please excuse the inconvenience. We hope to have this resolved quickly.
Forward this email

., rn, tNJ EnwH from
ConsttrltConfrxt"
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' )I
Kirk Burgee
From:
Public Knowledge < pk@publicknowledge.org >

Friday, M arch 28, 2014 10:10 AM
Alison Neplokh
The Future of Open Internet
Sent:
To:
Subject:
Public
owl edge
What's Ahead for the Open Internet
Dear Alison,
In the coming weeks, the FCC will be making some important
decisions about the open internet.
The DC Circuit Court's decision in January to overturn the FCC Open
Internet Rules left the FCC commissioners to find a way to implement
meaningful net neutrality protections. They collected comments on this last
week, including comments from Public Knowledge.
The best course of action for the FCC to regain their ability to enforce net
neutrality is to reclassify the internet as a Title II "telecommunications
service". However, preserving an open internet goes beyond just net
neutrality.
Public Knowlcdg
Throughout the FCC phone transition process, stakeholders have agreed

that the five principles established by Public Knowledge must be
maintained: service to all Americans , competition and interconnection,
consumer protection, network reliability, and public safety. These
principles should also guide the FCC's process towards an open internet.
In the coming months, we expect the FCC to release their plan for open
internet and ask the public to comment on their proposal. While net
neutrality is an essential part of open internet, the values of a truly open
internet are broader. We need to tell the FCC that all of these values
must be maintained.
Public knowledge will continue to fight for open internet, but we can't
do it alone. Follow us on Twitter @publicknowledge and on our blog for
updates. And please consider making a contribution to help us continue to
fight the good fight.
Tweet This: RT @publicknowledge: The #FCC needs to get open internet
rules right! Here's how. #Open Internet #NetNeutrality http://ctt.ec/8 NIYO+
We are working on cleaning up our email lists and you may receive duplicate
emails. Please excuse the inconvenience. We hope to have this resolved quickly.
Forward this email
Tty Jt f l toddy
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From:
Sent:
To:
Subject:
Attachments:
Gigi Sohn
ay, May 15, 2014 3:35 PM
onathan Sallet; Kim Hart; Ruth Milkman; Philip Verveer; Diane Cornell; Renee
Gregory; Maria Kirby; Mark Wigfield; Shannon Gilson; Daniel Alvarez; Neil Grace; Kim
Hart; Meribeth McCarrick
FW: Centurylink media statement Net neutrality rules must not harm consumers
CTL Net Neut:ality Media Statement FINAL 15May2014.docx
From: Newman, Melissa [mailto:Melissa.Newman@Centurylink.com]

To: Gigi Sohn; Daniel Alvarez
Subject: Centurylink media statement: Net neutrality rules must not harm consumers
Here's our press statement
Melissa
MEDIAST TEME T
Centurylink
news.centurylink.com I centurylink.com
Facebook.com/Centurylink I @Centurylink
FOR MORE INFORMATION CONTACT:
May 15, 2014
Linda M. Johnson, 202-429-3130

linda.m.johnson@centurylink.com
CenturyLink: Net neutrality rules must not harm consumers
WASHINGTON- Please attribute the following statement on the Federal Communications

Commission's actions today proposing new net neutrality rules to CenturyLink, Inc. (NYSE: CTL)
Executive Vice President for Public Policy and Government Relations Steve Davis:
"CenturyLink's network is built so customers can access the Internet whenever, wherever and however
they choose. We strongly support a vibrant and open Internet. We believe that above all else, any
regulation of the Internet must help, nothann consumers. This means both assuring openness, as well
as assuring that the Internet continues to grow to meet rapidly escalating customer demand. Customers
who want higher speeds or better performance levels should be allowed to pay for them, but
regulations should not require those who don't want higher speeds or increased performance levels to
pay the same rates as those who do."
About CenturyLink
CenturyLink is the third largest telecommunications company in the United States and is recognized as
a leader in the network services market by technology industry analyst firms. The company is a global
leader in cloud infrastructure and hosted IT solutions for enterprise customers. CenturyLink provides
data, voice and managed services in local, national and select international markets through its highquality advanced fiber optic network and multiple data centers for businesses and consumers. The
company also offers advanced entertainment services under the CenturyLink Prism TV and
DIRECTV brands. Headquartered in Momoe, La., CenturyLink is an S&P 500 company and is
included among the Fortune 500 list of America's largest corporations. For more infonnation, visit
www.centurylink.com.
###
From:
Sent:
To:
Subject:

Jonathan Sallet; Gigi Sohn; Philip Verveer; Ruth Milkman
FW: Comcast Blog: FCC Begins Open Internet Rule Process
fyi
From: Fitzmaurice, Sena

To: Fitzmaurice, Sena
Subject: Comcast Blog: FCC Begins Open Internet Rule Process
FCC Begins Process to Establish Strong, Legally Enforceable Open Internet Rules
By David L Cohen, Executive Vice President
Today, the FCC voted to take the first step in what will be a months long comment and review process to establish
strong, legally enforceable Open Internet rules. As Commissioners noted, this Notice of Proposed Rulemaking (NPRM) is
just an initial step to examine what the rules should ultimately be, and there will be significant time to study the NPRM,
and for public input and comment before the final rules are voted on by the Commission later this year.
Comcast remains committed to a free and open Internet and working with the FCC on appropriate rules for all players
across the industry. Currently, Comcast is the only company in America that is legally bound by the FCC's now vacated
Open Internet rules. And we've promised to extend the Open Internet rules to millions of new customers in cities from
New York to Los Angeles through our transaction with Time Warner Cable.
A free and open Internet stimulates competition, promotes innovation, fosters job creation, and drives business. We
supported the FCC's 2010 Open Internet rules because they struck the appropriate balance between consumer
protection and reasonable network management rights for ISPs. Our customers want asecure and open Internet, we
are committed to delivering on our promise to ensure that experience, and we are comfortable supporting appropriate,
legally enforceable open Internet rules.
We remain confident that the Commission will continue to appropriately balance its strong commitment to consumer
protection with the need to allow network operators to manage their networks reasonably and to continue to
encourage private investment in our nation's broadband infrastructure. As strongly as we believe in the propriety of
legally enforceable open Internet rules, however, we have an equally strong belief that any proposal to reclassify
broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark
massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption,
and kill jobs in America.
For over a decade, Commissions and Administrations led by both parties have consistently ruled that common carrier
regulation does not (and should not) apply to the broadband Internet industry. As a result, cable operators and other
Internet service providers have invested hundreds of billions of dollars to deploy increasingly robust broadband
networks, laying the groundwork for an explosion of innovation in the Internet ecosystem, and fostering the creation of
millions of jobs. Any effort to upend this legal framework would most certainly be subject to years of litigation with
uncertain outcomes that would risk decreased investment and derail the American economic success story.
1
We look forward to working with Chairman Wheeler and the Commissioners to play a constructive role in finding an
appropriate regulatory balance going forward that will ensure the Internet remains vibrant and open for all Americans.
For more information about Comcast's commitment to net neutrality visit:
http://corporate.comcast.com/twctransaction/net-neutralitv-together
From:
Sent:
To:
Gigi Sohn
May 15, 2014 3:08 PM
Milkman; Philip Verveer; Jonathan Sallet; Renee Gregory; Diane Cornell; Maria
Daniel Alvarez; Shannon Gilson; Kim Hart; Neil Grace; Mark Wigfield; Sara Morris;
Meribeth McCarrick
FW: NetCompetition Statement on FCC Open Internet NPRM
Subject:
From: Scott Cleland [mailto:scleland@precursor.com]

To: Gigi Sohn
Subject: NetCompetition Statement on FCC Open Internet NPRM
Having trouble reading this email? View it in vour
Scott Cleland
Twitter @SCiefand
Precursor Bfog
Netcomgetition
r;1
LJ
NetCompetition Statement on
FCC Open Internet NPRM
NetCompetltlon
May 15,2014
Contact: Scott Cleland -- 703-217-2407
FCC Consideration of Title II Broadband Regulation is a Blueprint for
Uncertainty
Encouraging Kilobit Regulation is No Way to Encourage a Gigabit Internet
Future
Title II Regulation Threatens to Slow Internet Upgrades to the Slow Speed of
Government
WASHINGTON D.C. -The following quotes on the FCC vote on an Open Internet NPRM
may be attributed to Scott Cleland, Chairman of NetCompetition:
o
o
o
FCC consideration of Title II broadband regulation is a blueprint for

unnecessary uncertainty.
Encouraging kilobit regulation is no way to encourage a Gigabit Internet future.
Rather than voting to quickly restore operative net neutrality rules, the FCC
has chosen the path of maximal uncertainty for everyone. The FCC cannot put
the Internet's infrastructure at grave risk without endangering-the entire
1
ecosystem built on top of it with grave risk and uncertainty as well.

The primary problem of Title II regulation is it would abruptly decelerate the
fast-speed of Internet business to the slow-speed of government. At core, Title
II is a "Mother may I?" regulatory regime that is as slow as its slowest part.
What could take hours or days to accomplish in business time could take
several months or even years in FCC Title II time.
Practically Title II regulation would require every business decision of
consequence to be approved by the FCC-- i.e. changes in services, prices,
terms, conditions, or infrastructure. Ironically, the obvious unil}tended
consequence here would be to put the American part of the Internet in the
slowest lane filled with interminable speed bumps, potholes, stop lights, and
inspection stations.
Snicon Valley's opposition to "commercially reasonable" market negotiations
for high-volume video streamingr because they want the FCC to create a
permanent zero-price entitlement for downstream Internet traffic, is the height
of adstechratic hubris and entitlement, because the richest, least regulated,
and least taxed sector is seeking massive and hidden government pricing
subsidies at the expense of American consumers.
e-forum representing broadband

NETCompetition.org is a
interests. See www.netcompetitign.org.
###
About Scott C!e!anq
Thanks,
Scott Cleland
President, Precursor LLC
Searcl1 CJ!.\9 Destrov:
Y:LtlY. You Can't Trust Goqg!JOG.

NETCompetition
1615 L St. NW, Suite 1000
Washington, District of Columbia 20036
(202) 828-7800 www.orecursor.corn info@precursor.corJ!
Subscribe to Newsletter!
gigi.sohn@fcc.gov. T\J
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click here
From:
Sent:
To:
Subject:
Ruth Milkman
Thursday, April 24, 2014 5:52 PM
Jonathan Sallet; Philip Verveer
FW: Obama's past stance in conflict with net proposal
From: POLITICO Pro [mailto:politicoemail@politicopro.com]

To: Ruth Milkman
Subject: Obama's past stance in conflict with net proposal
Obama's past stance in conflict with net proposal

ByTonyRomm
4/24/14 5:48PM EDT
An FCC net neutrality plan that could empower Internet providers to charge Netflix, Amazon, Facebook and
others for faster service has posed new political headaches for President Barack Obama and a sharply divided
Capitol Hill.
During his first presidential campaign, Obama explicitly rejected the possibility that "gatekeepers" someday
could "charge different rates to different websites" - a system, he said, that "destroys one of the best things
about the Internet- which is that there is this incredible equality there."
Obama' s 2007 comment seems at odds with the so-called fast lanes that might result from the open Internet
proposal from FCC Chainnan Tom Wheeler. But the president still "strongly supports" net neutrality, a White
House spokesman stressed Thursday, while declining to comment on the specifics of Wheeler's plan.
Obama hadn't yet seen the text, added the aide, who also pointed to the fact that the FCC is an independent
agency.
Meanwhile, old divisions in the familiar net neutrality debate quickly resurfaced on the Hill. Some Democrats,
including Rep. Anna Eshoo (D-Calif.) and Sen. AI Franken (D-Minn.), urged the FCC to harden its rule
proposal, while House Republicans criticized the telecom agency for trying to impose any requirements at all on
Internet providers.
"It is well past time for the commission to focus on areas where its work will foster new innovation,
competition, and job creation," said Reps. Fred Upton (R-Mich.) and Greg Walden (R-Ore.).
The early divides highlight the difficult politics of net neutrality, a perennial lightning-rod in Internet-policy
circles. A constantly warring and partisan Congress renders any legislative fix implausible, even after a January
court decision struck down the FCC's old net neutrality rules. And Wheeler, still a relatively new FCC
chairman, risks only more fighting if he imposes on Internet providers the same, strict rules that long have
applied to traditional phone companies.
1
Wheeler's proposed solution prohibits Internet providers from outright blocking websites or content. However,
it also creates an opening for those Internet service providers to charge content companies for better access to
their pipes. If an Internet provider does so on "commercially unreasonable" terms, then the FCC could take
action.
Already, the proposed system hasn't won much support- even among net neutrality's biggest congressional
defenders.
"Like many Internet users, I fear that the latest round of proposed net neutrality rules from the FCC will not do
enough to curtail discrimination of Internet traffic, but rather leave the door open to discrimination under more
ambiguous te1ms," said Eshoo, the top Democrat on the House's leading telecom committee.
Sen. Ed Markey (D-Mass.), another top net neutrality suppmter, stressed the "Internet's rules of the road must
not open up fast lanes to those who can pay, leaving others stuck in traffic." Sen. Bernie Sanders (I-Vt.),
meanwhile, called it a "terribly misguided proposal," and even wagered its implementation would mean "the
Internet as we have come to know it would cease to exist and the average American would be the big loser."
And Franken described the plan as "deeply disappointing and very troubling." The senator added, "Chairman
Wheeler's proposal would fundamentally change the open nature of the Internet, and I strongly urge him to
reconsider this misguided approach."
By and large, GOP reaction Thursday seemed muted -lawmakers still are away on recess, and Wheeler's
proposal isn't the most onerous legal avenue he could have taken. Still, a few Republican net neutrality
opponents slammed the Obama administration once the FCC detailed some of its plans.
"We have said repeatedly that the Obama administration's net neutrality rules are a solution in search of a
problem," said Upton and Walden, the leaders of the House Energy and Commerce Committee and its telecom
subcommittee, respectively. "The marketplace has thrived and will continue to serve customers and invest
billions annually to meet Americans' broadband needs without these rules."
Rep. Marsha Blackburn (R-Tenn.), another regular net neutrality critic, later charged that Wheeler's plans
amount to "regulatory action that could change the future of the Internet as we know it."
But the most closely watched reaction came from the White House.
An Obama administration spokesman said Thursday that the president has been "clear from the start that we
support" the open Internet. The aide said the president would be "closely following these developments as the
FCC launches its proceeding."
To view online:
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From:
Sent:
To:
Subject:
Gigi Sohn
May 15, 2014 3:06 PM
Sara Morris; Shannon Gilson; Meribeth McCarrick; Kim Hart; Ruth Milkman; Philip
, Diane Cornell; Neil Grace; Mark Wigfield; Jonathan Sailet; Renee Gregory; Maria
Kirby; Daniel Alvarez
FW: Statement by Michael Copps, Special Advisor to Common Cause's Media and
Democracy Reform Initiative, on Today's NPRM
From: Todd O'Boyle [mai!to:TOBoyle@commoncause.org)

To: Todd O'Boyle
Subject: Statement by Michael Copps, Special Advisor to Common Cause's Media and Democracy Reform Initiative, on
Today's NPRM
Colleagues- please see below for former FCC Commissioner Michael Copps statement on today's NPRM.
L::..H
Contact: Mary Boyle
May 15, 2014
(202) 736-5770
Statement by Michael Copps, Special Advisor to Common Cause's Media and Democracy Reform Initiative,
on Today's Notice of Proposed Rulemaking at the Federal Communications Commissioll
"This is an alarming day for anyone who treasures a free and open Internet- whlch should be all of us. The
FCC could have moved decisively to guarantee that the Internet remains an open platform for free expression
and the exchange of democracy-sustaining communications. Instead, the Commission again left broadband
users without the protections they deserve.
"Let's be clear. Any proposal to allow fast lanes for the few is emphatically not net neutrality. The clear
common-sense prerequisite for an Open Internet is Title II reclassification, guaranteeing the agency's authority
to protect consumers and ensure free speech online.
'"The FCC should conduct public hearings on the matter outside of Washington, DC, so it can hear from the
people who will have to live with the decisions it makes at this pivotal moment for the future of the Internet. It's
no exaggeration to say that every American has a stake in its deliberations.
From:
Sent:
To:
Cc:
Subject:
Attachments:
Matt Wood <mwood@freepress.net>

Thursday, March 20, 2014 6:25 PM
Jonathan Sallet; Philip Verveer; Gigi Sohn; Daniel Alvarez
Josh Stearns
Press Freedom Letter re: Net Neutrality
Free Press_Net Neutrality and Journalism letter.pdf
Greetings Jon, Phil, Gigi and Daniel:

Attached please find a letter to Chairman Wheeler that we filed today, along with 41 other journalism groups, regarding the
importance for press freedom of common carriage communications networks with strong nondiscrimination rules.
Other groups joining in this submission include the ACLU, Government Accountability Project, the National Hispanic Media
Coalition, PEN American Center, the Project on Government Oversight, Reporters Without Borders, the Society for
Professional Journalists, the Sunlight Foundation and the Writers Guild of America East.
The letter calls on the Commission to classify broadband access services as telecom services to achieve the vital goal of
protecting the Open Internet. As always, please do not hesitate to contact us with any questions.
Best regards,
Matt Wood
Policy Director
Free Press
www.freepress.net
(202) 265-1490 x. 36
Fight for your rfghts to connect and communicate
MASSACHUSETTS
WASHINGTON
40 main st, suite 301

florence, ma 01062
tel 413.585.1533
fax 413.585.8904
1025 connecticut ave. nw, suite 1110

washington, de 20036
tel 202.265.1490
fax 202.265.1489
March 20,2014
Chairman
Re:
GN Docket No. 14-28, Protecting and Promoting the Open Internet

The D.C. Circuit's decision in Verizon v. FCC dealt a huge blow to the open Internet, press
freedom and our right to access information. As advocates for free expression and open
government, we appreciate your agency's role in protecting our free speech rights online and call
on you to use your clear authority under Title II of the Communications Act to protect the open
Internet.
The open Internet is our main conduit for freedom of expression and information. It is our
library, our printing press, our delivery truck and our town square. Journalists, academics,
communities and govermrients depend on the Internet to connect, communicate and collaborate
every day. And as old models for news and information falter, the Internet has enabled new and
independent media outlets to emerge and thrive.
With the court's decision, however, broadband providers are now free to block or discriminate
against online content, services and applications. Allowing broadband providers to control this
once-open platform shifts power away from communities and individuals and toward entrenched
companies like AT&T, Comcast, Time Warner Cable and Verizon. This will have a chilling
effect on our rights to access, report and share information.
From the beginning, U.S. laws and leaders have protected these rights, acknowledging the
fundamental need for our speech to be delivered without discrimination. Freedom of the press
was not simply the freedom to print, but also the freedom to distribute speech across the country
through a common-carrier network: the postal service. Our ability to utilize that network (and its
successors) is central to our ability to self-govern.
That is why promoting and protecting our ability to exercise our free speech rights via common
carriage is enshrined in our communications laws. Common carriage recognizes that the ability
to have our speech carried free from undue discrimination is essential to our right to speak freely.
The issue is clear: Free speech depends on access to open and nondiscriminatory platforms for
that speech. Without such principles governing online networks, we cannot guarantee the
exercise of this most fundamental right.
Protecting free speech rights cannot be left to the promises of private entities, themselves
motivated by the desire to privilege certain speakers over others and increase the return to their
shareholders rather than their service to the public. That is why we need you and your colleagues
at the FCC to correct the agency's past mistakes and reassert the Commission's clear authority
over our nation's communications infrastructure.
To preserve the open Internet as a vibrant space for press freedom and freedom of information,
the FCC must reclassify broadband access services as telecommunications services to prevent
discrimination and blocking online.
American Civil Liberties Union

Association of Alternative Newsmedia
Bitch Media
Center for Media and Democracy
Coalition to Protect New York
Defending Dissent Foundation
Diversified Media Enterprises
Fairness & Accuracy In Reporting
Free Press
Globalvision, Inc.
Government Accountability Project
iSolon.org
The LAMP (Learning About Multimedia
Project)
Making Contact
Media Alliance
The Media Consortium
Mine Safety and Health News
Mother Jones
MuckRock
National Alliance for Media Arts + Culture
National Coalition Against Censorship
National Hispanic Media Coalition

National Priorities Project
News Taco
OpenTheGovernment.org
Park Center for Independent Media
Participatory Politics Foundation
PEN American Center
Personal Democracy Media
Project On Government Oversight
Reporters Without Borders
RootsAction
Society for Professional Journalists
Sunlight Foundation
Texas Observer
TheUpTake.org
Tikkun Magazine
Truthout
Tully Center for Free Speech
at Syracuse University
WITNESS
Women's Media Center
Writers Guild of America East
From:
Sent
To:
Cc:
Subject:
Attachments:
David Toomey
May 13, 2014 3:35 PM
ch; Shannon Gilson; Neil Grace; Kim Hart; Mark Wigfield
Sara Morris
FW: ICYMI: JOINT RELEASE: Senate Republican Leaders to FCC: Leave Internet Open and
Free
20140513 Senate R leadership Title II N N letter to FCC final. pdf
Press release and letter from Senate Republican leaders on 01.
- - - ---------------
From: Quinalty, David (Commerce) [mailto:David Ouinalty@commerce.senate.gov]

To: Quinalty, David (Commerce)
Subject: ICYMI: JOINT RELEASE: Senate Republican Leaders to FCC: Leave Internet Open and Free
In case you missed it,
Please find below a joint release issued by Senate Republican leaders regarding a letter
regulation of the Internet.
sent to the FCC today about
0.
From: Strong, AshLee (Republican-Conf)
Sent: Tuesday, May 13, 2014 3:24 PM
Subject: JOINT RELEASE: Senate Republican Leaders to FCC: Leave Internet Open and Free
-----------
mntteb
Thune: AshLee Strong 202-228-5940
McConnell: Michael Brumas 202-224-2979
Cornyn: Megan Mitchell202-224-0704
Barrasso: Emily Schillinger 224-6441
Blunt: Amber Marchand 202-224-1403
Moran: Garrette Silverman 202-224-6521

May 13,2014
http://l.usa.gov/1mngspB
Senate Republican Leaders to FCC: Leave Internet Open and Free

WASHINGTON, D.C.-U.S. Senate Republican leaders, including Leader Mitch McConnell (R-Kentucky),
Whip John Comyn (R-Texas), Conference Chairman and Ranking Member of the Commerce, Science, and;
Transportation Committee John Thune (R-South Dakota), Policy Chairman John Barrasso (R-Wyoming),
Conference Vice Chairman Roy Blunt (R-Missouri), and National Republican Senatorial Committee Chairman
Jerry Moran (R-Kansas), today sent a letter to Federal Communications Commission (FCC) Chairman Tom
Wheeler urging the Commission to abandon any efforts to impose so-called "net neutrality" regulations on the
Internet.
1
In their letter, the senators underscore the "politically corrosive" nature of the FCC's contemplated regulations,
and urge the FCC to reject calls to impose Title ll regulations on "the nation's competitive and dynamic
broadband economy." The letter highlights the danger to the Internet of treating it as a government-regulated
utility.
The Senate leaders say, "Rather than attempting further legal contortions to encumber modern communications
networks with last century' s rules, the Commission should work with the Congress to develop clear statutory
authority and direction for the agency so that it can be a productive regulator for the 21st century marketplace."
The full leadership letter is included below.
May 13,2014
Chairman
We write to reiterate our strong concerns with any proposal that would have the Federal Communications
Commission (FCC) apply monopoly-era Title ll regulations to our nation's competitive and dynamic broadband
economy.
The growth of the Internet and the rapid adoption of mobile technology have beer;t great American success
stories, made possible by a light regulatory touch for the entire online ecosystem. This approach has freed
Internet innovators and users at the edge, the core, and the last mile to offer services, to build networks, and to
buy and sell products based on market demand; no government permission has been necessary.
Imposing common carrier-style regulation upon any part of the Internet would be.a dangerous rejection of this
successful policy course, potentially impeding the development and adoption of new Internet technologies and
services, and threatening future investment in next-generation broadband infrastructure.
The courts have twice struck down ill-advised and unauthorized attempts by the FCC to regulate the
corrosive rulemaking,
Internet. Unfortunately, you have chosen to have the FCC again undertake a
relying upon new and untested court-defined powers rather than upon clear Congressional intent and statutory
authority.
Of even greater concern would be using Title ll of the Communications Act to regul11te broadband, which some
voices have called for in recent days. So-called "net neutrality" restrictions are unnecessary, but using Title IT
reclassification to impose them would create tremendous legal and marketplace uncertainty and would
undermine your ability to effectively lead the FCC.
Rather than attempting further legal contortions to encumber modern communications networks with last
century's rules, the Commission should work with the Congress to develop clear statutory authority and
direction for the agency so that it can be a productive regulator for the 21st centuiy marketplace. If the
Commission will not do that, we urge it to reject new "net neutrality" regulations, particularly any which rely
.
upon Title ll.
2
From:
Sent:
To:
Subject:
Attachments:
Sara Morris
ay, April29, 2014 7:45PM
uth Milkman; Gigi Sohn; Philip Verveer; Daniel Alvarez; Jonathan Sallet; Shannon
Gilson; David Toomey
FW: Letter from Senator Franken
Letter from Senator Franken.pdf
From: Stager, Joshua (Judiciary-Dem) [mailto:Joshua Stager@judiciary-dem:senate.govJ
Sent:
Tuesday, April 29, 2014 4:01PM

To: Sara Morris
Subject: Letter from Senator Franken
Hi Sara,
Please find attached a letter to Chairman Wheeler from Senator Franken. Let me know if you have any questions.
I also wanted to let you know that we submitted a few municipal broadband questions to Comcast following our April 9
hearing. Their response should be coming in the next few weeks.
Thanks,
Josh
JOSHUA STAGER, Law Fellow
Senator AI Franken, Chairman
Subcommittee on Privacy, Technology and the Law
Senate Judiciary Committee
202.224.5204
SUITE
AL FRANKEN
SH-309
MINNESOTA
202-224-5641
WASHINGTON, DC 2051o-2309
April29, 2014
The Honorable Tom Wheeler, Chairman
Federal Communications Cominission
445 12th Street, SW
Dear Chaim1an Wheeler,
I am deeply disappointed that you are considering rules that would allow deeppocketed companies to pay for preferential access to Internet Service Providers (ISPs).
Pay-to-play deals are an affront to net neutrality and have no place in an online
marketplace that values competition and openness. This proposal would create an online
"fast lane" for the highest bidder-shutting out small businesses and increasing costs for
consumers. I strongly urge you to reconsider this misguided approach and recommit to
protecting the Open Internet for all Americans.
After the D.C. Circuit Court of Appeals remanded the FCC's Open Internet Order
last January, I wrote you urging the Commission to ''take any and all appropriate actions
necessary to preserve net neutrality." Instead, you appear to be taking the opposite
approach. Sanctioning pay-to-play arrangements would not preserve the Open Internet it would destroy it.
Your proposal would grant Verizon, Comcast, and other JSPs the power to pick
winners and losers on the Internet, which violates core net neutrality principles that you
have publicly supported in the past. Although you claim that this proposal is not a
"turnaround," it is difficult to understand how it does not flatly contradict your
Commission's Open Internet Order, which stated:
"(I]fbroadband providers can profitably charge edge providers for
prioritized access to end users, they will have an incentive to degrade or
decline to increase the quality of the service they provide to nonprioritized traffic. This would increase the gap in quality (such as latency
in transmission) between prioritized access and non-prioritized access,
induce more edge providers to pay for prioritized access, and allow
broadband providers to charge higher prices for prioritized access. Even
more damaging, broadband providers might withhold or decline to expand
capacity in order to 'squeeze' non-prioritized traffic, a strategy that would
increase the likelihood of network congestion and confront edge providers
with a choice between accepting low-quality transmission or paying fees
for prioritized access to end users."
WWW.FRANKEN.SENATE.GOV
In this Order, the Commission correctly identified pay-to-play deals as an anti competitive
threat to the Internet and to consumers. But rather than continue to fight this threat, your
new proposal appears to embrace it. By creating a "commercial reasonableness" rule, the
Commission would be formally sanctioning the very deals it sought to combat less than
three years ago.
Struggling to craft a ''commercially reasonable'' standard misses the point: Pay-toplay arrangements are inherently discriminatory and anticompetitive, and therefore
should be prohibited as a matter of public policy. They increase costs for consumers and
the FCC's
give ISPs a disincentive to improve their broadband
mission to protect the public interest and strengthen the nation's broadband infrastructure.
The Commission wisely recognized the fundamental problems with pay-to-play
arrangements three years ago, and the D.C. Circuit Court of Appeals deferred to your
Commission's substantive judgment on this issue, as well. I urge you to recommit to this
judgment. The Internet was developed at taxpayers' expense to benefit the public interest.
It belongs to all of us. The FCC should be working to sustain competition and consumer
benefits, not creating unnecessary tolls for businesses and consumers.
Thank you for your attention to this urgent matter. I look forward to continuing to
work with you on this vitally important issue.
Sincerely,
Sara Morris
April28, 2014 5:55PM
- R u t h Milkman; Diane Cornell; Gigi Sohn; Daniel Alvarez; Maria Kirby; Renee Gregory;
Philip Verveer; Jonathan Sallet; Shannon Gilson; Neil Grace; Mark Wigfield
FW: Walden Announces Hearing with FCC Chairman Tom Wheeler on May 20
From:
Sent:
To:
Subject:
FYI- E&C oversight hearing announced.
-------
..
-------------------------
From: Energy and Commerce News [mailto:ECNews@ECREP.housecommunications.gov]

To: Sara Morris
Subject: Walden Announces Hearing with FCC Chairman Tom Wheeler on May 20
G --:---------

April28, 2014
CONTACT: Press Office

{202) 226-4972
Walden Announces Hearing with FCC Chairman Tom Wheeler

on May 20
Wheeler to Appear Before Communications and Technology Subcommittee to
Discuss a Number of Issues Including Incentive Auctions, Net Neutrality
Rules, Broadcast Sharing Issues, FCC Process Reform, and #CommActUpdafe
WASHINGTON, DC- The Subcommittee on Communications and Technology, chaired by Rep.
Greg Walden (R-OR), will have a hearing to conduct oversight of the Federal Communications
Commission on Tuesday, May 20, 2014. FCC Chairman Tom Wheeler will be the sole witness.
"I am pleased that Chairman Wheeler will join us in May," said Walden. "This will be our first
opportunity to directly discuss issues important to our technology economy, including recent
proposals regarding the incentive auctions, the latest iteration of the administration's ill advised net
neutrality policies, and the broadcast joint sharing agreements and media ownership proceedings at
the commission. Process reform also remains a top priority for the committee, and we look forward to
discussing this with the chairman."
Walden continued, "We also welcome the opportunity to find areas of common ground as we work
toward updating the Communications Act. We look forward to what will surely be a thorough and
spirited discussion with Chairman Wheeler."
Additional hearing details, the Majority Memorandum, and witness testimony will be available here as
they are posted.
#
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From:
Sent:
To:
Cc:
Subject:
Sara Morris
May 13, 2014 3:00 PM
Milkman; Gigi Sohn; Philip Verveer; Shannon Gilson; Jonathan Sallet; Julie
Mark Wigfield; Kim Hart; Neil Grace; Daniel Alvarez
David Toomey
FW: Committee Leaders Sound Alarm on FCC's Attempt to Reclassify Internet- Jobs and
Innovation at Risk
E&C Rs' press release on their letter is below.
From: Energy and Commerce News [mailto:ECNews@ECREP.housecommunications.gov]

Sent: Tuesday1 May 13 1 2014 2:12 PM
To: Sara Morris
Subject: Committee Leaders Sound Alarm on FCC's Attempt to Redassify Internet- Jobs and Innovation at Risk

May 13, 2014

(202) 226-4972
Committee Leaders Sound Alarm on FCC's Attempt to

Reclassify Internet- Jobs and Innovation at Risk
"Such unwarranted and overreaching government intrusion into the
broadband marketplace will harm
halt job
curtail
investment, stifle innovation, and set America down a dangerous path of
micromanaging the Internet. u
WASHINGTON, DC- House Energy and Commerce Committee Republican leaders today wrote to
Federal Communications Commission Chairman Tom Wheeler regarding the commission's
consideration of reclassifying broadband Internet as a common carrier telecommunications service
under Title II of the Communications Act. Full committee Chairman Fred Upton (R-MI), Vice Chairman
Marsha Blackburn (R-TN), Communications and Technology Subcommittee Chairman Greg Walden
(R-OR), and Vice Chairman Bob Latta (R-OH) today expressed their "grave concern" regarding the
potential harm of such an ill-advised and unnecessary change.
The full text of the letter to Wheeler is below:

We write today to express our grave concern that the Commission continues to consider reclassifying
Internet broadband service as an old-fashione.d "Title II" common carrier service. Such unwarranted
and overreaching government intrusion into the broadband marketplace will harm consumers, halt job
creation, curtail investment, stifle innovation, and set America down a dangerous path of
micromanaging the Internet. The Commission must reject this approach.
Over a decade ago, the FCC wisely rejected calls to regulate broadband service as a Title II service,
noting Congress's explicit direction to leave the Internet "unfettered by federal or state regulation."
The result of this regulatory restraint has been bil!ions of dollars in private sector investment,
tremendous annual increases in broadband speeds, and an explosion of applications, content and
services available to consumers over the Internet.
Now, despite the incredible record of broadband success in America, the Commission may be
contemplating turning back the clock on this process and proceeding with a classification that gives
itself the authority to regulate every possible aspect of the Internet. Simply raising the prospect of
such stifling regulation harms broadband providers, the American economy, and ultimately broadband
consumers - actually doing so would be fatal to the Internet as we know it.
Indeed, consumers will fare the worst if the FCC proceeds with this "common carrier-ization" of
broadband. The FCC efforts to impose Title II regulation will prohibit pricing innovation and force
consumers to pay for the entire cost of building and operating American Internet access networks. As
demand for video and data continues to explode exponentially, this will ultimately result in broadband
becoming unaffordable for many Americans. Title II reclassification could deprive consumers of the
benefits of creative and flexible market-based pricing plans that would fit their video and data needs
at affordable prices.
Investors, investment analysts, and broadband companies have advised that regulating broadband as
a Title II service will create such regulatory uncertainty that stock values will drop and investment
capital will become much harder to find. Decreased investment leads to deferred maintenance,
infrequent upgrades, and stalled deployment, which, at best, leads to higher consumer prices and at
worst leaves consumers with fewer, if any, reliable choices. This market reaction is not speculation, it
is reality. When the FCC briefly considered its ''third way" implementation of Title II several years ago,
broadband provider stocks dropped sharply. Without capital, providers cannot innovate, upgrade their
networks, or create new jobs. This is not an outcome anyone wants.
Sixteen years ago, in a report to Congress, then-Chairman Bill Kennard and the FCC set a course for
this country that supports consumer choice and champions the freedom of the Internet. The
regulatory approach to date has done just that- by rejecting legacy regulation and supporting the jobcreating and investment potential of the private sector. The Commission needs to send a strong
thriving market and consumers by imposing
signal that it has no intention of harming
expansive new Title II regulation on broadband service and micromanaging the Internet under rules
designed for the legacy telephone network. We ask you to end this uncertainty by stating clearly your
intention to drop any consideration of the Title II approach, and closing your Title II docket.
To view a copy of the signed letter, click HERE.
###
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From:
Gigi Sohn
April 29, 2014 5:50 PM
Milkman; Jonathan Sallet; Philip Verveer; Daniel Alvarez; Sara Morris; Shannon
Gilson
FW: Blog post on 01
Sent:
To:
Subject:
From: Michael Weinberg [mailto:mweinberg@publicknowledge.org]

Sent: Tuesday, April291 2014 5:48PM
To: Gigi Sohn
Cc: Harold Feld; Genekimmelman@gmail.com
Subject: Re: Blog post on
or
yes, highly encouraging. Thanks!

On Tue, Apr 29,2014 at 5:33PM, Gigi Sohn <Gigi.Sohn@fcc.gov> wrote:
Thanks!
From: Harold Feld [mailto:hfeld@publicknowledge.org)

Sent: Tuesday, April29, 2014 5:21PM
To: Gigi Sohn
Cc: Genekjmmelman@gmail.com; mweinberg@publicknowl:lge.org
Subject: Re: Blog post on 01
A much better blog post, IMO.

Public Knowledge I @publicknowled.ge I www.publicknowledge.org


1
On Tue, Apr 29, 2014 at 4:48PM, Gigi Sohn <Gigi.Sohn@fcc.gov> wrote:

Note change in tone re: just a proposal and all options still on the table.
http:llwww.fcc.gov/blog/finding-best-path-forward-protect-ogen-internet
\lidliid \Veinberg, Vice President, PK Thinks

''
l-0020 (o)! @mweinbergPK
Public Knowledge I @publicknowled.ge I www.publicknowledge.org

From:
Sent:
To:
Subject:
Ruth Milkman
Thursday, April 03, 2014 4:44
Philip Verveer; Jonathan Sail
FW: Dish & Netflix Get Boost at FCC Today; Broadcasters Hope for JSA Waivers Guggenheim Securities, LLC
From: Gallant, Paul [mailto:Paui.Gallant@guggenheimpartners.com]

To: Ruth Milkman
Subject: Fw: Dish & Netflix Get Boost at FCC Today; Broadcasters Hope for JSA Waivers - Guggenheim Securities, LLC
Hi Ruth- Just fyi. This didn't go to my DC list.
Paul
From: Gallant, Paul [mailto:paul.gallant@guggenheimpartners.com]
Sent: Monday, March 31, 2014 03:15PM

To: Gallant, Paul
Subject: Dish & Netflix Get Boost at FCC Today; Broadcasters Hope for JSA Waivers - Guggenheim Securities, LLC
GUGGEnHEim
Two pages withheld pursuant to FOIA Exemption 4
From:
Sent:
To:
Subject:
Gigi Sohn
FOIA Exemption 6
Ruth Milkman; Philip Verveer; Diane Cornell; Shannon Gilson; Meribeth McCarrick;
Neil Grace; Mark Wigfield; Renee Gregory; Daniel Alvarez; Maria Kirby; Kim Hart;
Jonathan Sallet; Sara Morris
FW: Statement on FCC's Net Neutrality Proposal
From: Michael Beckerman [mailto:beckerman@internetassociation.org]

To: Gigi Sohn
Subject: Fwd: Statement on FCC's Net Neutrality Proposal
FYL
And hang in there.
The Internet
Associatfon
Mkhael' Beckerman
President & CEO
202.80 3.57 83 wwvo;.lnternetAssociation .o rg

1100 H St NW Suite 1020
VVashington, DC 20005
From: The Internet Association <News@lnternetAssociation.org>

Subject: Statement on FCC"s Net Neutrality Proposal
Date: May 15,201411:48:42 AM EDT
To: <beckerman@internetassociation .org>
Reply-To: The Internet Association <News@lnternetAssociation.org>
View this email in your browser
FOR 1M MEDIATE RELEASE

DATE: Thursday, May 15,2014
Internet Association Statement on FCC's Net

Neutrality Proposal and Request for Comments
WASHINGTON, D.C.- The Internet Association's President and CEO, Michael
Beckerman issued the following statement regarding FCC's proposal on net

neutrality:
"The Internet Association supports strong nondiscrimination and no blocking rules
to protect consumers, startups, and the continued innovation of the Internet
economy. In the debate about keeping the Internet open there has been too much
rhetoric surrounding the FCC's legal tools. Protecting an open Internet, free from
discriminatory or anticompetitive actions by broadband gatekeepers should be the
cornerstone of Net Neutrality policy. The Internet Association will advocate for the
FCS to use its full legal authority to enforce rules that lead to an open Internetnothing should be taken off the table as this discussion evolves.
2
Broadband gatekeepers should not have the ability to create slow lanes and fast
lanes on the Internet that discriminate against websites and harm users. We look
forward to working with Chairman Wheeler and his fellow commissioners at the
FCC to ensure that the Internet remains a vibrant platform for consumer choice
and economic growth."
###
About The Internet Association
The Internet Association, the unified voice of the Internet economy, represents the
interests of the leading Internet companies including Airbnb, Amazon, AOL, eBay,
Expedia, Facebook, Gilt, Google, lAC, Linked!n, Lyft, Monster Worldwide, Netflix,
Practice Fusion, Rackspace, reddit, Saiesforce.com, SurveyMonkey, TripAdvisor,
Twitter, Uber Technologies, Inc., Yelp, Yahoo!, and Zynga. The Internet
Association is dedicated to advancing public policy solutions to strengthen and
protect Internet freedom, foster innovation and economic growth, and empower
users. http://wvvw. internetassociation .orq.
Media Contact
The Internet Association
Betsy Barrett
202.997.3266
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Greenfield, Richard < rgreenfield@ btig.com >

Friday, March 28, 2014 3:59 PM
Happy Friday
From:
Sent:
Subject:
Good weekend watch on the Comcast/Time Warner deal:
The Communicators with David Cohen
Favorite line is where Cohen talks about how broadband market share is a local issue, not a national
one and that it unquestionably has to include wireless competition now
Cohen also discusses his views on Reed Hastings blog post from last week tied to
peering/interconnection/net neutrality
The video from one of our most-watched & disturbing blogs of 2013 is back up online and is now in a
contest, so please watch/re-watch and vote for Noah
Blog post A (Disturbing & Amazing) Short Film Every Media Exec and Investor Should Watch- Defines
a Generation
Watch Noah here (if you haven't seen, this video is worth your time): http://www.viewster.com/festivaldetails/1251-17085-000/noah
Richard Greenfield
Media & Tech Analyst 1646-4508680
BTIG Research Blog
Disclaimer: https://btig.com/disclaimer.php
AOL IM: rgreenfieldbtig
I Twitter: @RichBTIG
From:
Sent:
Subject:
Attachments:
Greenfield, Richard < rgreenfield@btig.com>

Friday, April 25, 2014 10:48 AM
Happy Friday- Two Netflix/Net Neutrality Items to Be Aware Of If You Have Not Seen
140424NetflixResponse.pdf; ATTOOOOl.htm; imageJpeg; A TT00002.htm
1) Reed Hastings' Public Facebook status update calling out the FCC on Net Neutrality "What is the FCC
thinking": https://twitter.com/richbtig/status/459466482712608768 and attached pic below
2) Netflix's Letter to Senator AI Franken (link and attached pdf):
http://www.franken.senate.gov/files/letter/140424NetflixResponse.pdf
Disclaimer: https ://btig. com/disclaimer.php
April23, 2014
The Honorable AI Franken
United States Senate
309 Hart Senate Office Building
Washington, D:c. 20510-2309
Dear Senator Franken:

Thank you for your letter. Netflix shares your concerns about the power of a merged
Comcast!Time Warner Cable and is committed to sharing facts with policymakers to increase
their understanding of this issue. Netflix has seen firsthand how Comcast can leverage its
existing market power to extract arbitrary tolls to reach consumers, particularly from Internet
video companies like Netflix that pose a competitive threat to Comcast's own video services.
Below are Netflix's answers to the questions posed in your letter. We are also taking this
opportunity to correct statements regarding our agreement with Comcast and the way the transit ,
market currently functions made by Comcast Senior Vice President David Cohen during the
Senate Judiciary Committee's recent hearing.
1) Will Comcast's acquisition of Time Warner Cable increase Comcast's ability to extract
payments from non-affiliated entities as a condition of access to Comcast's broadband
Internet consumers. If so, please explain how and why, noting also any consequences for
consumers.
Yes.
Comcast is limiting the capacity of connections between its network and other networks, unless
the network agrees to pay Comcast for access. This congestion causes delays when traffic
enters Comcast's network through the settlement-free connections. Consumers experience
these delays as slow page loads, poor streaming quality, and frequent streaming pauses.
Few Americans have a meaningful choice in broadband service providers: Comcast subscribers
are largely stuck with Comcast. And the only way for content providers to reach the millions of
broadband subscribers currently controlled by Comcast is to go through Comcast. By degrading
consumers' experience, Comcast can demand that content providers pay them a toll to avoid
congestion and reach their captive subscribers. If content providers cannot effectively reach
Comcast subscribers, they cannot compete. So they have little alternative for an uncongested
connection unless they agree to Comcast's terms.
If the Comcast and Time Warner Cable merger is approved, the combined company will
represent 40 percent of wired broadband subscribers, 1 including those in 19 of the top
metropolitan areas, with many of those homes having Comcast as the only option for truly
high-speed broadband (>10Mbps). As DSL fades in favor of cable Internet, Comcast could
control high-speed broadband to the majority of American homes. Comcast is already dominant
enough to be able to capture unprecedented fees from transit providers and services such as
Netflix. The combined company would possess even more anti-competitive leverage to charge
arbitrary interconnection tolls for access to their customers.
2) Do you agree with Comcasfs testimony describing interconnection arrangements

generally and Comcast's new interconnection arrangement with Netflix in particular? If
not, please explain.
No.
During the Senate Judiciary hearing on the proposed merger, Mr. Cohen said that it was
"Netflix's desire to pay us directly and cut out a middleman." That is not an accurate description.
Netflix agreed to paid peering with Comcast to reverse an unacceptable decline in our members'
video experience. Netflix developed an entire CDN architecture, called "Open Connect" based
on settlement-free peering. This no-fee interconnection norm avoids the gamesmanship and
blackouts that plague cable carriage and retransmission-consent negotiations in the traditional
video space. Indeed, Netflix is directly interconnected with ISPs all over the U.S. and
internationally without any exchange of payment from either side. Our agreement with Comcast
is the first time that Netflix was forced to pay an ISP for what amounts to access to their
subscribers.
In a subsequent statement, Comcast said "[i]f Netflix did not like the terms of our agreement, or if
they do not like the terms Comcast provides at any time in the future, Netflix can work with any
of the multiplicity of partners that connect with Comcast. ... Transit is a highly competitive
marketplace and Netflix and other Internet content providers have many choices."
The fatal flaw in this assertion is that the number of transit providers or pathways into Comcasfs
network is irrelevant to this issue. Every transit provider must ultimately negotiate with Comcast
Com cast-Time Warner Merger Application, Israel Declaration at 32. Consumers do not view mobile broadband as
a substitute for a wired broadband connection, particularly for data-rich media like streaming video because of
reliability issues and data caps.
for a connection to Comcast's network and Comcast controls the terms of that access. Simply
put, there is still one and only one way to reach Comcast's subscribers: through Comcast.
Prior to our agreement to interconnect directly with Comcast, Netflix purchased all available
transit capacity into Comcast's networks from multiple transit providers. Every single one of
those transit links to Comcast was congested (even though the transit providers requested extra
capacity), resulting in poor video quality for our members. Until Netflix agreed to pay Comcast,
the more that Comcast subscribers requested Netflix content, the more congested these
connections became, and the more that their Netflix video quality suffered. That is where
Comcast is able to leverage its market power most effectively. It can restrict transit capacity into
its network to force content providers into paying for uncongested interconnection.
It is inaccurate for Comcast to suggest that by paying Comcast directly, Netflix is simply
swapping out payment for services that it used to pay transit providers to perform. For a content
company such as Netflix, paying an ISP like Comcast for interconnection is not the same as
paying for transit service. Transit providers are paid by companies like Netflix because they
carry Internet traffic over great distances and provide connections to all of the networks that
comprise the global Internet.
Comcast does not connect Netflix to other networks. Comcast does not carry Netflix traffic over
long distances. Netflix connects to Comcast in locations all over the US, and has offered to
connect in as many locations as Comcast desires. Netflix is itself bearing the costs and
performing the transport function for which it used to pay transit providers. It is Netflix that incurs
the cost of moving Netflix content long distances, closer to the consumer, not Comcast.
3) Comcast argues that it operates in a highly competitive marketplace in which
consumers have ample choices for high speed Internet service and therefore will not
tolerate slow streaming speeds or artificially high costs. What do you make of that
argument?
Few Americans have a meaningful choice in broadband Internet access service provider.
According to the FCC, about 70 percent of U.S. households have at best two options for 6 Mbps
or greater broadband Internet access, which is the floor for data-rich applications like streaming
video. As stated above, consumers do not view mobile broadband as a wireline broadband
substitute for applications like streaming video because of low data caps and reliability issues.
Couple all of this with the high costs of switching from one provider to another, and most
consumers feel that they have to take whatever their ISP offers.
To conclude, Netflix is committed to providing our users with great video quality whenever they
chose to watch Netflix. Unfortunately, Comcast appears willing to sacrifice the quality of its own
subscribers' broadband experience to extract fees from the content providers that Comcast's
own subscribers are paying Comcast to access. The fact that Netflix paid to protect our
consumers is evidence of Comcast's power. Acquiring Time Warner Cable will only increase
this leverage.
The proposed merger will result in online video content providers paying higher prices for
access to Comcast customers or delivering poorer service to customers who depend on
Comcast for broadband access. Ultimately, competition and consumers will suffer. That is why
Netflix opposes the merger.
Respectfully,
Christopher Libertefli
Vice President 1 Global Public Policy
Netflix, Inc.
From: Sara Morris
Sent: Thursday, ARril 24 2014 4:40PM

To: Shannon Gilsoiiiil' Jonathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark
Subject: RE: +Eshoo, Walden, Markey, Matsui, Booker statement on 01
REP RESENT A Tl V E Ar'H.J A G E S H 0 0 { C A -18)
Contact: Charles Stewart
April 24, 2014

http://eshoo.house.gov
(202) 225-8104
charles.stewart@mail.house.gov
ESHOO STATEMENT ON PROPOSED FCC NET NEUTRALITY

RULES
PALO ALTO, Calif.-Rep. Anna G. Eshoo (D-Calif.), Ranking Member ofthe Communications and Technology
Subcommittee, issued the following statement regarding the Federal Communications Commission's (FCC) draft Open
Internet Notice of Proposed Rulemaking:
"Like many Internet users, I fear that the latest round of proposed net neutrality rules from the FCC will not do
enough to curtail discrimination of Internet traffic, but rather leave the door open to discrimination under more
ambiguous terms.
"For me to support 'commercially reasonable' agreements between financially liquid online content companies
and broadband providers for faster Internet speeds, there must be zero uncertainty left in the minds of
consumers, small businesses and innovators that they are competing on a level playing field with their peers.
Fundamentally, consumers and businesses must be protected from actions by online gatekeepers that threaten
free speech, harm competition or diminish the continued openness of the Internet.
"I will stringently evaluate the Chairman's proposal to ensure that these core values are elevated by any final net
neutrality rules."
###
From: Sara Morris
Sent: Thursday,
4:19PM
To: Shannon Gilso
onathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark Wigfield; e1 race
Subject: RE: + Markey, Matsui, Booker statement on 01
FOIA Exemption 5
zce
COMMIITEE
nrrrnr
wmr:zwn
= ON ENERGY AND COMMERCE
m r:
zrr::turt't7tr"tt'1T-zn::mcnz
rzzz:
Chairman Fred Upton
(1 !Sln COrigrt'SS.

April 24, 2014
(202) 226-4972
Upton and Walden Respond to Administration's Latest Net

Neutrality Proposal
WASHINGTON, DC- House Energy and Commerce Committee Chairman Fred Upton (R-MI) and
Communications and Technology Subcommittee Chairman Greg Walden (R-OR) today issued the
following statement responding to the Federal Communication Commission's latest proposal
regarding net neutrality:
"We have said repeatedly that the Obama administration's net neutrality rules are a solution in search
of a problem. The marketplace has thrived and will continue to serve customers and invest billions
annually to meet Americans' broadband needs without these rules. Chairman Wheeler's approach to
regulation seeks to freeze current market practices, which will cast a chill on technological
breakthroughs and cause American consumers to lose out."
Upton and Walden continued, "Further underscoring the needlessness of the rules, Internet service
providers have made clear they will continue to adhere to the spirit of the rules that were already
struck down by the courts. It is well past time for the commission to focus on areas where its work will
foster new innovation, competition, and job creation."
###
PERMALINK
From: Sara Morris
Sent: Thursday, AP-ril 24 2014 2:50PM
To: Shannon Gilso.onathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Subject: RE: + Markey, Matsui, Booker statement on OI
Sen. Markey quote to press:
"Openness is the Internet's heart and nondiscrimination is its soul, and infringements on either of these features
undermines the spirit and intent of net neutrality. No one should have to ask permission to innovate, and we need to
retain the ability of all Internet users to communicate and compete on a level playing field, preventing the presence of
fast and slow lanes that are contrary to the essence of the Internet. The Internet's rules of the road must not open up
fast lanes to those who can pay, leaving others stuck in traffic. As this process moves forward, I plan to closely review
the proposal and work to ensure that it properly safeguards the openness and vitality of the Internet for all users,
entrepreneurs and our economy for generations to come."
As picked up by Politico:
From: POUTICO Pro Whiteboard [mailto:politicoemail@politicopro.com]
Sent: Thursday, April 24, 2014 11:52 AM

To: David Toomey
Subject: Markey opposes 'fast lane' provision of FCC's net neutrality proposal
4/24/14 11:52 AM EDT
Sen. Ed Markey, a top net neutrality supporter in Congress, already has some reservations with FCC Chairman
Tom Wheeler's new open Internet plan.
"Openness is the Internet's heart and nondiscrimination is its soul, and infringements on either of these features
undermines the spirit and intent of net neutrality," the senator said in a statement. "No one should have to ask
permission to innovate, and we need to retain the ability of all Internet users to communicate and compete on a
level playing field, preventing the presence of fast and slow lanes that are contrary to the essence of the
Internet. 11
"The Internet's rules of the road must not open up fast lanes to those who can pay, leaving others stuck in
traffic, 11 added Markey, a Commerce Committee member, noting he plans to review the proposal going forward:
-TonyRomm
****
Thursday, April 24, 2014
CONTACT: JONELLE TRIMMER

(202) 225-7163
Congresswoman Matsui Statement on the FCC's Net Neutrality Announcement

WASHINGTON, DC- Today, Congresswoman Doris Matsui (D-CA), a member of the House Energy and Commerce
Subcommittee on Communications and Technology, issued the following statement following the FCC's net neutrality
announcement:
, "The FCC should adopt and enforce strong and clear net neutrality rules. It should not turn back from its responsibility
to preserve an open and free Internet that spurs innovation and protects consumers. I am hopeful that through working
with various stakeholders in the Internet ecosystem, the Chairman will propose a set of rules that will accomplish this
goal."
###
From: Sara Morris
Sent: Thursday, ARril 24 2014 9:52AM
.
To: Shannon Gilso.Jonathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Subject: Hill Booker statement on or
U.S. Sen. Cory Booker Statement on Potential FCC Change to Internet Access Rules
Washington, D.C.- U.S. Sen. Cory Booker (D-NJ) today issued the following statement responding to news
reports that the Federal Communications Commission (FCC) is considering changing a rule to allow Internet
service providers to adjust the speed of content delivery based on price, a change that could dramatically alter
the online experience ofmany Americans.
concerned by reports that the FCC is preparing to reverse ground on so-called net neutrality rules,
"I am
potentially creating a pay-to-play system for Internet content that would advantage the fortunate and imperil
content access for millions. Equal access to the Internet has a powerful positive effect- on education,
government, even entrepreneurship. We should not jeopardize those gains, as well as progress still to come, by
undermining the democratizing power of the Internet. I will be following the development of the FCC's new
rule proposal closely."
From:
Sent:
To:
Subject:
FOil\ Exemption 6
Tuesday, May 13, 2014 3:01AM

Ruth Milkman; Philip VeNeer; Jonathan Sallet; Gigi Sohn;_ Shannon Gilson; Daniel Alvarez
More about Roku
-----Original Message---From: Greenfield, Richard [mailto:rgreenfield@btig.com]

Sent: Monday, M!?J2, 201410:25 PM
Tci1Mf"1 n:!!:
Subject: RE: Maybe changing wording could help
Time Warner Cable's Roku (and ios/Android apps) inside the home function as managed or specialized network services.
The content originates from Time Warner Cable's digital center in Denver and is transported only over TWC
infrastructure- it never touches the public internet
Its been described to me as dedicating a channel- you could dedicate to a new HD channel, or more internet bandwidth
or voip or in this case to a dedicated IP-based stream of time warner cable linear and on-demand content for third-party
devices
It is not removing bandwidth from the Internet service that TWC delivers to me, it is separate pathway-- essentially a
fast lane that never gets congested ... which I think is exactly what was envisioned in the last FCC rule making. There is no
cost to the consumer- the cost is on TWC as they have to allocate bandwidth.
TWC subs do not pay extra for this as they are simply watching content in the home via IP vs. traditional QAM- meaning
they've already paid for this IP-access. While this is an internal managed service there is nothing that stops a third party
from delivering their content to TWC and paying to have it go over a separate channel. That is not what Netflix is paying
for today, but nothing would stop Netflix from connecting directly to TWC and delivering a separate IP channel of
content
Blog and demo below
In terms of others- Cablevision and Cox have iDS apps that function as managed services and Comcast on the Xbox is a
managed service. Dedicated IP-channels, not internet- appears to be the biggest misconception out there right now ..
Let me know if a quick phone call can help tomorrow
Roku App Demo:

https://www .youtube.com/watch ?v=hp3 N6AFM p1c
Latest Roku App blog post
http://www.btigresearch.com/2013/12/23/time-warner-cable-roku-lower-capex-and-superior-user-interface-takeoutprice-rising-watch-our-demo/
Fro
To: Greenfield, Richard
Subject: RE: Maybe changing wording could help
Thanks RichHave read (repeatedly) your Friday piece.
Can you tell me more about the Roku example? I didn't realize that this relationship was in place. Are there other MSOs
or other edge services that have something similar? Specifically, how does it work in terms of cost, etc.?
Thanks
T
-----Original Message----From: Greenfield, Richard [mailto:rgreenfield@btig.com]

14 8:45PM
help
There will not be two internets -there is and can only be one
But there can be dedicated ip services called managed services that never touch the public internet
That was in the prior rulemaking and never caused this insanity from the tech world- even though they were effectively
fast lanes
I honestly think everyone spins to their advantage and doesnt know what they are talking about
Hope u enjoyed our piece from friday- we submitted to the official record too
Disclaimer: https://btig.com/disclaimer.php .
From:
Sent:
To:
Subject:
Attachments:
FOIA E.-:emplion 6
Wednesday, May 14, 2014 7:54 AM
Ruth Milkman; Philip Verveer; Jonathan Sallet; Gigi Sohn; Shannon Gilson; Daniel Alvarez
Letter from John Chambers in support of 706
Letter from John Chambers to Thomas Wheeler.pdf
From: John Chambers (chambers)
Sent: Tuesday, May 13, 2014 07:4
FOIA
..
To: Tom Wheeler
Cc: Deborah Ridley; Jeff Campbell (jeffrcam) FO!A Exemption 6
Subject: Letter for Chairman Wheeler

Thank you for taking the time to speak with me on the phone today. Please review the attached letter. I hope we will have
the chance to meet in person on my next trip to Washington, DC.
Sincerely,
John
John T. Chambers
Chairman and Chief Executive Officer
Cisco Systems, Inc.
170 West Tasman Drive
San Jose. CA 95134-1706 USA
v.rww.c;isco.com
May 13,2014
Via Email and ECFS

Mr. Thomas Wheeler
Chairman
445 Twelfth Street, SW
Re: Protecting and Promoting the Open Internet (GN Docket No. 14-28)
Thank you for taking the time to speak to me today on the phone about Cisco's
concerns relating to the FCC's Open Internet proceeding. Cisco has supported an open and
innovative Internet for over a decade and was one of the original drafters of the "Connectivity
Principles" that stated that Internet consumers should not be blocked from accessing and using
all legal content and applications.
Cisco strongly supports the balanced approach that you have proposed as the
Commission develops new rules for the Open Internet. In order to
innovation on the
Internet, it is important to protect end users and content providers fiom unwarranted blocking.
It is equally important to protect innovation inside the network by allowing new technology
and business models to be deployed without onerous regulation. Your approach of applying a
"commercially reasonable" test to new offerings by Internet service providers allows
innovative new products and services to develop, while at the same time protecting consumers
and competition.
Cisco is deeply troubled by the proposals of some advocates to impose the oldfashioned telephone regulations of Title II of the Communications Act to broadband Internet
access service. By keeping the heavy hand of Title II regulation out of the Internet, the FCC
has encouraged huge investment in Internet infrastructure. Indeed, over $60 billion per year is
spent to improve broadband networks of all types. Cisco's Visual Networking Index
demonstrates the enormous explosion of Internet traffic that U.S. networks currently handle
and that U.S. networks are starting to become world class again. Our research indicates, for
instance, that almost 50% of the world's LTE subscribers are in the United States- a clear
result of investment encouraged by sound FCC policy.
If Title II regulation is brought to broadband Internet access services, investment in
new infrastructure will be severely hamstrung. New, innovative services may not be brought
to market because entrepreneurs fear telecommunications regulation. The competitiveness of
our nation will be threatened because, in a global world, investment and jobs will move to
countries that encourage innovation.
I am passionate about this issue because it is crucial to the future of the Internet. Will
we have rules that only seek to protect innovation on the edge of the network by imposing
onerous regulation on the core of the network? Or will we take a balanced approach that
encourages innovation everywhere in the Internet ecosystem while protecting consumers and
competition? I strongly urge the FCC to take the balanced approach as it deliberates on this
important proceeding.
Thank you for your leadership on this crucial issue. It is important that the FCC gets it
right and ensures that innovation can thrive throughout the Internet. CiscQ stands ready to
work with you on achieving the right balance as the Commission moves forward to complete
its work.
John T. Chambers
Chairman and Chief Executive Officer
One page withheld- not responsive to request
From: Sara Morris

ay, May 15, 2014 2:47PM
Milkman; Philip Verveer; Gigi Sohn; Daniel Alvarez; Jonathan Sallet; Shannon Gilson; Kim Hart; Neil Grace;
Renee Gregory; Maria Kirby; Stephanie Weiner; Julie Veach; Roger Sherman
Cc: David Toomey
Subject: FW: AT&T Open Internet Statement
ICYMI
From: BALMORIS, MICHAEL F [mailto:mb8156@att.com]

To: BALMORIS, MICHAEL F
Subject: AT&T Open Internet Statement
on the FCC's Proposed
Posted by: AT&T Blog Team on May 15, 2014 at 2:38pm

The f91/owing may be attributed tb Jim Cicconi, AT&T Senior Executive Vice President of External and
Legislative Affairs:
"AT&T is committed to an Open Internet We supported the Commission's 2005 Open Internet Policy
Statement, as well as the Commission's 2010 Open Internet Rules which codified that policy. Our network
management practices are designed to comply with those rules. Those practices are described on our website
today, in accordance with FCC rules that were not vacated by the DC Circuit, and are still today fully
enforceable by the FCC. In short, broadband customers throughout the United States have access to AT&T's
open broadband networks which comply fully with Open Internet principles that have been in place for almost a
decade.
"The framework adopted by the Commission in 2010 achieved a delicate balance that ensures openness, while
maintaining a stable environment for investment. As a result, infrastructure providers have invested hundreds of
billions of dollars to provide American consumers with the most robust wireline and wireless broadband
networks in the world.
2
"This debate has been falsely labeled as a debate over fast lanes and slow lanes. It is not about that at all. This
debate is over whether we will continue to foster an investment environment that has allowed US companies to
build the world's best networks so that all consumers can have the fastest Internet lanes in the world.
"Going backwards 80 years to the world of utility regulation would represent a tragic step in the wrong direction.
Utility regulation would strangle investment, hobble innovation, and put government regulators in charge of
nearly every aspect of Internet-based services. It would deprive America of the world's most robust broadband
infrastructure, and place a cloud over every application or website that delivers products and content to
consumers. In short, it would place government in control of the Internet at the expense of private companies,
inventors and entrepreneurs, and ultimately at the expense of the American people.
"Such an approach would also send an alarming message to the rest of the world-a message that says the
United States believes it is appropriate for governments to place onerous regulations on the Internet. This could
encourage other countries to pursue their own goals, whether to suppress 'dangerous' speech or extract
economic value from American Internet and content companies.
"AT&T will participate constructively in the upcoming proceeding. It is our hope that we can once again find an
appropriate balance that preserves an Open Internet while ensuring American consumers will continue to have
access to the world's most robust broadband infrastructure."
http://www.attpublicpolicy.com/broadband-policy/att-statement-on-the-fccs-proposed-open-internetrulemaking/
Michael Balmoris
202.457.3008 (Office) I 202.907.6453 (Mobile)
attpublicpolicy.com
From:
Sent:
To:
Subject:
Ruth Milkman
ay, May 11, 2014 3:39 PM
Jonathan Sallet; Shannon Gilson; Philip Verveer
Fw: New Uncertainty Around FCC's Net Neutrality Rewrite - Guggenheim Securities, LLC
Ruth Milkman
Chief of Staff
202 418 2107
From: Gallant, Paul [mailto:Paui.Gallant@guggenheimpartners.com}

Sent: Sunday, May 11, 2014 01:34 PM Eastern Standard Time
To: Ruth Milkman
Subject: Fw: New Uncertainty Around FCC's Net Neutrality Rewrite - Guggenheim Securities, LLC
Ruth-- Here is a not from last week that didn't go to my DC list.
From: Gallant, Paul [mailto:paul.gallant@guggenheimpartners.com}

Sent: Thursday, May 08, 2014 06:17AM
To: Gallant, Paul
Subject: New Uncertainty Around FCC's Net Neutrality Rewrite - Guggenheim Securities, LLC
Three pages withheld pursuant to FOIA Exemption 4
From:
Sent:
To:
Cc:
Subject:
Sara Morris
Friday, April
Shannon
n Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David
Toomey
Mark Wigfield;
Grace; Meribeth McCarrick
RE: +Waxman, Doyle, Sanders, Eshoo, Walden, Markey, Matsui, Booker statement on OI
From: "Roehrenbeck, Jean" <Jean.Roehrenbeck@mail.house.gov>

To: "Roehrenbeck, Jean" <Jean.Roehrenbeck@mail.house.gov>
Subject: PRESS RELEASE: Doyle Responds to Proposed FCC Net Neutrality Rules
Contact: 202-225-2135
Doyle Responds to Proposed FCC Net Neutrality Rules

Washington, DC- April 25, 2014- Today, Congressman Mike Doyle (D-Pennsylvania) reacted strongly to the Federal
Communication Commission's proposed rules regarding net neutrality:
1
'1 have long been an ardent proponent of the strongest net neutrality rules. I believe it is the responsibility of the
Federal Communications Commission (FCC) to adopt strong regulations to protect the open internet.
'1 have serious concerns about the FCC's proposal and the effects it might have on access, content, innovation, and
consumers' pocketbooks. An open internet is essential to fostering innovation, protecting small businesses, and
protecting the consumer's ability to access and evaluate unadulterated content.
1
"I strongly urge the FCC to take the necessary steps to ensure that the Internet remains an open and accessible platform
for all."
###

Rep. Henry A. Waxman, Ranking Member
For Immediate Release: April24, 2014
Karen Lightfoot: (202) 225-3641
Ranking Member Waxman Statement on FCC's Draft Open Internet Rules

WASHINGTON, DC- Today Ranking.Merriber Henry A. Waxman released the following statement
in response to the FCC's draft Open Internet Notice of Proposed Rulemaking:
"An open internet is vital to our economy. I spoke with Chairman Wheeler today and he assured me
that he is committed to ensuring an open internet and banning any arrangements that hinder
innovation and competition or impinge on consumer choice. These are the right goals, and I want to
work with him to make sure they are achieved in the final rule."
#=##
Statement of Sen. Bernie Sanders:
http:Uwww.sanders.senate.gov/newsroom/recent-business/net-neutralitv
The Federal Communications Commission is considering a proposal to let Internet service providers pay for faster
service. The proposal would stifle the free flow of information, lead to higher prices for consumers and discourage
technological innovation. "Under this terribly misguided proposal, the Internet as we have come to know it would cease
to exist and the average American would be the big loser. We must not let private corporations turn bigger and bigger
profits by putting a price tag on the free flow of ideas," Sen. Bernie Sanders said. "Our free and open Internet has made
invaluable contributions to democracy both here in the United States and around the world. Whether you are rich, poor,
young or old, the Internet allows all people to seek out information and communicate globally. We must not turn over
our democracy to the highest bidder."
From: Sara Morris
Sent: Thursday, Ap-2014 6:27 PM

To: Shannon Gilson
Jonathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark Wigfield; Nei Grace; Meribeth McCarrick
Subject: RE: +Eshoo, Walden, Markey, Matsui, Booker statement on OI
...
. .... :.'s.W.W.WDEMGRA:TIGLEADERuOV
. . .
Contact: Drew Hammill, 202-226-7616
April 24, 2014
Pelosi Statement on FCC's New Open Internet Proposal

Washington, D.C.- Democratic Leader Nancy Pelosi released the following statement today on the Federal
Communications Commission's new draft proposed rule on protecting the open Internet:
"Press accounts of the draft proposal from the FCC raise serious concerns that the Internet might soon Jose the
core of what it is- an open space for innovation, entrepreneurship, connection and communication. Clearly, the
American people believe in preserving an open Internet where anyone can bring an idea to the table without
seeking permission or paying a toll to each internet provider.
"Success should be founded on merit and good ideas; not on who has the deepest pockets. We must not allow
broadband providers to relegate competing ideas, products, and services to slow, congested speeds.
"I urge Internet entrepreneurs, experts, and users to contact the FCC to make their voices heard and urge the
Commissioners to establish rules ofthe road that protect the freedom, entrepreneurship and openness that must
always define the Internet and American innovation."
###
2
From:
Sent:
Subject:
Greenfield, Richard <rgreenfield@btig.com>

Tuesday, May 13, 2014 2:03 PM
Internet Regulation Continues to Heat Up Major US ISPs just responded to FCC with a
letter
ISP CEO Letter to FCC.pdf; Tech-Company-Sign-On-Letter.pdf; SenatorLetter.pdf
Attachments:
Given the potential impact on a wide range of TMT stocks- please let us know if you'd like to discuss any of the
documents/blog posts below- we have a very differentiated view on Internet Regulation
1) ISP letter just filed with FCC attached
2) Last week's Tech Company letter to FCC attached
3) Last week's US Senator letter to FCC attached
4) Today's blog on why Fast lanes do not have to affect Internet Speeds
5) Our blog from last week Should the Internet be Regulated
Richard Greenfield
fv!edia & Tech Analyst [646-450 8680 i /;01. Irv1: rqre<-nhe!dbtiq [ Twitte:-: @RichBTIG
BTIG Research Blog
Global Commissions for Charity Day

Tuesday, May 13, 2014
Proudly Suppcrting Cha
Fccused en Children
Disclaimer: https://btig.com/disclaimer.php
May 13, 2014

445 12th Street, S W
Dear Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O'Rielly:
For more than a decade, America's broadband companies (including companies that depend on
the broadband ecosystem) have worked to ensure that their customers can enjoy access to worldclass broadband services consistent with the Commission's dearly ruticulated core Internet .
freedoms. An open Intemet is central to how America's broadband providers operate their
networks, and the undersigned broadband providers remain fully committed to openness going
forward. We are equally committed to working with the Commission to find a sustainable path
to a lawful regulatory framework for protecting the open Internet during the course of the
rulemaking you are launching this week. That framework must promote investment and
opportunity across the Internet economy, from network providers to app developers, for the
benefit of American consumers.
In recent days, we have witnessed a concerted publicity campaign by some advocacy groups
seeking sweeping government regulation that conflates the need for an open Internet with the
purported need to reclassify broadband Internet access services as Title fi telecommunications
serviCes subject to common carrier regulation. As demonstrated repeatedly, the future of the
open Internet has nothing to.do with Title II regulation, and Title II has nothing to do with the
open Internet. As it did in 2010, the Commission should categorically reject efforts to equate the
two once and for all.
The high stakes of this debate have already been demonstrated. Today's regulatory framework
helps support nearly 11 million jobs annually in the U.S. and has unleashed over $1.2 trillion
dollars of investment in advanced wired and wireless broadband networks, as well as an entirely
new apps economy. We see an average of over $60 billion poured into cable, fiber, fixed and
mobile wireless, phone, and satellite broadband networks each and every year. And broadband
gets better every year: the average broadband speeds jumped 25 percent in 2013 alone,
highlighting there are no "slow lanes" in today's Internet.
Yet even the potential threat of Title II had an investment-chilling effect by erasing
approximately ten percent of some ISPs' market cap in the days immediately surrounding the
Title Tl announcement in 2009/10. Today, Title If backers fail to explain where the next
hundreds of billions of dollars of risk capital will come from to improve and expand today' s
networks under a Title II regime. They too soon forget that a decade ago we saw billions newly
invested in the latest broadband networks and advancements once the Commission affirmed that
Title II does not apply to broadband networks.
Reclassification of broadband Internet access offerings as Title II "telecommunications services"
would impose great costs, allowing unprecedented government micromanagement of all aspects
of the Internet economy. It is a vision under which the FCC has plenary authority to regulate
rates, terms and conditions, mandate wholesale access to broadband networks and intrude into
the business of content delivery networks, transit providers, and connected devices. Indeed,
groups pushing the Title II approach fail to acknowledge that their path forward is in fact a
slippery slope that would provide the Commission sweeping authority to regulate all Internetbased companies and offerings. In defending their approach, Title II proponents now argue that
reclassification is necessary to prohibit "paid prioritization," even though Title II does not
discourage-Jet alone outlaw- paid prioritization models. Dominant carriers operating under
Title II have for generations been permitted to offer different pricing and different service quality
to customers.
Not only is it questionable that the Commission could defensibly reclassify broadband service
under Title II, such an action would greatly distort the future development of, and investment in,
tomorrow's broadband networks and services. America's economic future, as envisioned by
President Obama and congressional leaders on both sides of the aisle, critically depends on
continued investment and innovation in our broadband infrastructure and app economy to drive
improvements in health care, education and energy. Under Title II, new service offerings,
options, and features would be delayed or altogether foregone. Consumers would face less
choice, and a less adaptive and responsive Internet. An era of differentiation, innovation, and
experimentation would be replaced with a series of"Government may I?" requests from
American entrepreneurs. That cannot be, and must not become, the U.S. Internet oftommTow.
We should seek out a path forward together. All affected stakeholders need and want certainty
and an end to a decade of legal and political
All parts of the Internet community
should be focused on working together to develop next-generation networks, applications, and
services that will be critical to our global competitiveness and enhance opportunities for all
Americans. Yet, those demanding the Title II common carrier approach are effectively
compelling years-if not decades-of endless litigation and debate. The issues at stake would
include not simply regulating the Internet under Title II, but also which specific provisions of the
monopoly-era statute apply to modern broadband networks. Collectively, we would face years
more of uncertainty and, as a result, an economy deprived of the stable regulatory framework
needed to promote future investment, innovation and consumer choice.
As it begins its rulemaking process, the Commission should reaffirm its commitment to the lighttouch approach that has ensured America's leadership throughout the Internet ecosystem, from
networks to services, from applications to devices. The U.S. experience was not a foregone
conclusion. It was the result of courageous and bipartisan leadership that rejected old regulatory
mandates in favor of a new, nimble paradigm of government oversight. We urge you to continue
down that path at this critical juncture.
Sincerely,
Thomas R. Stanton
Chairman & CEO
ADTRAN
Anand Vadapalli
President & CEO
Alaska Communications
Randall L. Stephenson
Chairman & CEO
AT&T
Amy Tykeson
CEO
BendBroadband
Steve Miron
Chairman & CEO
Bright House Networks
(/
Brian Sweeney
President
Cablevision
1LyY
Glen Post
President & CEO
Century Link
Tom Rutledge
President & CEO
Cha1ter Communications
Brian L. Roberts
Chairman & CEO
Comcast
Robe1t Currey
Chairman & CEO
Consolidated Communications
Patrick J. Esser
President
Cox Communications
Steve Largent
President & CEO
CTIA- The Wireless
Association
Gary Shorman
President & CEO
Eagle Communication
Paul H. Sunu
CEO
FairPoint
Maggie Wilderotter
Chairman & CEO
Frontier
() 1#
{/) o-6 czcll)!}
Ronald Duncan
President & CEO
GCI
Eric Yeaman
President & CEO
Hawaiian Telcom
Rocco Commisso
Chairman & CEO
Mediacom Communications
Patrick McAdaragh
President & CEO
Midcontinent Communications
John Evans
Chairman & CEO
Nelson County Cable and
Evans Telecommunications
Co.
Michael Powell
President & CEO
National Cable &
Telecommunications
Association
Chris French
President & CEO
ShenTel Communications
Richard J. Sjoberg
President & CEO
Sjoberg's Cable
Jerald L. Kent
Chairman & CEO
Sudden link
Grant Seiffeii
President
Telecommunications Industry
Association
Robert D. Marcus
Chairman & CEO
Time Warner Cable
Walter B. McCormick, Jr.

President & CEO
USTelecom
Lowell C. McAdam
Chairman & CEO
Verizon

445 12th Street, SW
May 7, 2014
Dear Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O'Rielly:
We write to express our support for a free and open internet. Over the past twenty years, American
innovators have created countless Internet-based applications, content offerings, and services that
are used around the world. These innovations have created enormous value for Internet users, fueled
economic growth, and made our Internet companies global leaders. The innovation we have seen to
date happened in a world without discrimination. An open Internet has also been a platform for free
speech and opportunity for billions of users.
The Commission's long-standing commitment and actions undertaken to protect the open Internet
are a central reason why the Internet remains an engine of entrepreneurship and economic growth.
According to recent news reports, the Commission intends to propose rules that would enable phone
and cable Internet service providers to discriminate both technically and financially against Internet
companies and to impose new tolls on them. If these reports are correct, this represents a grave
threat to the Internet.
Instead of permitting individualized bargaining and discrimination, the Commission's rules should
protect users and Internet companies on both fixed and mobile platforms against blocking, discrimination, and paid prioritization, and should make the market for Internet services more transparent.
The rules should provide certainty to all market participants and keep the costs of regulation low.
Such rules are essential for the future of the Internet. This Commission should take the necessary
steps to ensure that the Internet remains an open platform for speech and commerce so that America
continues to lead the world in technology markets.
Sincerely,
Amazon
Cogent
Drop box
Ebay
Etsy
Facebook
Foursquare
Google
Kickstarter
Level3
Linked in
Lyft
Microsoft
Netflix
Reddit
Tumblr
Twitter
Vonage Holdings Corp.
Yahoo! Inc.
Zynga
2600hz, Inc.
Contextly
lnstapaper
2redbeans
Coursera
inXile Entertainment
4chan
Crowd Tilt
Kaltura
8x8, Inc.
Cube, Co
LawGives
Addy
dasData
Leaflad
AdviserDeck
Digg
Lend Up
Agile Learning Labs
Distinc.tt
Linearair
Airdroids
DuckDuckGo
Linknovate
AirHelp
Duo lingo
little Bits
AnalyticsMD
DynaOptics
Lucipher.net
Appar
Embedly
MDDHosting LLC
Apportable
Fandor
Medium
AppRebates
Floor64
Meet up
Apptology
Flowroute
Meteor Development Grouo
Assembly Made, Inc.
Flurry
Minds+ Machines
Authentise
Fonebook
Misk
Automattic/WordPress.com
Funeral Innovations
MixRank
BadgerMapping
Gandi
MobileWorks
Bitnami
Gawker
Motionry
BitTorrent
General Assembly
MozartMedical
Blu Zone
Github
Mozilla
(Beyond
Grid
NOTCOTinc
Chirply
Handy Networks
O'Reilly Media
Clef
Haystack. tv
OfficeNinjas
Cloud Fare
Heavybit Industries
Open Materials
Codecademy
HelloSign
Open Spectrum
CodeCombat
HeyZap
OpenDNS
CodeHS
iFixit
Opera Software ASA
CodeScience
iLost
PayTango
Colourful Rebel
lmgur
Pocket/Readitlater
Poll Everywhere, Inc
UberConference
Printrl;>ot
UltiMachine
Publitas.com
Ustream
Rallyware
Vidmaker
Recrout
Volary Foundation
Redbubble
Voys Telecom
Rewheel!Digital Fuel Monitor
Waxy
Reylabs
Worldly
Rogue Labs
Xola
Shapeways
Yanomo
Sidecar
Sift Science
Simpolaris
Sketch Deck
Skytree
SlidePay, Inc
Socialscope
Solidoodle
SpiderOak
Spoon Rocket
Spotfront
StackExchange
StartX Stanford
Statwing
Tastemaker .
The Next Web
Trigg it
Tsumobi
Tucows
Twilio
ilnited
May 9, 2014

Chairman
445 lih Street, SW
We are writing today to express serious concern over reports that the Federal Communications
Commission (FCC) has plans to reverse its earlier commitment to preserving a free and open Internet
for all Americans.
It is our understanding that the Commission may soon vote on a Notice of Proposed Rulemaking
(NPRM) for new Open Internet rules. This vote comes in the wake of the United States Court of
Appeals for the District of Columbia's recent decision vacating the Commission's 2010 Open
Internet Order. This NPRM is a necessary step forward. As the potential to profit from
monopolistic, anti-competitive, anti-innovation, and anti-consumer practices has grown, the need for
explicit, enforceable rules has become more urgent. However, it will only be a positive step if you
and your staff can craft meaningful rules.
You must act promptly to prevent blocking- both intentional and incidental- ban discrimination,
and promote increased transparency in the Internet marketplace. The Commission clearly recognizes
the benefits of an open Internet, and the need for reasonable market rules that will preserve
Americans' access to the services and sites of their choosing. The court's decision did nothing
change the need for such rules. lt merely overturned the FCC's legal theory regarding its authority
for the 20 I 0 order.
Unf01tunately, we fear that specific provisions of the NPRM may be insufficient to accomplish the
task. The current Internet is a free market of products and ideas unparalleled in human history, and
the FCC must preserve the type of Jnternet access that allows that marketplace to
thrive. Unf01tunately, reports on your current proposal suggest it may have unintended, deleterious
effects. While several posts and statements from the Chairman's office offer assurances about your
goals, we worry that the NPRM language would permit broadband providers to collect new tolls
from innovators, entrepreneurs and all manner of speakers on the Internet.
Particularly concerning are reports that the NPRM will allow "paid prioritization arrangements" as
long as they are "commercially reasonable," as determined by a complicated series oftests that the
Commission has yet to develop. Changing the rules -to let broadband Internet Service Providers
(fSPs) demand payment from websites and app developers- would eradicate Net Neutrality, not
preserve it. Any time one group of packets is favored on an IP network the rest ofthe traffic is, by
definition, discriminated against. Given the current state of congestion the ISPs have allowed to
Letter to Wheeler on NPRM

May 9, 2014
develop at their interconnections with the Internet, any discrimination results in a degradation or
blocking of services to the consumer- services the consumer has paid for.
The genius of the Internet is that it allows innovation without permission, not innovation only after
cutting a deal with the ISP and receiving the FCC's blessing for it.
Sanctioning paid prioritization would allow discrimination and irrevocably change the Internet as we
know it. Small businesses, content creators and Internet users must not be held hostage by an
increasingly consolidated broadband industry. Start-ups should not find themselves unable to get a
foot in the door, deterred from making the kind of investments that make the Internet the engine for
creativity and economic growth we know today. Consumers should not be faced with fewer choices
at ever higher prices while ISPs monetize their data and dictate who succeeds and who fails online.
The D.C. Circuit decision is clear. The Commission has to allow substantial discrimination if it
chooses to base its Open Internet policies on section 706 of the Telecom Act. The court said that the
FCC cannot, under Section 706, adopt rules that resemble "common carrier" requirements to serve
everyone. Yet that is exactly what Net Neutrality means: keeping the Internet open to all, and
making sure that Internet access is free from the threat of blocking, discrimination, and pay-to-play
schemes.
Fortunately, the Commission stili has the time and ability to rectify this problem. We ask you to
ensure that the NPRM includes specific questions about Title II and the more robust rules that you
could base on this authority. The item should facilitate discussion of the best option for protecting
the Open Internet- not merely accept that the Commission has no choice but to permit toll lanes and
other kinds of unreasonable discrimination. Consumers and innovators cannot afford to wander
through this regulatory murk any longer. The time has come for the FCC to adopt Net Neutrality
rules that provide clear, strong protections for the Open Internet and all Americans, once and for all.
Sincerely,
Charles E. Schumer
Bernard Sanders
AI Franken
Kirsten E Gillibrand
RichardBI umenthal
/,.e.r
From:
Sent:
To:
Cc:
Subject:
Attachments:
David Toomey
Shannon Gilson; Neil Grace; Kim Hart; Mark Wigfield
Sara Morris
FW: CPC Title IT Letter
2014 CPC Net Neutrality Letter.pdf
Attached is a pro Title II letter from the House Progressive Caucus.
----------------------------------------------------------------------------------From: Darner, Michael [mailto:Michaei.Darner@mail.house.gov]

To: David Toomey
Cc: Edgerton, Vic; Mishkin, Kelsey
Subject: CPC Title II Letter
David,
It was a pleasure meeting with your team yesterday. Please find attached a letter from the Co-Chairs of the FCC and 34
of their House Democratic colleagues to Chairman Wheeler. Please let me know if I can answer any other questions you
may have.
Best,
-Mike-
Mike Darner
Executive Director
Congressional Progressive Caucus
(202) 225-2435
O!nngre.an nf tire lllniteir $fates

Uaslfingtnn, 1il@: 20515
May14, 2014
Chairman
445 12th Street, SW
Dear Chainnan Wheeler,
As you develop a proposal to oversee access to the Internet, we urge you to adopt strong
and enforceable open Internet rules that proactively protect Internet users from unfair
practices, including the blockage of lawful traffic or discrimination among content
providers by Internet Service Providers (ISPs). The rules must preserve the Internef as the
open platfonn that it is today by recognizing our nation's communications providers as
common carriers. Without strong protections, the Internet could devolve into a closed
platform in which those who pay the most can overwhelm other views and ideas.
We agree with your previous statements and those from President Obama that expressed
similar concerns. JSPs will continue to explore ways to boost revenue by imposing
discriminatory charges that will decrease the openness of the Internet There is ample
evidence that protecting the open Internet against such threats is critical for users and
businesses alike. However, reports indicate that the current FCC prop<;>sal creates an
Internet fast lane that would prioritize some Internet traffic and allow ISPs to discriminate
against everyone else. The FCC cannot protect the open Internet by allowing
discrimination.
We urge the FCC to use its clear authority under Title II of the Communications Act to
reclassifY the transmission component of broadband Internet access as a
telecommunications service. Recognizing our nation's communications providers as
common carriers under the law is common sense. Reclassification would also complement
the Commission's efforts to promote innovation, competition and investment in universally
available, reliable and affordable broadband infrastructure.
Over one million people have already gone on the record in support of reclassification. We
urge the FCC to consider this support for strong, enforceable open Internet rules as it
moves forward with the rulemaking process.
Sincerely,
PRINTED ON RECYCLED PAPER
Keith Ellison
Member of Congress
&,......... .
Earl Blumenauer
Michael E. Capuano
Member of Congress
Member of Congress
Andre D. Carson
Member of Congress
David N. Cicilline
Member of Congress
Member of Congress
Alan Grayson
Member of Congress
Mike Honda
Member of Congress
Member of Cong
Member of Con ess
atu.
Alan Lowenthal
Member of Congress
Eleanor Holmes Norton

Member of Congress
Beto O'Rourke
Member of Congress
MarkPocan
Member of Congress
Charles B. Rangel
Member of Congress
Member of Congress
Carol Shea-Porter
Member of Congress
MarkTakano
Member of Congress
CC:
Mignon Clyburn, Commissioner, Federal Communications Commission

Jessica Rosenworcel, Commissioner, Federal Communications Commission
Ajit Pai, Commissioner, Federal Communications Commission
Michael O'Reilly, Commissioner, Federal Communications Commission
William Sharkey
Wednesday, April 02, 2014 9:50AM
'Pierre de Vries'; Mark Bykowsky
RE: How the broadband farmers and cowmen can be friends
From:
Sent:
To:
Subject:
Thanks Pierre,
The blog was both amusing and highly relevant to the work that Mark and I have been doing in both spectrum issues and
net neutrality issues.
Bill
From: Pierre de Vries

Sent: Tuesday, April
To: Mark Bykowsky; William Sharkey
Subject: PN: How the broadband farmers and cowmen can be friends
Importance: Low
An engineering view on trading spaces- perhaps amusing given your current struggles ...
From: Geddes- Future of Communications Newsletter [mailto:newsletter=martingeddes.com@mail52.atl71.mcdlv.net]

On Behalf Of Geddes - Future of Communications Newsletter
Sent: Tuesday, March 25, 2014 3:04PM
To: =?utf-S?Q??=
Subject: How the broadband farmers and cowmen can be friends
Fresh thinking about telecommunications

View this email in vour browser
GEDDES
Fresh thinking
How the broadband farmers and cowmen can

be friends
The farmer and the cowman should be friends,
Oh, the farmer and the cowman should be friends.
One man likes to push a plough, the other likes to chase a cow,
But that's no reason why they cain't be friends.

-Oklahoma! by Rodgers and Hammerstein
A previous newsletter explained why it is inappropriate to naively impose historical
common carriage regulations on broadband ISPs. The notion of common carriage
simply doesn't match the nature of the statistically multiplexed broadband
resource. However, that doesn't mean all is well. There are real unresolved
problems of fair and equitable access to that resource, and these are a source of
legitimate disquiet. WhJ'lst today one side of that 'neutrality' conflict is angry and
fearful, the cycle will continue, and at some point the roles will switch.
I have been continuing my discussion with Dr Neil Davies about why the 'telco
supply farmers' and 'user demand cowmen' are at loggerheads. Neither side is
able to hear and empathise with the other side's pain, nor are they able to resolve
their differences outside of law courts. This process is ultimately damaging to all
parties. Everyone needs to make a living from tf?e same shared fertile
communications territory. In the long run, the farmers and the cowmen both have
to succeed, and not at the expense of the other.
How can they become friends again?
False assumptions cause conflict
Many years ago, I came across a 'thinking tool' by Eli Goldratt called the
Evaporating Cloud. Go!dratt taught that "every problem is a conflict, and that
conflicts arise because we create them by believing at least one erroneous
assumption." Thus any route to resolution of this conflict requires the surfacing of
erroneous assumptions of one or both sides.
Both the telco farmers and user cowmen are, in my and many others' experience,
generally people of good intent. They even share the same over-arching goal and
need: a large and thriving broadband-enabled digital economy. They are all wholly
dependent on the vitality of that ecosystem and their shared communications land.
Yet there is bitter division between them. Why so?
The conflict that exists between them is due to the way that they have framed the
nature of broadband as a resource, and their erroneous assumptions about its
capabilities and costs. The telcos are not realising the full potential of the
broadband networks they creating, and users are hoping broadband will do things
that it can't do.
Broadband networks are not 'pipes'
These errors all have their root in a common failure to engage in three simple facts
about broadband networks:
1. They are a shared, and thus contended, resource.

2. That contention cannot be destroyed, only re-allocated.
3. Every choice over re-allocating that contention is always a trade
That implies networks are trading spaces (and at all timescales). This is because
when you grant access for a shared resource to one source of demand, you
implicitly deny it to everyone else. There are no exceptions! Even a lowly FIFO taildrop queue is doing trades, whether or not consciously observed and managed.
Networks are \]1ore like derivatives exchanges than 'pipes': there are 'buyers' and
'sellers' of present and future contention, based on an underlying physical
'information translocation' resource.
The 'neutrality' issue is at its hea1i about control over this trading space to access
the resource. The conflict gets its poisonous energy because both sides reason
about broadband through analogies and metaphors, pejoratively couching the
other side's framing as manifestly wrong. Yet neither side has engaged with the
true nature of the system under discussion!
So what is each side's relationship to the trading space, and the false assumptions
they have?
The telco farmers' beliefs
The telcos have tried (and often failed) to use traffic management and QoS
mechanisms to help them make better resource trades. Their ability to configure
these mechanisms to meet a particular performance or cost outcome is relatively
weak. Indeed, they construct and run multiple (single class of service) overlay
networks, delivering voice, video and Internet access. This prevents any dynamic
trades between these statically allocated resources.
They also fear political or regulatory punishment for 'unreasonable' traffic shaping
that exploits trades, as they become lightning rods for the inherent tensions in the
broadband model. The idea of creating new advanced assured services that
exploit resource trades is seen as highly controversial, and may indeed be actively
discouraged by some regulators.
As a result, they feel there is no alternative to getting a return on their investment

other than good old fashioned way: exploit any termination monopoly available.
What they don't realise is that the trading space is far richer than their networking
textbooks tell them, which only hinted at the trades on offer. The QoS mechanisms
their vendors supply only expose them to a small proportion of the possible 'good'
trades.
Indeed, much of the focus in network research and development has, erroneously,
been on making contention disappear. This defeats the purpose of packet
networking, which is to enable more intense resource utilisation through sharing. It
is the equivalent of building roads to ensure there is always capacity to avoid a
jam. As a result, they are only squeezing out a fraction ofthe value-creating
capability of their networks. Their capital is grossly under-utilised because of the
way they have constructed and configured the trades.
Meanwhile, users are frustrated with the poor performance of important
applications, and many would be delighted to get new services that deliver
experiences they can't get using commodity Internet access. There just isn't any
appropriately formed wholesale market yet where the access providers, CONs and
applications can create the necessary supply chain.
The user cowmen beliefs
The users and their policy representatives often have a na'ive view of the network
trading space. There is an entitlement culture that believes that users should
receive the experience of the wide open country where no other cowmen (and their
associated livestock movements) will ever get in their way. Any failure to deliver is
down to mean and evil telcos 'degrading' their experience and failing to invest in
the network to create artificial scarcity.
The user cowmen believe that any kind of 'trades' will be exploited by the telco
farmers to their disadvantage. After all, the telco farmers have a long and
inglorious histo1y of exploitative monopolistic behaviour: they erect fences to
enclose the land, and assert ownership over unused territory, forcing it to lie fallow
even there are others who could eke out a meagre existence upon it.
Therefore the user cowmen endlessly demand more capacity to reduce contention
effects, for which they are not prepared to pay any premium. They too seek to
defeat the point of packet networking, which is to intensify the use of a shared
resource. Telcos find this economically unsustainable, and thus ultimately must
refuse to play the game.
As a result, users they feel there is no alternative to getting a decent experience

other than good old fashioned way: call in the regulator to prevent the telco from
exploiting its natural termination monopoly to fund the users' own unsustainable
demands.
What they don't realise is that there are ways of constructing networks that can
exploit the trades, but don't turn the telcos into exploitative toll keepers. Control
can be kept with the users, individually and collectively.
The regulator is stuck in the middle
The regulator is left in an impossible situation. On the one hand, they are being
tasked to promote the development of broadband. That means raising capital, for
which telco farmers must get a good return to ensure the land gets improved. You
can only get a good return if you deliver valuable experiences (which means good
performance and dependability), and have low costs.
On the other hand, they are being told by users and broadband campaigners that
they don't want to have the telco involved in any way in helping to create those
good experiences and manage the costs.
Regulators aren't helped by the lawyer and academic classes clinging to a fantasy
that FIFO queues represent some kind of 'neutral' mechanism, and that all packets
were created equal in some kind of Rawlsian system of information justice. (Don't
even ask about their cost models.)
The real issues
To come to some kind of reconciliation, everyone is going to have to align with a

non-negotiable broadband reality: there is a shared resource, and a trading space
for its allocation. There is only one land, and they both have to extract their
livelihoods from it.
Both sides want good application outcomes (revenue to telcos, good experiences
to users), and high resource use (makes it profitable to telcos, and lowers prices to
users). The only way to achieve this is to make lots of good resource trades.
The issues that should be on the table are:

o
What resource trading capability should be created?
Who controls the trades?
..
How do they get offered commercially?
At that point we're in a rational un.iverse of discourse, and reasonable people (and
even their regulatory lawyers) can negotiate based on a shared and reality-based
understanding of the resource in question.
How the farmer and cowman can be friends
We can see that there is only one long-term way of resolving this conflict: to
understand and embrace the trading space, not to try to make contention
disappear. This means a polyservice network that properly exploits the trades. This
should not come as a shock, since every Internet Protocol packet has bits reserved
in its header in anticipation of such a thing. It's just up until now some basic
misconceptions about the nature of the network as a trading space have gotten in
the way.
One you have such a network, which can offer differential levels of quality and
assurance, you can then begin to talk about terms of access. What you care about
is the ability to contract to some kind of outcome for service assurance in a nondiscriminatory manner.
'Network neutrality' is a category error, because it misattributes the equality to

packets. What matters is equality between network users, and their fair access to
whatever services the network offers that exploit the trading space.
After all, if broadband networks are trading spaces by their nature, then they are
also naturally marketplaces. The telco farmers can produce crops of high
performance, which gets sold to the user cowmen to feed their application stock;
those animals in return help fertilise the land with dirty old cash. Everyone gets to
eat a feast of great customer experience beef at the end of the day, washed down
with profit-infused beer brewed from the farmers' crops.
Once that happens, everyone can be friends again.
Martin Geddes (with credit for the original ideas to Neil Davies)
Upcoming public speaking engagements

1st-2nd April, London - WebRTC Global Summit.
29th April-1st May, Barcelona- IMS World Forum.
1Oth-11th June, Munich- Next Generation Services Platforms.
21 st-23rd October, Amsterdam - Broadband World Forum.
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From:
Sent:
To:
Subject:
Henning Schulzrinne
Wednesday, May 14, 2014 5:50PM
'Vishal Misra'
RE: Thoughts on Network Neutrality and Fast Lanes
Also, at some point (e.g., during the formal comments period), I'd like to hear more about why you believe that
discrimination (which I take to be scheduling priority, RST or blocking, among others, as well as peering starvation) is
easily hidden and why a provider would do that if the goal is revenue maximization.
-----Original Message----From: Vishal Misra [mailto:misra@cs.columbia.edu]
Subject: Re: Thoughts on Network Neutrality and Fast Lanes
I know about the UK broadband paper that Alissa Cooper published -I will look more.
Thanks,
-Vis hal
On May 14, 2014, at 5:36PM, Henning Schulzrinne <Henning.Schulzrinne@fcc.gov> wrote:

>Thanks, Vishal. You may want to look at Barbara van Schewick's and Alissa Cooper's thesis material on the interaction
between 01 issues and competition. It's a bit more complicated, I think.
>
>From: Vishal Misra [mailto:misra@cs.columbia.edu]
>Sent: Wednesday, May 14, 2014 11:59 AM
>To: Openlnternet
> Cc: Henning Schulzrinne
>Subject: Thoughts on Network Neutrality and Fast Lanes
>
>Dear FCC,
>
>I am a faculty in the computer science department of Columbia University and have been looking at the Internet
economic ecosystem from a technical and game theoretic (and not legal) point of view for a number of years. I have
blogged about some of it here: http://peerunreviewed.blogspot.com.
>
> 1 am also an entrepreneur and have founded/co-founded multiple companies in the Internet/networking space so I
understand some of the concerns from that viewpoint.
>
>I wanted to make a few points regarding the Open Internet.
>
>-Ex ante description of "Network Neutrality" is extremely difficult from a technical/networking standpoint. While we
all agree to the concept that all packets should be treated equally, technically it is actually impossible to achieve. What is
actually discrimination can easily be achieved and hidden by routing/peering tricks and what appears to be
discrimination can simply be explained by normal load fluctuations. I am yet to find a consistent technical definition of
the principal of Network Neutrality and it is evident FCC is having trouble as well.
>
>-Fast lanes per se are not bad, fast lanes in a monopolistic market are bad. As an east coast academic/entrepreneur,
one of our biggest sources of pride is Akamai. They revolutionized the web experience in the late 90s by creating "fast
lanes" for web publishers. However fast lanes that are created by using captive customers as leverage, as everyone
suspects in the case of Comcast/Verizon and Netflix is not the right way.
>
>-All companies (including mine) want to make money. Netflix is no different from Comcast in that regards, and I am
sure executives of the 100 companies that sent you the letter like to travel by first class (paid prioritization). When the
Dream liner flies, it is a better experience for all consumers- first class as well as coach.
>
>-The real problem for the Internet, as I have no doubt you are well aware, but let me repeat- is lack of competition at
the access layer. That's what makes the content providers different from access ISPs. Content providers have to
compete in the open market, access ISPs rarely face competition. It is always in the public's benefit if companies are
competing for their dollars. Unbundling of the last mile and/or municipal broadband appears to me to be the best way
to promote competition in the last mile.
>
>-Antitrust or merger reviews are the best time to propose open access regulations. I humbly suggest that the two
issues of the Comcast-TWC merger and Open Internet be linked, and unbundling be made a condition for the merger.
Researchers are eager to tackle any technical challenges, e.g., in making HFC unbundling economical and scalable.
>
>-Around the world, Network Neutrality has never been an issue when there is true competition at the last mile. These
two studies have a lot of data to support that:
>
> http://www .oecd-ili bra ry.o rg/d ocserver /down load/5 k49qgz7 crm r .pdf
>and
> http://workspace.unpan.org/sites/internet/documents/B00010%20A%20Comparison%20of%20Network.pdf
>
>We should be focusing our regulatory, legislative and activism energy in solving the real problem, that of access
competition. If we do that, Network Neutrality is gained "for free". Otherwise it is whack-a-mole.
>
>Regards,
> -Vishal
>
> ->
From:
Sent:
To:
Subject:
Henning Schulzrinne
Ken Calvert
Re: the net neutrality debate
Ken,
great to hear from you!
I don't think we have tried this before, partially because it's difficult to do this during the rule-making process. As tends to
get lost during much of the press coverage, the document to be voted on May 15 is a "notice of proposed rule making",
which has probably a question-mark-to-period ratio of close to 1:1 (I'm exaggerating, but only slightly). The draft, as is
common, raises many possible options, along a spectrum and, while reaching some tentative conclusions, has to be fairly
open. It would be hard to reproduce the balance struck (which needs to reflect the vote of at least three of the five
commissioners) in a video, I think.
Another alternative is to have a university or other non-carrier-affiliated entity do this [insert sound of hint dropping], which
might be a lot easier. You might even be able to get interviews from some of the FCC staff.
I'll forward your note to some colleagues.
Henning
Hi Henning - Hope things are well with you and your family.
Executive Summary: I think a documentary video explaining all sides of the "net neutrality debate" would be very
useful. We have a group here that has done similar documentaries in the past, and they were well-received. I'm
wondering if the FCC might be interested in producing something of that nature, and hoping you might be able to
put me in touch with someone to talk to about it.
Longer version: I'm writing as Interim Director of the Center for Visualization and Virtual Environments at
Kentucky. We have an excellent media group whose mandate is to tell the story of the research in the Center and
across campus. They are good at what they do. About four years ago they made an hour-long documentary
(funded by the state) called "Coal in Kentucky". (see vis.uky.edu/vis-media/) It did a great job presenting the many
diverse viewpoints about the coal industry in this state.
I'm motivated to write because media coverage of the recent FCC proposal is making my head explode on a daily
basis. I talk to people - including some of my colleagues- who are clueless about how the internet works, but are
convinced the proposal is evil, because the media are telling them it's going to destroy free speech and the
freedom of the internet.
1 think a documentary that explained the situation from all sides- technical, business, and political- in an unbiased
way, would be a Really Good Thing. Do you know whether the FCC is doing anything like that? Or might be
interested? Any pointers would be appreciated.
Best regards,
Ken
PS. Looking forward to seeing you and hearing your talk in Trondheim!
Ken Calvert
Professor. Computer Science
Interim Director, Center for Visualization and Virtual Environn1ents
University of Kentucky
From:
Sent:
To:
Subject:
Robert Cannon
'Bill Woodcock'
RE: Internet interconnection
Let's try to set up a time, sort of at our convenience. Meaning I have been moving so fast I am finding I need to slow
down and catch my breath. If you are going to be here any time in person, I would prefer that. But if not, then maybe a
video conference (Google Chat- I don't think I can use skype inside this building?).
Below is from today's Communications Daily. It is an issue that is readily before us. Again, your OECD research has been
referenced. But I think, you know, one of the big concerns here isn't interconnection between core networks, its
interconnection between core and access networks- and whether access networks can use their position to gain an
improper advantage (sometimes called a terminating monopoly). Or, in other words, what do you do about the Netflix I
Com cast problem. Is it your position (based on your OECD paper) that the market will just solve this?
Think about it. kc claffy and David Clark will be here Friday.
B
New Net Neutrality Rules Won't Cover Peering, Interconnection Issues FCC Chairman Tom Wheeler doesn't intend to
consider interconnection or peering in any net neutrality redo, an FCC spokesman confirmed Tuesday. Tomany industry
and agency officials, this doesn't come as a surprise. "It's not really a change in the status quo," one agency official told
us. But it's disappointing to net neutrality proponents who thought the discriminatory effects of interconnection fights
might finally get the regulatory oversight the issue deserves.
Netflix CEO Reed Hastings asked the FCC last month (CD March 24 pl) to consider mandating "no-fee" interconnection
agreements as it takes on a rewrite of the net neutrality rules post Verizon v.
FCC. At Monday's commissioner meeting, Wheeler said that while the government has a role to play in overseeing how
networks connect to each other, peering and interconnection are "not a net neutrality issue."
A spokesman elaborated: Peering was never part of the open Internet rules, and Wheeler doesn't intend to change the
scope of those rules. Wheeler just plans to restore those rules through use of the court's guidance, the spokesman said.
The FCC is keeping an eye on interconnection in "other contexts,"
he said, but wouldn't elaborate on which that might be.
It's just another way of phrasing what Wheeler has been saying for months, industry and agency officials said. An AT&T
spokesman pointed to Wheeler's comments at January's State of the Net conference, in which he said that peering and
interconnection were a "cousin" of net neutrality that the agency intends to stay on top of (CD Jan 29 pl). The open
Internet order didn't deal with peering or interconnection, an FCC official told us. When people talk about net neutrality,
it's been about how the data flows over the ISP's network, not how it gets to the ISP's network, the official said.
Netflix calls for a "strong net neutrality" seem like an attempt to redefine what net neutrality is, the FCC official said.
Based on Wh'eeler's statements, it seems his office doesn't want to go in that direction, the official said, speculating that
the upcoming net neutrality NPRM likely won't get into issues of peering and interconnection.
"Level3 has heard Chairman Wheeler say in the past that he views network neutrality and interconnection as closely
related, and with good reason," said General Counsel Michael Mooney. "You cannot effectively address net neutrality
concerns without also addressing the interconnection with last mile bottleneck ISPs. Whether ISPs are trying to extract
tolls from edge providers directly or from backbone providers- who then pass those tolls on to edge providers- the
harm to the open Internet is the same."
ISPs discriminating against competing voice or video services can do so "just as easily by targeting the transit providers
those competing services use as they can by targeting the competing services directly,"
Mooney said. "That's exactly what's occurring right now." Level 3 "can and will continue to advocate that those
discriminatory harms be addressed by the FCC," he said. "It doesn't matter whether you call it 'net neutrality' or the
'open Internet' -it's a problem the FCC needs to address now."
Under Section 706 of the Communications Act, the agency "certainly could have expanded net neutrality to
interconnection," said TechFreedom President Berin Szoka. It has seemed like the FCC has been interested in becoming
more active in this area, he said. "On the other hand, I'm not surprised here at all because there simply is no
demonstrated problem- just a lot of clever political posturing by Netflix and handwringing by bloggers who don't
understand interconnection," Szoka said. "There's no need for new regulation on top of the antitrust laws, as the FCC
itself rightly noted when it decided not to include interconnection in the Open Internet order." But just because the FCC
isn't including interconnection in this rulemaking doesn't mean that a future rulemaking might not cover it, he said.
Wheeler could also regulate interconnection "informally on a case-by-case- basis," Szoka said. "Section 706 as
interpreted by the DC Circuit doesn't seem to require that the FCC actually formally regulate, although the FCC might
have a strong incentive to do so, so it can claim Chevron deference."
"It shows impressive restraint, and is consistent with what is emerging as Wheeler's generally 'adult' approach,"
said Geoffrey Manne, executive director of the International Center for Law & Economics. "As a practical matter, the
court's confirming of the FCC's broad authority under [Section]706 would permit, it seems to me, a much-furtherreaching approach. So the idea of using the opportunity only to 'restore' - but not go beyond -the Open Internet
Order strikes me as appropriate and restrained," said Manne by email.
COMMUNICATIONS DAILY-4 WEDNESDAY, APRIL 2, 2014 Interconnection and peering are "exactly what the open
Internet proceedings should consider," said Marvin Ammori, New America Foundation fellow and longtime net
neutrality proponent. He pointed to filings by Level 3 and Cogent saying that the ISPs are letting the pipes congest and
requiring companies like Netflix to get direct connection and charging them per megabit far beyond the cost of
interconnection.
"It makes sense to do it within the open Internet docket," given that the net neutrality rules were an outgrowth of an
earlier FCC policy statement stating users have the right to access an open and free Internet, he said. Letting the pipes
congest until they can get payment is just another way for ISPs to block or discriminate against services, Ammori said. He
expects there will be comments on interconnection and peering regardless of how the FCC tries to limit it in the NPRM.
Once the agency understands the "urgency"
of the potential interconnection problems, "I think they could be persuaded otherwise," Ammori said.
"I hope that it's true that the FCC intends to show some regulatory restraint in this regard, despite the pleas of Netflix
for the commission to lend it a helping hand," said Free State Foundation President Randolph May. "I'd be happy to be
proven wrong, but as long as the FCC continues to consider net neutrality rules, in one forum or another, I'd be
surprised if the peering issue is really dead.
-----Original Message----From: Bill Woodcock [mailto:woody@pch.net]

To: Robert Cannon
Subject: Re: Internet interconnection
Always happy to talk on the phone or videoconference. I'm on very limited travel for a while.
I do, of course, have a lot of opinions about this stuff. L3 is one of our larger donors, so I need to be circumspect about
their specific proposal.
-Bill
2
>On Mar 25, 2014, at 0:22, "Robert Cannon" <Robert.Cannon@fcc.gov> wrote:
>
>There are a lot of forces swirling. The Open Internet rules have been remanded to us and we are revisiting them.
Customers are complaining about their Netflix over Verizon or over Com cast experience. Lots of parties have been in to
talk to us, and many have suggested that interconnection problems are pervasive.
>
>Your OECD paper gets noted regularly.
>
>It is also beginning to get media coverage.
>
>Working on getting a tour of Equinix for FCC VIPs.
>
>B
>
>-----Original Message----> From: Bill Woodcock [mailto:woody@pch.net]
>Sent: Monday, March 17, 2014 8:02PM
>To: Robert Cannon
>Subject: Re: Internet interconnection
>
>
On Mar 14, 2014, at 2:45 PM, Robert Cannon <Robert.Cannon@fcc.gov> wrote:
>>
I know I own you on a matter that is far more important than this, but there is a lot of energy at the FCC on Internet
things like Netflix and Com cast et al. It might be an extremely expedient time for you to visit, if you
happen to be in town.
>
> Hey ... Yeah, I don't have a lot oftravel scheduled. I did get to D.C. for one day, to talk to a delegation of African
intergovernmental organization heads (AU etc.) about Internet economics, but that was out on a red-eye, and back the
next evening. If there's anything you think I could usefully do by video-chat, I can certainly do that. I just spent all
morning briefing State Department folks (who were in their respective homes, I guess, due to the weather) in
preparation for their ITU meetings in Dubai in two weeks.
>
>
>
>
>
>
-Bill
From:
Sent:
To:
Subject:
Palchick, Mark <MPalchick@wcsr.com>

Friday, May 16, 2014 10:00 AM
Mark Bykowsky
RE: Protecting and Promoting the Open Internet
Thank you. I look forward to reading it and have you explain it to me

Mark J. Palchick
TEL: (202) 857-4411
FAX: (202) 261-0011
EMAIL: MPalchick@wcsr.com
1200 Nineteenth Street, N. W.
Fifth Floor
From: Mark Bykowsky [mailto:Mark.Bykowsky@fcc.gov]

Sent: Friday, May 16, 2014 9:55AM
To: Palchick, Mark
Cc: Jacobs, Rebecca
Subject: RE: Protecting and Promoting the Open Internet

Mark,
Thank you for your email.
The referenced work has not been completed, as of yet. I will give you a heads-up when it is completed.
Best- Mark
From: Palchick, Mark [mailto:MPalchick@wcsr.com]

To: Mark Bykowsky
Cc: Jacobs, Rebecca
Subject: Protecting and Promoting the Open Internet

Importance: High
M
Is the economic analysis of the internet that
you worked on available to the public. If so, how can I get a copy?
Mark J. Palchick
TEL: (202) 857-4411
FAX: (202) 261-0011
EMAIL: M Palch ick@wcsr. com
1200 Nineteenth Street, N.W.
Fifth Floor
1
230 NOTICE: To ensure compliance with reqwrernents imposed by the IRS, we inform you that any U.S. tax advice contained in this
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Revenue Code or (ii) promoting. marketing or recommending to another party any transaction or matter addressed in this communication (or in any attacl1ment).
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From:
Sent:
To:
Subject:
Jonathan Levy
Wednesday, April 02, 2014 10:39 AM
'ian.martin@cimb.com'; Jeremy Beale
RE: CIMB Telescope 2014 No 27: iiNet signs onto NBN Co?s WBA; ITU highlights need
for telecoms regulatory reform
Thanks ian and hello Jeremy. I hope that you are well.
Jonathan
From: ian.martin@cimb.com [mailto:ian.martin@cimb.com]

To: Jeremy Beale; Jonathan Levy
Subject: Fw: CIMB Telescope 2014 No 27: iiNet signs onto NBN Co?s WBA; ITU highlights need for telecoms regulatory
reform
See the story below re ITU report on 4th generation regulation.
This is what I'm talking about.
ian Martin
Director,
Senior Equity Analyst, Telecommunications
Tel:+ 613 9631 10181 Mobile:+ 61 408 88 98 08
www.cimb.com
----Forwarded by ian Martin/RES/AU/RCORP on 02/0412014 08:53AM----From:
To:
Date:
Subject:
ian Martin/RES/AU/RCORP
02/04/2014 08:53AM
CIMB Telescope 2014 No 27: iiNet signs onto NBN Co's WBA; ITU highlights need for telecoms regulatory reform
----------
CIMB Telescope 2014 No 27
iiNet signs onto NBN Co's WBA
iiNet confirmed it has now signed up to NBN Co's wholesale broadband agreement (WBA). In January iiNet advised it
had concerns about the WBA and refused to sign up to it, "describing it as a breeding ground for bad service." (See
Telescope No 3, 23 Jan 2014.) An
spokesman confirmed the RSP had reached a "mutually acceptable agreement"
with NBN Co before the March deadline. A key concern was that NBN did not have to pay for missing appointments to
connect iiNet customers. A failure by NBN Co to sign up to the WBA may have locked its customers out of the future
NBN rollout. iiNet currently reported 30k NBN customers nationally, of which 20k are FTTP. The West Australian reports
it has "about half of the WA homes connected to the service. It sees the NBN rollout as a major part of its future
strategy." (Yahoo? News, The West Australian, 1 Apri12014).
NBN: First round of compulsory copper disconnections on 23 May
The first round of compulsory copper disconnections (landline phone, ADSL internet and Telstra cable) in NBN Co's Initial
rollout sites commence on 23 May (we believe covering c19,000 premises). NBN Co is launching "a final big push to get
residents and businesses to make the switch". It has also launched a register of people on medical devices attached to
fixed communications. Comms Day says RSPs are so far restrained in a land grab for fixed-line customers. iiNet advised,
"We're communicating through direct mail, and other public communication methods, to those areas; we're committed to
getting a larger share as a leading NBN provider, and we're finding that we're getting a higher proportion [of the customer
1
base] than we would in other areas on ADSL." Telstra has also previously indicated it's pleased with its very early-stage
NBN take-up. TPG and M2 Tel's Dodo have only recently launched NBN consumer plans. Beyond the switch-off date,
Telstra is managing a process with up to 30 days for disconnection for those that haven't taken up an NBN service
including 20 with soft-dial tone (ie calls in and emergency calls out). By 2H15 the rate of copper disconnections is
expected to reach over 1OOk per month driving over A$1 00-150m per month in PSAA/LIC payments to Telstra. However,
if management issues emerge through the May pilot the ramp in disconnections may be delayed. (Communications Day,
31 March 2014).
Optus to issue extensive corrections to misleading mobile advertising for an entire month
Optus has been ordered by Justice Elliott to place corrective ads in The Australian, "the other newspapers in all of the
capital cities, plus the regions in which the advertisement was broadcast" as part of a Victorian Supreme Court ruling that
found it had misled the P.ublic about the coverage of its mobile network. (See Telescope No 12 and No 19.) It has been
. ordered to write letters to new mobile customers and offer them penalty-free exits from mobile phone contracts. For an
entire month, every Optus store and agency will be forced to carry an A1-sized banner ad that tells visitors it was wrong.
Five of its most popular web pages will also be required to display the same information in size 12 font. (Source: The
Australian Financial Review, The Australian, 1 April 2014).
ITU highlights need for telecoms regulatory reform ... create the right incentives
A new report from the International Telecommunications Union (ITU)-'4th generation regulation: driving digital
communications ahead,'-has highlighted the need to find the "balance between creating the right incentives and
enforcing necessary rules." The report noted that "the 'fourth-generation regulator' must oversee an increasing range of
services, delivered over multiple broadband and converged networks that form the digital ecosystem ... "
The ITU pointed to net neutrality as an "important issue" as RSPs explored flow management technologies to handle
the "huge growth of data being carried over telecommunications networks. The question of whether action is needed to
ensure unfettered access to the Internet is still being debated and challenged."
In relation to interconnection it has "consumed a disproportionate amount of regulatory effort over the past 20 years
But price regulation has not always yielded an adequate return on the investment of regulatory effort. Is it time now to
learn and apply the lessons of the largely unregulated internet?"
[CIMB Comment: we see this as a critical issue for telecommunications infrastructure investors given the recent
experience of fixed network regulated pricing in Australia and New Zealand, the transfer of value from those invested in
networks to users of networks and the emerging risk of mobile network regulation. In our view regulators in Australia and
New Zealand don't understand investment issues-notably risk and incentive-sufficiently well to regulate access prices
efficiently.] (Source: Communications Day, 2 April)
Several Telecom NZ developments
Telecom NZ (soon to be Spark) has agreed to sell its 60% interest in Telecom Cook Islands Ltd for cNZ$23m to Digicel
subject to a number of conditions and is expected to complete by 31 May 2014. The sale had been foreshadowed at its
investor strategy day in May 2013. It has also announced an exclusive partnership with JB Hi-Fi to sell Skinny mobile
prepay, Telecom prepaid and pay monthly mobile plans from 7 April. JB Hi-Fi has 13 stores in NZ and will be the first
mass market retail store with the ability to sell Telecom home broadband packages. The company has also released a
shareholder update with 1H14 highlights and recent developments. (Source: Telecom 2014 shareholder update,
Voxy.com.nz, 1 April 2014).
Telstra CEO David Thodey on the need for innovation
Disruptive digital technologies are stimulating the global wave of change that is connecting everyone to everything using
smart devices and smart networks. But technology doesn't innovate, people do, and this rapid change is defining the new
skill sets and mind sets needed to compete in the future. The challenge for governments and industries alike is how to
harness this new period of innovation and, in particular, how to nurture those with the skills as well as what Netanyahu
called "the indispensible ingredient of entrepreneurship". We must cherish our start-up sector with its raw, ingenious talent
and minds free of legacy thinking. Start-ups hold many of the growth opportunities for our economy. (Source: Telstra
exchange) http://exch anqe. telstra.com .au/20 14/04/01 /size-means-noth inq-in-b uildinq-an-in novation-nation/
Quickbytes
Chorus has issued 13.9m CFH equity securities, 13.9m debt securities and 0.89m CFH warrants to Crown Fibre
Holdings in the latest capital contribution to support the UFB rollout.
2

BT Openreach is offering UK-based service providers more wholesale capacity with a 100G-based
service. Openreach claims that the new services will enable RSP customers "to transport larger amounts of data, over
longer distances, in a more cost effective way." (Fierce Telecom, 1 April2014).
April Fool's day offers from Telstra and iiNet: Telstra offers the #connectedpet phone,a drool-proof voice-enabled
mobile phone for cats and dogs, with GPS tracker: iiNet offers Pet-Fi, "the world's first pet-powered mobile broadband
solution ... to transform your pet into the ultimate- yet cuddly- Wi-Fi hotspot and mobile broadband modem ... powered
by your pet's kinetic energy." [Gotta push those penetration rates up.] (telstra.com.au, iiNet.net.au 2014).
!an Martin
Director,
Tel:+ 613 9631 10181 Mobile:+ 61 408 88 98 08
vvww.cimb.com
.Amcom
Chorus
iiNet.
TPG Telecom
r.1aoquarie Telecom
1.12 Telecom
Vocus%
Big Air
Mean
Bharti"
China Telecom"*
China Unicorn*
KT Corp*
Tel Indonesia
PLOT"
PT lndosat*
StarHub..
Mean
China t.lobile*
SK Telecom
A IS'"
Total Access ..
Digi.com*
t.1obile0ne*
Telefonica*
BT Group
KPW
C&:W Communications'
Telia Sonera
Belgacom'
Telecom ltalia"'
Verizon*
Mean
Mean Full Service
Mean Mobile
Mean Total
17.9x
18.4x
4
Source: CIMB Estimates, *Bloomberg Consensus
[ List of CIMB Analysts Coverage & Regional Offices details, click here ]
Disclaimer: No part of this report may be reproduced or distributed in any manner without the written permission of CIMB and its affiliates. CIMB and its affiliates
specifically prohibits the redistribution of this report, electronically or otherwise, and accepts no liability whatsoever for the actions of third parties in this respect.
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From:
Sent:
To:
Subject:
Jonathan Levy
'ian.martin@cimb.com'
RE: More open internet stuff
Hi ian:
I DID know Jeremy; it is just that in my old age I forgot from where. Now that you remind me it was OECD.
Jonathan
To: Jonathan Levy
Subject: RE: More open internet stuff
Hi Jonathan,
I think the investment issue has resurfaced with the growth in OTT in countries with high levels of pre-paid (India and
Indonesia). Most other markets have majority of subs in post-paid bundles. In fixed line it has resurfaced in Aust and NZ
because carriers can't afford to build national fibre networks at access rates set below average cost of copper networks.
Apologies, I thought you knew Jeremy Beale. He is a telco/lnternet economist of long standing and has worked with
OECD and ICANN.
He worked with Dimitri Ypsilanti at OECD and may have done some work with Martin Cave.
Anyway, he is an old friend from telco world, much as you are.
best wishes, Ian
ian Martin
Director,
Tel:+ 613 9631 10181 Mobile:+ 61 408 88 98 08
www.cimb.com
Disclaimer
The document is being provided to wholesale clients for information purposes and contains general advice only.
The information contained in this document has been prepared by CIMB Securities (Australia) Limited (ABN 84 002 768 701, AFSL 240530) ("CIMB Securities")
and has been taken from sources believed to be reliable.
Nothing in the document should be construed as legal, tax, regulatory, accounting or specific investment advice from CIMB Securities.
needs, objectives and financial circumstances. CIMB Securities makes no representations or warranties with respect to the information and disclaims all liability
for any use you or your advisers make of the contents of this document. Any opinions, forecasts and estimates contained in this document are subject to change
without notice.
From:
Jonathan Levy <Jonathan.Levv@fcc.gov>
To:
"'ian.martin@cimb.com"' <ian.martin@cimb.com>,
Date:
01104/2014 12:33 AM
Subject:
RE: More open internet stuff
Greetings lan:
Glad you found this stuff useful. I noticed the old fashioned way (by reading the paper version of the New York Times this
morning) that the European Parliament is debating net neutrality regulations as well. I view this as deja vu all over again.
The question of maintaining infrastructure investment incentives and encouraging capacity-using innovation is an old one.
But in the absence of competition in infrastructure, it is really hard.
Congratulations on your new position. I hope that it allows you plenty of family time. And, since I am getting old and
forgetful, please remind me about Jeremy Beale.
Best,
Jonathan
Sent: Sunday, March 30, 2014 8:42 PM

To: Jonathan Levy
Subject: Re: More open internet stuff

Hi Jonathan,
Thanks for all that. I am planning a report on this in June; key implications for my clients where they are investing in
infrastructure but unable to achieve a sufficient return.
ie is it due to some risk shifting ie that infrastructure investors bear the related risk but content providers, OTI apps etc
realise the benefits. Not sure how big an issue in Asia Pac but certainly a concern for investors given the way fixed BB
had been regulated.
I have young Jeremy Beale pulling some material together at this early stage.
BTW, I am now Regional Head of Telco research for CIMB. One day I will learn how to change my signaturee block to
relfect it.
Hope all is well, ian
lan Martin
Director,
Tel:+ 613 9631 10181 Mobile:+ 61 408 88 98 08
www.cimb.com
Disclaimer
Nothing in the document should be construed as legal, tax, regulatory, accountir)g or specific investment advice from CIMB Securities.
without notice.
From:
To:
Jonathan Levy <Jonathan.Levy@fcc.gov>

"ian.martin@cimb.com" <ian.martin@cimb.com>,
21/0112014 06:59AM
Date:
More open internet stuff
Subject:
Jonathan Levy
(202) 418-2048
[attachment "114 14 Alert Net Neutrality- Verizon Win at Court Likely to Sustain th .... pdf" deleted by Ian Martin/RES/AU/RCORP]
[attachment "114 14 Erratum Court Upholds FCC Authority But Guts Open Internet Rules .... pdf" deleted by ian
Martin/RES/AU/RCORP] [attachment "114 14 Net neutrality ruling VZ other ISPs win consumers could lose GMS .... pdf" deleted by
ian Martin/RES/AU/RCORP] [attachment "114 14 NetCompetition Statement on Verizon v FCC Cleland.pdf" deleted by ian
Martin/RES/AU/RCORP] [attachment "11414 Industry Tidbit VZ vs FCC RJames.pdf" deleted by ian Martin/RES/AU/RCORP]
** *********** *** ***** ** *** *** ***** ** *** ******* *** ****** ** ***** ********* Privileged/confidential
conclusions, statements and other information in this message that do not relate to the official business of CIMB
Damansara Heights, 50490 Kuala Lumpur, Malaysia. Visit our website at www.cimb.com
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3
Damansara Heights, 50490 Kuala Lumpur, Malaysia. Visit our website at W\Vw.cimb.com
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Jonathan Levy
From:
Sent:
To:
Subject:
ian.martin@cimb.com
Sunday, January 19, 2014 9:09 PM
Jonathan Levy
Net neutrality
Hi Jonathan,
Has the FCC had anything to say about the recent Federal Appeals Court ruling on net neutrality?
Here is my spin, which stretches its implication for investors in Australia; apologies if its a sensitive matter.
I am lobbying for the ACCC to be replaced as telco industry regulator by a specialist that knows what it is doing and is
relatively hands off.
Hope yrwell.
regards, lan
Net Neutrality ruling highlights regulatory activism
A US Federal Appeals Court has rejected the basis for regulated net neutrality rulingagainst several of the US FCC's
rules mandating that ISPs be given equal treatment to content over their networks. The local IT industry has expressed
concern about the ruling's impact on their preferred view of the Internet although 'net neutrality' isn't regulated as such in
Australia. Rather, the ruling highlights and rejects the generic issue of unelected regulators setting their own preferred redistributional agenda rather than letting market players price and invest in response to the market. In our view the ACCC
has done much the same thing through its preference for setting fixed network access prices below cost levels and in a
structure that impedes market efficiency but rewards the ACCC's preferred respondents.
Jan Martin
Director,
Tel:+ 613 9631 10181 Mobile:+ 61 408 88 98 08
www.cimb.com
Disclaimer
Nothing in the document should be construed as legal, tax, regulatory, accounting or specific investment advice from CIMB Securities.
without notice.
**** *********************************************************** ******** Privileged/confidential

1
Damansara Heights, 50490 Kuala Lumpur, Malaysia. Visit our website at www.cin1b.com
***********************************************************************
From:
Sent:
To:
Subject:
Gigi Sohn
Sunday, April13, 2014 5:06 PM
Ruth Milkman; Deborah Ridley; Jonathan Sallet; Philip Verveer; Daniel Alvarez
Re: Coming to DC next week 1 meeting with the Chairman?
----- Original Message----From: Ruth Milkman

Sent: Sunday, April13, 2014 02:40 PM
To: Gigi Sohn; Deborah Ridley; Jonathan Sallet; Philip Verveer; Daniel Alvarez
Subject: Re: Coming to DC next week I meeting with the Chairman?
Ruth Milkman
Chief of Staff
202 418 2107
----- Original Message----From: Gigi Sohn
Sent: Sunday, April13, 2014 11:23 AM Eastern Standard Time
To: Deborah Ridley; Ruth Milkman; Jonathan Sallet; Philip Verveer
Subject: Fw: Coming to DC next week I meeting with the Chairman?
-----Original Message----From: Barbara van Schewick [mailto:schewick@stanford.edu]

Sent: Thursday, April10, 2014 03:41 PM
To: Gigi Sohn
Cc: Elaine Adolfo <eadolfo@stanford.edu>
1
Subject: Re: Coming to DC next week I meeting with the Chairman?

HiGigi,
1just wanted to see whether you have had a chance to think about this. I'm meeting all of the other Commissioners
(except for Commissioner Pai, with whom I met last time) and Jon Sallet, as well as people in Congress. It would be great
if 1 could have some time with the Chairman to talk with him directly.
Best,
Barbara
Associate Professor of Law and (by Courtesy) Electrical Engineering Helen L. Crocker Faculty Scholar Director, Center for
Internet and Society Stanford Law School
Crown Quadrangle
Phone: 650-723 8340
-----Original Message---->From: "Barbara van Schewick" <schewick@stanford.edu>
>To: "Gigi Sohn" <Gigi.Sohn@fcc.gov>
> Cc: "Elaine Adolfo" <eadolfo@stanford.edu>
>Sent: Wednesday, April 9, 2014 9:54:02 PM
>Subject: Coming to DC next week I meeting with the Chairman?
>
>Hi Gigi,
>
> It was great to talk with you recently. At our meeting, you and Phil
>suggested I should meet the Chairman the next time I'm in DC. I'll be
>in town all of next week and hope we can find a time for me to meet with him.
> I'm copying Elaine Adolfo, who is in charge of my schedule.
>
>Best,
>Barbara
> -->Barbara van Schewick

>Associate Professor of Law and (by Courtesy) Electrical Engineering
> Helen L. Crocker Faculty Scholar Director, Center for Internet and
>Society Stanford Law School
>
>Author of "Internet Architecture and Innovation," MIT Press 2010
> www.netarchitecture.org
>
>Crown Quadrangle
> 559 Nathan Abbott Way
>Stanford, CA94305-8610
2
>
>Phone: 650-723 8340
> E-Mail: schewick@stanford.edu
>
>
From:
Sent:
To:
Cc:
Subject:
Barbara van Schewick <schewick@stanford.edu>

Gigi Sohn
Philip Verveer; Jonathan Sallet
Re: Meeting with influential VC Brad Burnham this Thursday?
Thanks, Gigi.
Best,
Barbara
Professor of Law and (by Courtesy) Electrical Engineering Helen L. Crocker Faculty Scholar Director, Center for Internet
and Society Stanford Law School
Crown Quadrangle
Phone: 650-723 8340
-----Original Message---->From: "Gigi Sohn" <Gigi.Sohn@fcc.gov>
>To: "Barbara van Schewick" <schewick@stanford.edu>, "Philip Verveer" <Philip.Verveer@fcc.gov>, "Jonathan Sallet"
> <Jonathan.Sallet@fcc.gov>
>Sent: Tuesday, April 22, 2014 8:14:50 AM
>Subject: RE: Meeting with influential VC Brad Burnham this Thursday?
>
>I met with Brad about 6 weeks ago and I believe that Phil was with me. I'll
>contact Brad directly, as I'll want to speak with him regardless. Thanks.
> Gigi
>
>-----Original Message----> From: Barbara van Schewick [mailto:schewick@stanford.edu]
>Sent: Tuesday, April 22, 2014 11:06 AM
>To: Philip Verveer; Gigi Sohn; Jonathan Sallet
>Subject: Meeting with influential VC Brad Burnham this Thursday?
>
>Dear Gigi, dear Phil, dear Jon,
>
>When I was in DC, a number of people mentioned that the Chairman's
>office would like to hear from entrepreneurs and investors directly.
>I'm writing to recommend that someone in the Chairman's office meet
>with Brad Burnham, an influential venture capitalist who is in DC this
>Thursday (4/24). Brad Burnham is co-founder of and partner at venture
>capital fund Union Square Ventures. He and Fred Wilson, his co-founder
1
>and partner at USV, were early investors in Twitter, Tumblr,

> Kickstarter, Zynga, Foursquare, Boxee and other Internet household names.
>
>Brad and Fred are heroes in the entrepreneurship community, and their
>word carries enormous weight. The press regularly calls them
>"legendary" or "rock star" investors (see, e.g.,
> http://www. businessinside r.com/fred-wilson-interview-2014-4 and
> http://www.nydailynews.com/new-york/rockstar-investor-major-donation-brooklyn-chess-team-article-1.1535336).
>Brad and Fred have been very vocal supporters of network neutrality.
>You can read some of their writing on the topic here:
> https://www.usv.com/posts/internet-access-should-be-application-agnost
> ic and http://avc.com/2014/01/vc-pitches-in-a-yea r-or-two/.
>
>Brad and his partners are very concerned about the FCC's current plans
>regarding network neutrality. I think you would find his perspective
>very useful. I'm very sorry for the short notice. I only heard that
> Brad is going to be in DC last night.
>
>If you or someone else in the Chairman's office are interested in
>meeting with Brad this Thursday, I would be happy to connect you with him.
>
>Best,
>Barbara van Schewick
> -->Barbara van Schewick
>Professor of Law and (by Courtesy) Electrical Engineering Helen L.
>Crocker Faculty Scholar Director, Center for Internet and Society
>Stanford Law School
>
>Author of "Internet Architecture and Innovation," MIT Press 2010
> www.netarchitecture.org
>
>Crown Quadrangle
> 559 Nathan Abbott Way
>Stanford, CA94305-8610
>
>Phone: 650-723 8340
>E-Mail: schewick@stanford.edu
>
>
>
From:
Sent:
To:
Cc:
Subject:
Gigi Sohn
'schewick@stanford.edu'
Philip Verveer; Jonathan Sallet; Roger Sherman
Re: Meeting with influential VC Brad Burnham this Thursday?
Barbara- Brad spoke to me, Phil and Roger at length about net neutrality- he was *supposed* to talk to us about
spectrum, but instead spoke with us about net neutrality for 45 minutes. He has probably just forgotten- I even joked
with him about the fact that I had invited Roger on the promise that we were going to talk spectrum, and instead we
talked about net neutrality.
That being said, I plan on emailing Brad today about meeting with him tomorrow when he is in town. I will invite Jon and
Phil to join me if they can. Thanks. Gigi
-----Original Message----From: Barbara van Schewick [mailto:schewick@stanford.edu]
Sent: Wednesday, April 23, 2014 01:23 PM
To: Gigi Sohn
Cc: Philip Verveer; Jonathan Sallet
Subject: Re: Meeting with influential VC Brad Burnham this Thursday?
Dear all,
I just talked with Brad Burnham, and he told me that he met with Gigi, Roger Sherman and another lawyer from the
wireless bureau about six week ago to talk about spectrum issues and start ups, and a little bit about network neutrality.
He has not talked with anybody in the Chairman's office about network neutrality.
I understand it is very late and you are all very busy, so I assume it is probably too late to set up a meeting with Brad, but
if you do have some time, I really think it would be useful and instructive to meet with him. He can explain first hand
how the threat of blocking, discrimination and access fees will affect application innovation and investment and what
kind of regulatory solution start ups need to be protected.
I know he is at the FCC tomorrow morning. I'm about to start teaching and will be offline for the next couple of hours, so
if you are interested in meeting him, it would make sense if you reached out to him directly. His e-mail is "Brad
Burnham" <brad@usv.com>; his assistant is "Gillian Area" <gillian@usv.com>, and they know I have been talking with
you about a meeting.
Again, I'm very sorry this is so late. I totally understand if it doesn't work out, but I wanted to at least give you the
opportunity to consider this.
Best,
Barbara
Professor of Law and (by Courtesy) Electrical Engineering Helen L. Crocker Faculty Scholar Director, Center for Internet
and Society Stanford Law School
Crown Quadrangle
Phone: 650-723 8340
-----Original Message---->From: "Gigi Sohn" <Gigi.Sohn@fcc.gov>
>To: "Barbara van Schewick" <schewick@stanford.edu>, "Philip Verveer" <Philip.Verveer@fcc.gov>, "Jonathan Sallet"
> <Jonathan.Sallet@fcc.gov>
>Sent: Tuesday, April 22, 2014 8:14:50 AM
>Subject: RE: Meeting with influential VC Brad Burnham this Thursday?
>
>I met with Brad about 6 weeks ago and I believe that Phil was with me. I'll
>contact Brad directly, as I'll want to speak with him regardless. Thanks.
> Gigi
>
>-----Original Message----> From: Barbara van Schewick [mailto:schewick@stanford.edu]
>Sent: Tuesday, April 22, 2014 11:06 AM
>To: Philip Verveer; Gigi Sohn; Jonathan Sallet
>Subject: Meeting with influential VC Brad Burnham this Thursday?
>
>Dear Gigi, dear Phil, dear Jon,
>
>When I was in DC, a number of people mentioned that the Chairman's
>office would like to hear from entrepreneurs and investors directly.
>I'm writing to recommend that someone in the Chairman's office meet
>with Brad Burnham, an influential venture capitalist who is in DC this
>Thursday (4/24). Brad Burnham is co-founder of and partner at venture
>capital fund Union Square Ventures. He and Fred Wilson, his co-founder
>and partner at USV, were early investors in Twitter, Tumblr,
> Kickstarter, Zynga, Foursquare, Boxee and other Internet household names.
>
>Brad and Fred are heroes in the entrepreneurship community, and their
>word carries enormous weight. The press regularly calls them
>"legendary" or "rock star" investors (see, e.g.,
> http://www.businessinsider.com/fred-wilson-interview-2014-4 and
> http://www. nyd ailynews.com/new-york/rocksta r-investor-m ajar-do nation-brooklyn-chess-team-a rticle-1.15353 36).
>Brad and Fred have been very vocal supporters of network neutrality.
>You can read some of their writing on the topic here:
> https://www. usv .com/posts/internet-access-should-be-a pplication-agnost
> ic and http://avc.com/2014/01/vc-pitches-in-a-year-or-two/.
>
>Brad and his partners are very concerned about the FCC's current plans
>regarding network neutrality. I think you would find his perspective
>very useful. I'm very sorry for the short notice. I only heard that
> Brad is going to be in DC last night.
>
>If you or someone else in the Chairman's office are interested in
>meeting with Brad this Thursday, I would be happy to connect you with him.
2
From:
Sent:
To:
Subject:

Robert Cannon
RE: Try to move up May 12 mtg.?
Hi, Bob- Thanks for the suggestion on possibly meeting with the individual commissioners. It's a good point to raise with
my colleagues. I don't follow Communications Daily, but I'm betting my policy consultant for this space does. If I can't
pull down the NPRM article myself, I'll ask him to send it my way as a precursor to discussing meetings with the
commissioners themselves.- Jarret
Jarret S. Cummings
Director of Policy and External Relations
EDUCAUSE

Sent: Tuesday, April 29, 2014 9:21AM
To: Jarret Cummings
Subject: RE: Try to move up May 12 mtg.?
By your analogy, we are in the process of building the train. Input will guide how the train is built. The train does not
leave the station until the Commission votes on the order (not the NPRM).
Do you get Communications Daily? There was an article about the NPRM in this mornings edition talking about how the
you have set up a meeting with the Open Internet Working
Commissioners might vote. Which is an important
Group. You may also consider meeting with individual Commissioners. To do so you should reach out directly to their
offices. If you want POCs I can provide them.
B
To: Robert Cannon
Cc: Latoya Toles
Sure, no problem, and I wasn't intending to cast you as trying to guide us to a particular conclusion, so my apologies if
that's how it came across. I was really thinking in terms oftrying to puzzle through what might make the most sense
given the possible options, not in terms of you or LaToya making any specific recommendations.
Thanks for your patience and for looking into the quiet period issue. As you probably gathered, my sense is that we're
best served by not trying to move the meeting, but I needed to double-check. As you've probably experienced more
than I have, nothing throws folks into a tizzy like the announcement that the train's starting and they might miss it, so I
have to do my due diligence to calm the waters. :)
1
Jarret S. Cummings
EDUCAUSE
To: Jarret Cummings
Cc: Latoya Toles
Just a quick response -I need to make clear I am not giving recommendations. I am trying to provide you with
information so that you can make your own decisions.
The NPRM will be a proposal. NPRMs are always followed by a rich period of dialog with the public which informs the
outcome. Based on public opinion, the FCC will move towards a decision on final rules, but of course this will take
months.
I am asking our experts about the "quiet period." I think I know the answer, but I don't want to provide amateur
information so hopefully I will have a real answer soon.
B
To: Robert Cannon
Cc: Latoya Toles
No worries; if the recommendation is that we should stand pat, I'm happy to take that back to our partner organizations.
One of our number raised the question of whether some sort of "quiet period" in advance of the May 15th Commission
meeting at which the NPRM would be discussed might make our May 12th meeting untenable for FCC staff. Since I don't
know about that, I thought I should ask in case it is indeed a valid concern.
The other major question concerns whether a May 12th meeting is too late to have any practical impact on the NPRM
given the May 15th Commission meeting at which it will be discussed. But I read your email as indicating that informing
the overall thinking/dialogue heading into the rule-making process probably matters more than trying to inform the
specifics of the NPRM, especially iftrying to move the meeting to achieve the latter means that we really miss the
opportunity to talk with the folks vital to the former.
So, if we don't have to worry about requirements related to a "quiet period" ahead ofthe May 15th NPRM release
knocking out our May 12th meeting, it sounds like the recommendation would be to stick with May 12th as the best
opportunity to achieve the necessary dialogue, irrespective ofthe particulars ofthe NPRM. Just let me know if I have
that right, and ifthe "quiet period" point isn't relevant, when you get the chance. Thanks!
Jarret S. Cummings
2

EDUCAUSE
To: Jarret Cummings
Cc: Latoya Toles
I am trying to get some information for you.
Latoya Toles is coordinating the scheduling of the meeting and I assume the time was set in order to create availability
for key decision makers. If you move the meeting, you risk not being able to meet with decision makers. But this is
something you need to work out with Latoya.
Currently the FCC is working on a notice of proposed rulemaking in response to the D.C. Circuit court's remand. This is a
proposal. It will be put out for public comment, and then the FCC will decide what the final rules should be.
Robert Cannon
Sent: Friday, April 25, 2014 6:00 PM
To: Robert Cannon
Cc: Latoya Toles
Subject: Try to move up May 12 mtg.?
Hi, Bob- Given recent developments with the Open Internet NPRM, I thought I should touch base and see if we should
try to reschedule our May 12th meeting with the Open Internet working group for an earlier date.
I'm guessing the best we'd be able to do if we reschedule would be to get some reasonable subset ofthe group
together. However, with the NPRM possibly set for approval on May 15, we're concerned that the May 12 meeting
might be too late to inform the process, and that it might not even be doable for the FCC reps. given any pre-release
blackout period that may be involved.
Please let me know what you think when you get the chance. And if rescheduling for an earlier date is our best bet, just
let me know what options I should shop with my colleagues. Thanks!- Jarret
Jarret S. Cummings
EDUCAUSE
From:
Sent:
To:
Subject:

Robert Cannon
RE: Try to move up May 12 mtg.?
Got it; I assumed it would be fairly straightforward, but thought I should ask. I figured it would save time if I gave the
relevant folks the right frame of reference, knowing that we'd need to have something ready to submit immediately
after the meeting given how late in the day we're scheduled. Have a great evening!- Jarret
Jarret S. Cummings
EDUCAUSE

To: Jarret Cummings
Subject: Re: Try to move up May 12 mtg.?
You simply have to file an "ex parte" in the docket. It is very simple and I can send more info later. It is: who you are;
what fcc staff are at the meeting; and a summary of your message.
-----Origin aI Message ----From: Jarret Cummings [mailto:jcummings@educause.edu]

Sent: Tuesday, April 29, 2014 04:54PM Eastern Standard Time
To: Robert Cannon
Cc: Latoya Toles
Hi, Bob- You'll have to forgive me; I'm new to working with the FCC, although others in our org. and our partner orgs.
aren't. What is a sunshine period notice and how would we file it?- Jarret
Jarret S. Cummings
EDUCAUSE

Sent: Tuesday, April 29, 2014 11:15 AM
To: Jarret Cummings
Cc: Latoya Toles
I have consulted with FCC OGC which advises the following
"The meeting sounds OK. Because the meeting is during the sunshine period, you should advise Educause to file a
notice by the end ofthe same business day."
B

To: Robert Cannon
Cc: Latoya Toles
Sure, no problem, and I wasn't intending to cast you as trying to guide us to a particular conclusion, so my apologies if
that's how it came across. I was really thinking in terms of trying to puzzle through what might make the most sense
given the possible options, not in terms of you or LaToya making any specific recommendations.
Thanks for your patience and for looking into the quiet period issue. As you probably gathered, my sense is that we're
best served by not trying to move the meeting, but I needed to double-check. As you've probably experienced more
than I have, nothing throws folks into a tizzy like the announcement that the train's starting and they might miss it, so I
have to do my due diligence to calm the waters.:)
Jarret S. Cummings
EDUCAUSE
To: Jarret Cummings
Cc: Latoya Toles
Just a quick response -I need to make clear I am not giving recommendations. I am trying to provide you with
information so that you can make your own decisions.
The NPRM will be a proposal. NPRMs are always followed by a rich period of dialog with the public which informs the
outcome. Based on public opinion, the FCC will move towards a decision on final rules, but of course this will take
months.
I am asking our experts about the "quiet period." I think I know the answer, but I don't want to provide amateur
information so hopefully I will have a real answer soon.
2

To: Robert Cannon
Cc: Latoya Toles
No worries; if the recommendation is that we should stand pat, I'm happy to take that back to our partner organizations.
One of our number raised the question of whether some sort of "quiet period" in advance of the May 15th Commission
meeting at which the NPRM would be discussed might make our May 12th meeting untenable for FCC staff. Since I don't
know about that, I thought I should ask in case it is indeed a valid concern.
The other major question concerns whether a May 12th meeting is too late to have any practical impact on the NPRM
given the May 15th Commission meeting at which it will be discussed. But I read your email as indicating that informing
the overall thinking/dialogue heading into the rule-making process probably matters more than trying to inform the
specifics of the NPRM, especially if trying to move the meeting to achieve the latter means that we really miss the
opportunity to talk with the folks vital to the former.
So, if we don't have to worry about requirements related to a ."quiet period" ahead ofthe May 15th NPRM release
knocking out our May 12th meeting, it sounds like the recommendation would be to stick with May 12th as the best
opportunity to achieve the necessary dialogue, irrespective of the particulars of the NPRM. Just let me know if I have
that right, and if the "quiet period" point isn't relevant, when you get the chance. Thanks!
Jarret S. Cummings
EDUCAUSE
To: Jarret Cummings
Cc: Latoya Toles
I am trying to get some information for you.
Latoya Toles is coordinating the scheduling ofthe meeting and I assume the time was set in order to create availability
for key decision makers. If you move the meeting, you risk not being able to meet with decision makers. But this is
something you need to work out with Latoya.
Currently the FCC is working on a notice of proposed rulemaking in response to the D.C. Circuit court's remand. This is a
proposal. It will be put out for public comment, and then the FCC will decide what the final rules should be.
Robert Cannon
3
Sent: Friday, April 25, 2014 6:00 PM

To: Robert Cannon
Cc: Latoya Toles
Subject: Try to move up May 12 mtg.?
Hi, Bob- Given recent developments with the Open Internet NPRM, I thought I should touch base and see if we should
try to reschedule our May 12th meeting with the Open Internet working group for an earlier date.
I'm guessing the best we'd be able to do if we reschedule would be to get some reasonable subset of the group
together. However, with the NPRM possibly set for approval on May 15, we're concerned that the May 12 meeting
might be too late to inform the process, and that it might not even be doable for the FCC reps. given any pre-release
blackout period that may be involved.
Please let me know what you think when you get the chance. And if rescheduling for an earlier date is our best bet, just
let me know what options I should shop with my colleagues. Thanks! - Jarret
Jarret S. Cummings
EDUCAUSE
Jonathan Levy
From:
Sent:
To:
Subject:
Attachments:
Jonathan Levy
Monday, January 20, 2014 2:59 PM
ian.martin@cimb.com
More open internet stuff
114 14 Alert Net Neutrality - Verizon Win at Court Likely to Sustain th .... pdf; 114 14
Erratum Court Upholds FCC Authority But Guts Open Internet Rules .... pdf; 114 14 Net
neutrality ruling VZ other ISPs win consumers could lose GMS .... pdf; 114 14
NetCompetition Statement on Verizon v FCC Cleland.pdf; 114 14 Industry Tidbit VZ vs
FCC RJames.pdf
Jonathan Levy
(202) 418-2048
Twelve pages withheld pursuant to FOIA Exemption 4
Net neutrality ruling: Verizon and other ISPs

win, consumers could lose
http:l/wn,vw.siliconbeat.com/2014/01/14/net-neutralitv-ruling-verizon-and-other-isps-winconsumers-could-lose/ Levi Sumagaysay, Jan. 14,2014
A court has dealt a blow to net neutrality, paving the way for broadband providers to charge
content providers for delivering traffic to their users.
For example, the ruling could prompt Intemet service providers to require Netflix to pay to
stTeam TV shows and movies to its customers. Or ISPs might want to slow down or even block
traffic to cettain sites in favor of other sites it owns or have pru.tnerships with. The sites that may
have to take on new expenses could then pass along those costs to their customers.
The three-member U.S. Court of Appeals in Washington today handed Verizon Communications
a victory in its lawsuit against the FCC at1d its open Intemet rules. The rules, which called for
Intemet providers to treat traffic equally, were adopted by the Federal Communications
Commission in 2010 and went into effect in 2011. As we wrote, the rules the FCC wrote made
nobody happy. Opponents including Verizon saw the rules as atl overreach; proponents objected
to, among other things, the different standards the FCC applied to fixed broadbat1d and wireless
providers.
The rules were adopted under former FCC Chainnan Julius Genachowski atld were championed
by the Obama administration. What will new FCC Chairman Tom Wheeler do?
"We will consider all available options, including those for appeal, to ensure that these netv.rorks
on which the Internet depends continue to provide a free and open platform for innovation and
expression, and operate in the interest of all Americans,''
said in a statement today.
As we wrote last week in another post about net neutrality, Wheeler said he'd keep an eye on
AT&r s new Sponsored Data program, '..Vhich charges companies to deliver content that won't
count against customers' mobile data plans.
Net neutTality supporters say allowing Internet providers to prioritize online traffic could dampen
itmovation and hinder eff01ts by small or stru.tup companies. Larger companies such as Google
also have advocated for net neutrality. (Google has reportedly been paying extra for smoother,
faster access to its services.) Google would not comment about todays ruling, but it refet1'ed us
to the Internet Association's statement- which seems to send a mixed message: "The Internet
Association supp01ts enforceable rules that ensure an open Internet, fi:ee from government
control or discriminatory, anticompetitive actions by gatekeepers.''
The appeals court is the same one that sided with Comcast in its net neutrality fight in 2010,
saying the FCC effectively had no authority to regulate broadband. The FCC had gone after
Corneas! for throttling BitTolTent file-shating traffic in 2007.
Although the court said this time around that the FCC can issue general rules related to Internet
traffic, it said the FCC did not explain its reasons for its rules '"'ell enough. The FCC "makes no
distinction at all benveen the anti-discrimination and anti-bloclcing rules, seeking to justify both
types of rules \Vith explanations that, as we have explained, are patently insufficient,'' the court
said in its ruling.
Wnat could possibly be next, besides an appeal to the Supreme Comt: The FCC could attempt to
rewrite the open Internet rules. Or Congress could get involved, and address the open Intemet
rules as well as the FCC's authority to enforce them.
NetCompetition Statement on Verizon v. FCC Court Decision

January 14, 2014
Contact: Scott Cleland 703-217-2407
Court Upholds FCC's "General Authority to Regulate" Broadband in Verizon v. FCC, But
Denies FCC Authority to Impose Common-Carrier-like Regulation of Broadband. This winwin, Could Settle into a de Facto Net Neutrality Peace, if Parties Don't Appeal
WASHINGTON D.C. -The following quotes addressing the D.C. Circuit Court of Appeals, Verizon v.
FCC decision may be attributed to Scott Cleland, Chairman of NetCompetition:
"This Court delivered an unusual win-win outcome in Verizon v. FCC that enabled each party to win on
their respective and different must-win issues: the FCC had its core "general authority to regulate"
broadband affirmed and Verizon avoided common carrier regulation of broadband."
"Specifically, the Appeals Court handed the FCC a big win in ruling that the FCC the does have
the "general authority to regulate," broadband and "promulgate rules governing broadband
providers' treatment of Internet traffic," in order to "preserve and facilitate the "virtuous
circle" of innovation that has driven the explosive growth of the Internet."
"Specifically, the Court also handed Verizon and the broadband industry a big win on its top
concern in ruling that the FCC does not have the authority to impose common-carrier-like
regulation on broadband providers."
"If the parties do not appeal, and the FCC also works on new broadband information service trafficrules-of-the-road that comport with this decision, this effectively could settle into a de facto net
neutrality peace given that the FCC's "general authority to regulate" broadband would be unchallenged
and the broadband industry's biggest fear, common carrier regulation of broadband, would be off the
table."
"Finally, this decision also underscores the need to modernize seriously obsolescing 1934
communications law for the 21st Century."
Five pages withheld pursuant to FOIA Exemption 4
Cc:
Subject:
Attachments:
Sara Morris
ay, May 14, 2014 2:09 PM
Milkman; Jonathan Saflet; Philip Verveer; Gigi Sohn; Daniel Alvarez; Shannon
Gilson; Julie Veach; Stephanie Weiner; Matthew DelNero
David Toomey
FW: FYI, Ranking Member Waxman on FCC Open Internet NPRM
Wheeler.TitleiiBackupOption.2014.5.14.pdf
Follow
Flag:
Flag Status:
Follow up
Flagged
From:
Sent:
To:
From: Chang, Shawn [mailto:Shawn.Chanq@mail.house.gov]

To: Chang, Shawn
Subject: FYI, Ranking Member Waxman on FCC Open Internet NPRM
Let me know if you have any questions.
Shawn H. Chang
Chief Counsel
U.S. House of Representatives
H2-564 Ford House Office Building
0: 202-226-3400 F: 202.225-1690
CHAIRMAN
RANKING MEMBER
Qtongress of tbe mlniteb

j!}ouse of li\epresentntibe.s'
COMMITTEE ON ENERGY AND COMMERCE.
2125 RAYBURN House Oi=FICE BuiLDING
Majority 1202) 225-2927
Minority 1202) 225-3641
May 14,2014
Chairman
445 12111 Street, SW
strong, enforceable rules of the road to protect the fi:ee and open Internet. I appreciate your
May 15, 2014.
under a "paid prioritization" arrangement between broadband providers and content companies.
commend you for taking tlus step.
difficulty in establislring these rules has not been their substance. In 2010, I led legislative
negotiations that produced the Open Internet Act of201 0, which would have prohibited blocking
of websites and unjust or unreas<;mable discrimination by wireline broadband Internet service

May 14,2014
Page2
legislation \Vere codified in the FCC?s 2010 open Internet rules. They remain a sound foundation
for the rules you are considering.
the FCC has the authority to adopt these rules if the FCC reclassified broadband Internet
the D.C. Circuit decision in Verizon v. FCC recognized that the open Internet rules would have
been upheld if the FCC had not "chosen to classify broadband providers in a manner that
exempts them from treatment as common carriers."'
open Internet rules without taking the step of classifying broadband Internet service as a
because it would carry with it the authority of the FCC to regulate rates in a future proceeding.
to forbear from applying most of the requirements of Title II to broadband service, including
forbearing from rate regulation.
The D.C. Circuit's decision in Verizon undercuts the providers' position because the
court held that the FCC has authority to regulate broadband under section 706 of the
Telecommunications Act v;rithout Title II reclassification. Section 706 expressly provides that
the FCC can utilize "price cap regulation" and other measures to remove barriers to
infrashucture investment and promote broadband deployment. 2 This means that broadband
Intemet service providers are subject to potential rate regulation whether they are regulated
under Title II or section 706. Avoiding the remote possibility of rate regulation is no longer a
persuasive rationale for avoiding-the invocation of the Commission's Title n authority.
I believe the time has come for the FCC to stop putting vitally important open lntemet
section 706 as the preferred basis of authority, as this may generate less opposition from some
quarters t11a11 proceeding under Title II. But the FCC should also use its undisputed Title II
reinstatement of the no-blocking and nondiscrimination protections under Title II of the
Communications Act in the event that the courts once again invalidate the strong open Intemet
rules under section 706. These could include using Title IT as "backstop authority," issuing one
order under section 706 and a contingent order under Title II, or reclassifying broadband Intemet
requirements while the section 706 rules remain in effect. This approach will allow the FCC to
Vehzon v. FCC. 740 F.3d 623 (D.C. Cir. 2014).

47 U.S.C. l302(a).
2 See

May 14,2014
Page3
strategy may actually ward off court. challenges .... Attempting to invalidate the rules with
carriers unable to blame anyone but themselves." 3
gatekeepers online. I urge you and your colleagues to move fmward with your Notice of
item.
Sjncerely,
Ranking Member
cc:

Commissioner
Commissioner
3
the New Yorker, The Solution to the F. C. C.'s

Problems (May 9, 2014)
(online at www .newyorker.com/online/blogs/elements/20 14/05/tom-wheeler-fcc-net-neutralityproblems.html).

May 14,2014
Page4

Commissioner
Commissioner
Three pages withheld pursuant to FOIA Exemption 5
From: Chang, Shawn [mailto:Shawn.Chanq@mai!.house.gov]

To: Sara Morris; Gigi Sohn
Subject: FW: Severability clauses & fallback provisions
Importance: High
Please hold this very close. But we think there is a good case for the FCC here to create a framework whereby the
Commission would prohibit paid-prioritization under the Section 706 "commercially reasonable "standard, but fallback
to a Title II approach automatically ifTitle I rules are struck down. As I described to Sara, Henry can send a somewhat
personal letter to Chairman Wheeler prior to the hearing on the 201h restating his support of the Chairman's proposal,
but ask the fallback provision to be put in place so there will continue to be protections in place. We can use the recess
next week put together the letter.
Some benefits of the approach I can think of:
Ill Respond to VZ court's invitation on both Section 706 and Title II approaches
Iii Demonstrate commitment to net neutrality by putting Title II squarely on the table
II Avoid a protracted fight with the carriers by clearly prioritizing (pun intended) Section 706 over reclassification, in
fact incentivizing the carriers to work with the Commission on a Section 706 path forward to avoid
reclassification.
I know I asked you to hold close, but please feel free to share with Jon and others in the Chairman's office who may be
curious about this idea.
Shawn
Hi Shawn and Phil,

I've attached the article on administrative severability clauses written by Professor Don Elliott (former EPA General
Counsel and now Adjunct Professor of Law at Yale Law School and Senior of Counsel at Covington & Burling in
DC). There are several references to the FCC in this article, including a discussion on p. 14 about the judicial standard for
rule severability applied in MD/DC/DE Broadcasters Ass'n v. F.C.C., 253 F. 3d 732 (D.C. Cir. 2001). On p. 4, the article also
notes that the FCC has included severability clauses in 3 of its rules since the year 2000. If it would be helpful, I can
reach out to the authors to find out which specific FCC rules these are (the authors previously sent me the EPA rules
they found with severability clauses).
The rule I mentioned on the phone which adopted the same standards under separate legal authorities is EPA's National
Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting, 77 Fed. Reg. 556 (Jan. 5, 2012). I've.
also attached copy of this rule. In relevant part, EPA's discussion of the rule says, "We note that although we have
adopted the same standards under both CAA sections 112(f)(2) and 112(d)(6), these standards rest on independent
statutory authorities and independent rationales. Consequently, these standards remain independent and legally
severable." 77 Fed. Reg. 556, 564.
Finally, I've included my notes below from conversations I had with law professors on the idea of including a "fallback
provision" in a rule, which would go into effect if the rule's principle provision were struck down. I previously sent these
notes to Phil. My conversation with Professor Elliott was pretty specific to EPA and the Clean Air Act, but the
observations from Professors Vladeck and Lubbers are more generally applicable.
Let me know if I can be offurther help.
Best,
Bruce
Notes from law professor conversations:

I spoke to Professors David VIa deck from Georgetown, Don Elliott from Yale, and Jeffrey Lubbers from American about
. your administrative law question- i.e., whether EPA could include a fallback provision in a rule that goes into effect if a
court strikes down EPA's preferred provision. None ofthem knew of any examples where agencies have done this
before. However, they all thought EPA could do this, as long as the language of the fallback itself withstood judicial
scrutiny. I've summarized these conversations below.
David Vladeck, Professor of Law, Georgetown University Law Center
Professor VIa deck isn't aware of any instances where agencies have included fallback provisions in their rules, but said
there's nothing in the APA that precludes an agency from doing so. He said that even if no agency has included a
fallback provision before, that doesn't mean that one couldn't do so now, and he said it might be reasonable for an
agency to do so if it were operating in a novel area and could reasonably foresee a legal challenge.
Professor VIa deck's one concern, which I believe he also shared with you, was that if multiple district or appellate courts
were interpreting the rule, there could be inconsistent interpretations across the country, which might lead to chaose.g., what happens if jurisdiction A upholds the principle provision, but jurisdiction B strikes it down? Would EPA want
the fallback provision to go into effect in B but not A or in both jurisdictions? And if EPA appealed the decision in B,
what would happen in the interim? However, as explained below, Don Elliott said this shouldn't be a problem under the
CAA as challenges would likely go exclusively to the D.C. Circuit.
Jeffrey Lubbers, Professor of Practice in Administrative Law, American University Washington College of Law
I reached out to Jeffrey Lubbers at the suggestion of Professor Vladeck. Professor Lubbers was formerly the research
director and is now special counsel of the Administrative Conference of the US. He also wasn't aware of any examples
of an agency including a fallback provision in its rules, though he noted that a fallback provision is similar in concept to a
severability clause, which agencies have sometimes included. He thought an agency might shy away from including a
fallback provision as it would highlight an area of legal risk in its rule, but he didn't see any legal impediment to a fallback
provision in concept. He did say that a court might be concerned about a fallback provision ifthere was little public
comment on the provision (relative to comments on the principle provision) during the agency's rulemaking as this
might look like the public didn't really understand the provision or was misled by the agency about its proposal. But, as
long as the agency was careful during its rulemaking, he thought it should be able to avoid this problem.
Don Elliott, Adjunct Professor of Law, Yale Law School. and Senior of Counsel, Covington & Burling (DC office)
I also spoke to Professor Elliott along with one of his former students at Yale Law School, Charles Tyler (currently an
associate at Jones Day in San Francisco) with whom he recently co-wrote a paper entitled "Administrative Severability
Clauses." I've attached the article and summarized it further below. Professor Elliott did most ofthe talking. As with
the others, he was not aware of examples of agencies using fallback provisions, though he thought it was an interesting
idea, and described it as a "more proactive" severability clause.
While Professor Elliott hadn't thought about fallback provisions before, he has thought (and had conversations with
David Don niger at NRDC) about using severability clauses under EPA's 111d or 111b rules as a way to try to create a
trading system. His idea is that EPA could set a rate-based standard, and create a severable trading program alongside
it. He said EPA's authority to set rate-based standards is well established, but creating a trading program involves more
5
legal uncertainty. By including a severability clause, he thinks EPA could try to do trading while still ensuring that the
basic rate-based standard persists even if a court later strikes down t.he trading program.
Professor Elliott said he favors a rate-based standard over a mass-based one for this approach because under a massbased standard if the trading program gets struck down, states would then need to set individual limits for sources,
which would probably delay the program a couple of years. In contrast, under a rate-based standard individual sources
would already be subject to individual limits so the program could still be implemented right away regardless of
trading. He also argued that this approach would limit the likelihood of litigation because EPA's rate-based standardsetting authority is clear and industry would be unlikely to challenge the trading program piece since that part of the
rule would reduce the cost of compliance.
Professor Elliott said he couldn't think of any places where EPA has used a fallback provision, though there is at least one
case where EPA used a severability clause (Charles will try to find the specific rule over the weekend- the Elliott and
Tyler article has a footnote that says EPA is one of several agencies that has used a severability clause since the year
2000, but doesn't specify the rule). He said there is an implicit "fallback" when EPA changes a rule that if the rule is
struck down, the earlier rule remains/comes back. He noted that when the DC Circuit struck down CSAPR, it reinstated
CAIR even though the court also found that rule to be flawed. He also drew parallels to cases where EPA has issued an
interim direct final rule or guidance before completing a rule through notice and comment. In general, he likes the idea
of a fallback or a severability clause as he thinks it's better for an agency to spell out what the next steps should be if a
rule is invalidated than for a court to decide this.
Professor Elliott said one legal issue with fallback provisions might be the question of when a party would be required to
challenge the fallback provision as opposed to the principle provision. For example, under the CAA, would a party need
to challenge the fallback within 60 days of the rule adoption or within 60 days of the fallback provision entering into
effect? He thought the DC Circuit would probably find the latter and that a challenge to the fallback provision wouldn't
be ripe ifthe principle provision were in effect.
On the issue that Professor VIa deck raised about inconsistent court decisions, Professor Elliott said this likely wouldn't
be a problem under the Clean Air Act. CAA section 307 provides that the DC Circuit has original jurisdiction over
challenges to standards of performance and requirements under section 111. The DC Circuit also has original
jurisdiction over challenges to EPA's approval or promulgation of an implementation plan under section 110 or section
111 as long as that plan has "nationwide scope or effect." He said this might not be the case if EPA were promulgating
one plan specifically for a single state, but it likely would be true for a federal implementation plan applicable to multiple
states. A recent example of "nationwide scope or effect" was in the PSD case argued before the Supreme Court this
year- some of the original petitions were filed in the sth and lOth Circuits, but they were transferred to the DC Circuit
because those circuits determined that EPA's SIP call was a nationally applicable regulation.
Professor Elliott said he's happy to help more and to let him know if we ever need a witness (I think he meant generally
rather than specifically on these issues).
Summary of Elliott and Tyler paper
Elliott and Tyler's paper on "Administrative Severability Clauses" argues that agencies should use severability clauses
more frequently because doing so would promote greater regulatory predictability, stability (e.g., part of a rule
remaining in place vs. the entire rule getting struck down), and public participation (since unlike judicial decisions, rules
go through notice and comment). Their paper looked at all federal rules promulgated since 2000 and found that only a
small percentage of these rules contained severability clauses.
However, the authors also found that courts generally don't defer to administrative severability clauses. Rather, when
courts find that part of a rule is invalid, they tend to ignore the severability clause entirely and instead perform a twopart test of (1) whether the remaining valid portion of the rule is workable (can it function in the absence of the invalid
provision or application?) and (2) whether an agency would still have adopted the regulation without the invalid clause
(the existence of the severability clause is apparently not treated as evidence of agency intent). This test mirrors the
6
one that courts use for statutory severability clauses. Elliott and Tyler argue that the legislative test originated because
courts don't trust that severability clauses were actually part of the legislative bargain because they think these clauses
are just boilerplate or that legislators didn't fully consider the implications of severability. The authors argue that this
rationale might make sense for legislation, but doesn't make sense for rules because agencies are more likely to
carefully consider all aspects of their rules, including severability clauses, and, unlike Congress, are more focused and
have more expertise in specific areas. Elliott and Tyler argue that courts should give more deference to administrative
severability clauses and that doing so would be consistent with other judicial standards of rule interpretation.
Verizon. v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

See 47 U.S.C. 1302(a).
3
[ ] The New Yorker, The Solution to the F. C. C.'s Net-Neutrality Problems (May 9, 2014) (online at
W'J.rw.newvorker.com/online/blogs/elements/2014/05/tom-wheeler-fcc-net-neutialitv-problems.html).
[IJ
[ll
From:
Sent:
To:
Cc:
Subject:
Attachments:
Sara Morris
Tuesday, May 13, 2014 3:37 PM
Philip VeNeer
Stephanie Weiner; Ruth Milkman
Fw: Severability clauses & fallback provisions
Elliott & Tyler (2013) - Administrative Severability Clauses.pdf; EPA - 77 FR 555
(2012).pdf
Importance:
High
Sara W. Morris
Director
Office.of Legislative Affairs
(202) 418-0095 (direct)
From: Sara Morris

To: Ruth Milkman; Jonathan Sallet; Philip Verveer; Stephanie Weiner; Daniel Alvarez
Cc: Gigi Sohn
Sara

To: Sara Morris; Gigi Sohn

Importance: High
Please hold this very close. But we think there is a good case for the FCC here to create !3 framework whereby the
Commission would prohibit paid-prioritization under the Section 706 "commercially reasonable "standard, but fallback
to a Title II approach automatically ifTitle I rules are struck down. As I described to Sara, Henry can send a somewhat
personal letter to Chairman Wheeler prior to the hearing on the 20th restating his support of the Chairman's proposal,
1
but ask the fallback provision to be put in place so there will continue to be protections in place. We can use the recess
next week put together the letter.
Some benefits of the approach I can think of:

II Respond to VZ court's invitation on both Section 706 and Title II approaches
Ill Demonstrate commitment to net neutrality by putting Title II squarely on the table
11!1 Avoid a protracted fight with the carriers by clearly prioritizing (pun intended) Section 706 over reclassification, in
fact incentivizing the carriers to work with the Commission on a Section 706 path forward to avoid
reclassification.
I know I asked you to hold close, but please feel free to share with Jon and others in the Chairman's office who may be
curious about this idea.
Shawn
Hi Shawn and Phil,

I've attached the article on administrative severability clauses written by Professor Don Elliott (former EPA General
Counsel and now Adjunct Professor of Law at Yale Law School and Senior of Counsel at Covington & Burling in
DC). There are several references to the FCC in this article, including a discussion on p. 14 about the judicial standard for
. rule severability applied in MD/DC/DE Broadcasters Ass'n v. F. C. C., 253 F. 3d 732 (D.C. Cir. 2001). On p. 4, the article also
notes that the FCC has included severability clauses in 3 of its rules since the year 2000. If it would be helpful, I can
reach out to the authors to find out which specific FCC rules these are (the authors previously sent me the EPA rules
they found with severability clauses).
The rule I mentioned on the phone which adopted the same standards under separate legal authorities is EPA's National
Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting, 77 Fed. Reg. 556 (Jan. 5, 2012). I've
also attached copy of this rule. In relevant part, EPA's discussion ofthe rule says, "We note that although we have.
adopted the same standards under both CAA sections 112(f)(2) and 112(d)(6), these standards rest on independent
statutory authorities and independent rationales. Consequently, these standards remain independent and legally
severable." 77 Fed. Reg. 556, 564.
Finally, I've included my notes below from conversations I had with law professors on the idea of including a "fallback
provision" in a rule, which would go into effect if the rule's principle provision were struck down. I previously sent these
notes to Phil. My conversation with Professor Elliott was pretty specific to EPA and the Clean Air Act, but the
observations from Professors Vladeck and Lubbers are more generally applicable.
Let me know if I can be of further help.
Best,
Bruce
Notes from law professor conversations:

1spoke to Professors David VIa deck from Georgetown, Don Elliott from Yale, and Jeffrey Lubbers from American about
your administrative law question- i.e., whether EPA could include a fallback provision in a rule that goes into. effect if a
court strikes down EPA's preferred provision. None of them knew of any examples where agencies have done this
before. However, they all thought EPA could do this, as long as the language of the fallback itself withstood judicial
scrutiny. I've summarized these conversations below.
2
David Vladeck, Professor of Law, Georgetown University Law Center

Professor Vladeck isn't aware of any instances where agencies have included fallback provisions in their rules, but said
there's nothing in the APA that precludes an agency from doing so. He said that even if no agency has included a
fallback provision before, that doesn't mean that one couldn't do so now, and he said it might be reasonable for an
agency to do so if it were operating in a novel area and could reasonably foresee a legal. challenge.
Professor VIa deck's one concern, which I believe he also shared with you, was that if multiple district or appellate courts
were interpreting the rule, there could be inconsistent interpretations across the country, which might lead to chaose.g., what happens if jurisdiction A upholds the principle provision, but jurisdiction B strikes it down? Would EPA want
the fallback provision to go into effect in B but not A or in both jurisdictions? And if EPA appealed the decision in B,
what would happen in the interim? However, as explained below, Don Elliott said this shouldn't be a problem under the
CAA as challenges would likely go exclusively to the D.C. Circuit.
Jeffrey Lubbers, Professor of Practice in Administrative Law, American University Washington College of Law
I reached out to Jeffrey Lubbers at the suggestion of Professor Vladeck. Professor Lubbers was formerly the research
direc-tor and is now special counsel of the Administrative Conference of the US. He also wasn't aware of any examples
of an agency including a fallback provision in its rules, though he noted that a fallback provision is similar in concept to a
severability clause, which agencies have sometimes included. He thought an agency might shy away from including a
fallback provision as it would highlight an area of legal risk in its rule, but he didn't see any legal impediment to a fallback
provision in concept. He did say that a court might be concerned about a fallback provision if there was little public
comment on the provision (relative to comments on the principle provision) during the agency's rulemaking as this
might look like the public didn't really understand the provision or was misled by the agency about its proposal. But, as
long as the agency was careful during its rulemaking, he thought it should be able to avoid this problem.
Don Elliott, Adjunct Professor of Law, Yale Law School, and Senior of Counsel, Covington & Burling (DC office)
I also spoke to Professor Elliott along with one of his former students at Yale Law School, Charles Tyler (currently an
associate at Jones Day in San Francisco) with whom he recently co-wrote a paper entitled "Administrative Severability
Clauses." I've attached the article and summarized it further below. Professor Elliott did most of the talking. As with
the others, he was not aware of examples of agencies using fallback provisions, though he thought it was an interesting
idea, and described it as a "more proactive" severability clause.
While Professor Elliott hadn't thought about fallback provisions before, he has thought (and had conversations with
David Donniger at NRDC) about using severability clauses under EPA's 111d or lllb rules as a way to try to create a
trading system. His idea is that EPA could set a rate-based standard, and create a severable trading program alongside
it. He said EPA's authority to set rate-based standards is well established, but creating a trading program involves more
legal uncertainty. By including a severability clause, he thinks EPA could try to do tradin_g while still ensuring that the
basic rate-based standard persists even if a court later strikes down the trading program.
Professor Elliott said he favors a rate-based standard over a mass-based one for this approach because under a massbased standard if the trading program gets struck down, states would then need to set individual limits for sources,
which would probably delay the program a couple of years. In contrast, under a rate-based standard individual sources
would already be subject to individual limits so the program could still be implemented right away regardless of
trading. He also argued that this approach would limit the likelihood of litigation because EPA's rate-based standardsetting authority is clear and industry would be unlikely to challenge the trading program piece since that part of the
rule would reduce the cost of compliance.
Professor Elliott said he couldn't think of any places where EPA has used a fallback provision, though there is at least one
case where EPA used a severability clause (Charles will try to find the specific rule over the weekend- the Elliott and
Tyler article has a footnote that says EPA is one of several agencies that has used a severability clause since the year
2000, but doesn't specify the rule). He said there is an implicit "fallback" when EPA changes a rule that if the rule is
struck down, the earlier rule remains/comes back. He noted that when the DC Circuit struck down CSAPR, it reinstated
3
CAIR even though the court also found that rule to be flawed. He also drew parallels to.cases where EPA has issued an
interim direct final rule or guidance before completing a rule through notice and comment. In general, he likes the idea
of a fallback or a severability clause as he thinks it's better for an agency to spell out what the next steps should be if a
rule is invalidated than for a court to decide this.
Professor Elliott said one legal issue with fallback provisions might be the question of when a party would be required to
challenge the fallback provision as opposed to the principle provision. For example, under the CAA, would a party need
to challenge the fallback within 60 days of the rule adoptfon or within 60 days of the fallback provision entering into
effect? He thought the DC Circuit would probably find the latter and that a challenge to the fallback provision wouldn't
be ripe if the principle provision were in effect.
On the issue that Professor Vladeck raised about inconsistent court decisions, Professor Elliott said this likely wouldn't
be a problem under the Clean Air Act. CAA section 307 provides that the DC Circuit has original jurisdiction over
challenges to standards of performance and requirements under section 111. The DC Circuit also has original
jurisdiction over challenges to EPA's approval or promulgation of an implementation plan under section 110 or section
111 as long as that plan has "nationwide scope or effect." He said this might not be the. case if EPA were promulgating
one plan specifically for a single state, but it likely would be true for a federal implementation plan applicable to multiple
states. A recent example of "nationwide scope or effect" was in the PSD case argued before the Supreme Court this
year- some of the original petitions were filed in the 51h and 101h Circuits, but they were transferred to the DC Circuit
because those circuits determined that EPA's SIP call was a nationally applicable regulation.
Professor Elliott said he's happy to help more and to let him know if we ever need a witness (I think he meant generally
rather than specifically on these issues).
Summary of Elliott and Tyler paper
Elliott and Tyler's paper on" Administrative Severability Clauses" argues that agencies should use severability clauses
more frequently because doing so would promote greater regulatory predictability, stability (e.g., part of a rule
remaining in place vs. the entire rule getting struck down), and public participation (since unlike judicial decisions, rules
go through notice and comment). Their paper looked at all federal rules promulgated since 2000 and found that only a
small percentage of these rules contained severability clauses.
However, the authors also found that courts generally don't defer to administrative severability clauses. Rather, when
courts find that part of a rule is invalid, they tend to ignore the severability clause entirely and instead perform a twopart test of (1) whether the remaining valid portion of the rule is workable (can it function in the absence of the invalid
provision or application?) and (2) whether an agency would still have adopted the regulation without the invalid clause
(the existence of the severability clause is apparently not treated as evidence of agency intent). This test mirrors the
one that courts use for statutory severability clauses. Elliott and Tyler argue that the legislative test originated because
courts don't trust that severability clauses were actually part of the legislative bargain because they think these clauses
are just boilerplate or that legislators didn't fully consider the implications of severability. The authors argue that this
rationale might make sense .for legislation, but doesn't make sense for rules because agencies are more likely to
carefully consider all aspects of their rules, including severability clauses, and, unlike Congress, are more focused and
have more expertise in specific areas. Elliott and Tyler argue that courts should give more deference to administrative
severability clauses and that doing so would be consistent with other judicial standards of rule interpretation.
[12/13/2013 DRAFT]
ADMINISTRATIVE SEVERABILITY CLAUSES
E. Donald Elliottt
Charles W. Tylertt
Article Contents
I. Agencies Should Be Encouraged To Include Severability Clauses In Rules
II. The Analogy Between Statutory and Administrative Severability Clauses Is Inapt 12
A. The Two-Prong Test for the Severability of Statutory and Regulatory Provisions 12
B. A Misguided Approach to Administrative Severability Clauses
15
Ill.
A.
B.
C.
1.
2.
IV.
Courts Should Be More Deferential To Administrative Severability Clauses

The Appropriate Level of Deference to Administrative Severability Clauses
Deference To Administrative Severability Clauses Is Good Policy
Current Law Requires Deference to Administrative Severability Clauses
Chenery: The "Informed Discretion" of Agencies
Auer: Severability Clauses As Interpretations of Agency Rules
Conclusion
25
26
30
33
33
34
37
t Professor (adj.) of Law, Yale Law School, Senior of Counsel, Covington & Burling LLP, and former
General Counsel at the United States Environmental Protection Agency.

tt Yale Law School, J.D. 2013; University of Oxford, B.Phil. 2009; University of Notre Dame, B.A.
2007. This Article benefited from discussions with Paul Verkuil, Nicholas Parrillo, Abbe. Gluck, and
Andrew Tutt. The authors also wish to thank Ben Moskowitz and Julie Krishnaswami for their careful and
thorough research. The opinions expressed in this Article are the authors' alone and do not necessarily
reflect the opinions of any of the organizations with which they are affiliated.
[12/13/13 DRAFT]
"Judicial review controls administrative action in the same way that hurricanes
control the rice crop in Louisiana: they appear unpredictably, wreak havoc, and then
depart."- Jerry Mashaw
This Article explores a topic that has been overlooked by legal scholars: severability
clauses in administrative regulations. Administrative severability clauses are an important
tool for agencies to minimize the "havoc" wreaked by judicial review. Agencies should
be encouraged to use them, and courts should give them more deference than they do
severability clauses in legislation.
Severability doctrine remains undertheorized. Until the last decade, only three full
articles had addressed the topic of the severability of statutory provisions.' And courts
had done scarcely any better. Thus, the Chief Judge of the Ninth Circuit John Clifford
Wallace once lamented that "[t]he test for severability has been stated often but rarely
explained." 2 But if the doctrine pertaining to the severability of statutes is an intellectual
morass, then administrative severability doctrine is nothing short of an abyss. For there
have been no Jaw review articles addressing the subject of severability in administrative
Jaw, and the courts have tended hollowly to echo the doctrine pertaining to the
severability of statutes. 3
To be sure, the intellectual tide seems to be shifting. Severability has recently figured
prominently in debates both in Congress 4 and the Supreme Court. 5 And scholars have
responded with full articles on the subject. 6 Yet despite the recent emergence of
1
See Mark L. Movsesian, Severability in Statutes and Contracts, 30 GA. L. REv. 41 (1995); John Copeland
Nagle, Severability, 72 N.C. L. REv. 203 (1993); Robert L. Stern, Separability and Separability Clauses in
the Supreme Court, 51 HARV.L. REv. 76 (1937).
2
Nagle, supra note_, at 204 (quoting Bd. of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir.
1993) (Wallace, C.J.)).
See, e.g., Alliance for Community Media v. F.C.C., 10 F.3d 812, 830 (D.C. Cir. 1993) ("The
[severability] analysis differs little in the context of invalidating provisions of regulations promulgated by
an agency.").
4
In a widely covered dispute, Congress debated the inclusion of either a severability clause or an
inseverability clause in the Bipartisan Campaign Reform Act of 2002. See Excerpts From Senate Debate on
Donations: Skirmishing and Predictions, N.Y. TIMES, Mar. 30, 2001, at Al6.
5
The Court has addressed the severability doctrine in several recent cases, including Ayotte v. Planned
Parenthood of Northern New England, 546 U.S. 320 (2006); Free Enterprise Fund v. Public Co.
Accounting Oversight Bd., 130 S. Ct. 3138 (20 10); and National Federation of Independent Businesses v.
Sebellius, 132 S. Ct. 2566 (2012).
6
See, e.g., Rachel J. Ezzell, Note, Statut01y Interdependence in Severability Analysis, Ill MICH. L. REv.
1481 (2013); Jenna L. Kamiat, Comment, PPACA and the Individual Mandate: A Healthy Approach to
Severability, 80 FORDHAM L. REv. 2237 (2012); Tobias A. Dorsey, Sense and Severability, 46 U. RICH. L.
REv. 877 (2012); Kenneth A. Klukowski, Severability Doctrine: How Much of a Statute Should Federal
Courts Invalidate?, 16 TEX. REv. L. & POL'Y 1 (2011); Tom Campbell, Severability of Statutes, 62
[12113/13 DRAFT]
commentary on the severability of statutes, no extant work has addressed severability in

administrative law. Indee<;l, we have found only one secondary source even
the difference between severability analysis in the statutory and administrative contexts.
This Article addresses the topic of severability clauses in administrative rules. We make
the following two proposals for the future of severability doctrine in administrative law.
First, we propose that agencies should be encouraged to include severability clauses
in their rules. In Part I, we argue that severability clauses make the regulatory
environment more predictable, stable, and participatory by giving stakeholders the
opportunity to comment and by explaining to regulatees how agency rules will affect
them.
Second, we propose that federal courts should defer to severability clauses in
administrative regulations. In Part II, we explain that federal courts tend to disregard
administrative severability clauses because they have analyzed them through the
distorting prism of severability clauses in legislation. In both instances, the doctrine holds
that severability clauses create a weak presumption in favor of severability. 8 But courts
should not treat administrative and statutory severability clauses the same. In Congress,
severability clauses are often thrown in to far-reaching statutes that are drafted in several
distinct iterations, by several different committees, whose legislative staff often lack the
time and expertise to consider fully the clauses' many potential ramifications. One could
think, in other words, that congressional staff are institutionally ill-equipped to really
mean it when they include a severability clause in a statute. By contrast, administrative
agencies are more unified organizations that operate in a much narrower regulatory space
and whose staffs have the time and expertise to fully consider the potential consequences
of a severability clause. The analogy between statutory and administrative severability
clauses, therefore, is misplaced.
In Part III, we make the affirmative case for taking administrative severability clauses
at face value. We argue that, as a matter of both policy and law, courts should defer to
administrative severability clauses, except when the remainder of a rule is tainted by
other legal defects. As a matter of policy, courts should defer to severability clauses
because doing so promotes political accountability, administrative expertise,
predictability in the law, and reduces agency ossification. As a matter of law, courts
should defer to administrative severability clauses because the severability of an
HASTINGS L.J. 1495 (2011); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. REv. 738 (2010); C.
Vered Jona, Note, Cleaning Up for Congress: WhyCourts Should Reject the Presumption of Severability in
the Face of Intentionally Unconstitutional Legislation, 76 GEO. WASH. L. REV. 698 (2008); Michael C.
Dorf, Fallback Law, 107 COLUM. L. REV. 303 (2007); Fred Kameny, Are lnseverabi!ity Clauses
Constitutional?, 68 ALB. L. REV. 997 (2005); Michael D. Shumsky, Severability, lnseverability, and the
Rule of Law, 41 HARV. J. ON LEGIS. 227 (2004).
7
See Ronald M. Levin, "Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative
Law, 53 DUKEL.J.291, 330 (2003).
See INS v. Chadha, 462 U.S. 919, 932 (1983); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987);
Champlin Refinery Co. v. Corp. Comm'n of Oklahoma, 286 U.S. 210, 235 (1932) (citing Utah Power &
Light Co. v. Pfost, 286 U.S. 165, 165 (1932)).
[12/13/13 DRAFT]
ADMINISTRATIVE SEVERABIL!11' CLAUSES
administrative rule falls within an agency's "informed discretion" 9 and because

severability clauses are valid interpretations of agency rules and thus deserve Auer
deference. 10
Together, these proposals would markedly enhance the legal significance of
administrative severability clauses and would bring the doctrine more in line with the
overarching goals of administrative law.
I. AGENCIES SHOULD BE ENCOURAGED TO INCLUDE SEVERABILITY

CLAUSES IN RULES
Only a small fraction of contemporary federal administrative agencies have used
severability clauses in their rules. 11 We have identified only nineteen agencies that have
included severability clauses in their rules since 2000, as compared to hundreds that have
not. 11 Moreover, even among these agencies, promulgating rules containing severability
clauses is still a rare practice. The agency that has generated the highest volume of
severability clauses since 2000 is the Federal Tr;:tde Commission. Since 2000, the Federal
Trade Commission has promulgated 142 rules, twelve of which (that is, 8.5%) have
contained a severability clause. Behind the FTC, the next most active user of severability
clauses is the Forest Service, which included severability clauses in five of its 75 final
rules (6.7%) since 2000. In third place was the FCC, which included severability clauses
in 3 of its 2,574 final rules (less than 1%) since 2000. All other agencies have included
severability clauses in their rules in less than three instances since 2000.
9
10
S.E.C. v. Chenery Corp., 332 U.S. 194 (1947).
See Auer v. Robbins, 519 U.S. 452 (1997); see also Bowles v. Seminole Rock Co., 325 U.S. 410 (1945).
11
Agencies do not always include severability clauses in the regulatory text, even when they mean to make
their intentions regarding severability clear. Some agencies will express their intention that a rule is
severable by including remarks in a rule's general statement of purpose. See, e.g., Applications for FDA
Approval to Market a New Drug: Patent Submission and Listing Requirements and Application of 30Month Stays on Approval of Abbreviated New Drug Applications Certifying That a Patent Claiming a
Drug Is Invalid or Will Not Be Infringed, 68 FR 36676-01 (2003). Although not found in the regulatory
text, in what follows we have tried to count these remarks, where possible, as severability clauses because
they have many of the same benefits as express severability clauses located in a rule's text-for example,
making the regulatory environment more predictable.
11
They include: Bureau of Consumer Financial Protection, Commodity Futures Trading Commission,
Coast Guard (Homeland Security), Employment and Training Administration (Labor), Occupational Safety
and Health Administration (Labor), Federal Communications Commission, Federal Railroad
Administration (Transportation), Forestry Service (Agriculture), Department of Housing and Urban
Development, National Indian Gaming Commission (Interior), Office of Justice Programs (Justice),
Environmental Protection Agency, Federal Trade Commission, U.S. Postal Service, National Park Service
(Interior), Nuclear Regulatory Commission, National Oceanic and Atmospheric Administration
(Commerce), Fish and Wildlife Service (Interior), and Federal Energy Regulatory Commission (Energy).
To compile this list, we searched Westlaw and regulations.gov for final rules containing the words
"severable," "separable," "severability," or "separability."
[12113113 DRAFT]
ADMiNiSTRATiVE SEVERABiLiTY CLAUSES
The significance of these data is, of course, debatable. The optimal frequency with
which agencies should include severability clauses depends on a host of factors that are
difficult to enumerate, Jet alone quant.ify. Agencies must consider whether making a
provision severable would be advisable. Some administrative rules, to be sure, are not
amenable to severability clauses either because they are composed of only a few parts or
because their efficacy depends on the interconnectedness of their provisions. In the case
of these kinds of rules, then, it is not surprising that agencies have not included
severability clauses. Moreover, other rules may be such that an agency does not know
whether it would want the courts to sever the invalid provisions. In such cases, an agency
might be well advised to wait for more information before clarifying its position with
respect to severability. Agencies must also consider the probability that a rule will be
successfully challenged in court. It would be a waste of time and resources for agencies
to include severability clauses in rules that are unlikely to be successfully challenged. If
the agency is relatively sure that the rule will survive any potential legal challenge, then
there would be no point in drafting a severability clause.
The paltry number of agencies that have included severability clauses in their rules
and the infrequency with which even those agencies use severability clauses, however,
does suggest that agencies may be employing severability clauses less frequently than
they should. Why do agencies include severability clauses in their rules so infrequently?
While more research needs to be done to understand why severability clauses are not
more common in administrative regulations, we offer four speculations here. 13
First, we think agencies have infrequently used severability clauses because, as we
explain in more detail in Part II, courts tend not to defer to them. The Jess that courts take
severability clauses seriously, the smaller the incentives for agencies to include
severability clauses in their regulations. The National Indian Gaming Commission's
response to a comment requesting that it include a severability clause in one of its rules
i 11 ustrates:
The Commission . . . addressed [the suggestion that the Commission
include a severability clause in its rule] in the previous preamble, stating
that severability clauses are not conclusive of an agency's intent and that
13
In future research, we hope to interview agencies' legislative counsel to determine why agencies choose
to include or not to include severability clauses in their rules. This research could be a piece of a larger
project of investigating the process of regulating from the inside, similar to important recent work that has
begun to shed light on the process of legislative drafting in Congress. See Abbe R. Gluck & Lisa Schultz
Bressman, Statut01y interpretation from the inside: An Empirical Study of Congressional Drafting,
Delegation and the Canons: Part i, 65 STAN. L. REv. I (2013); Abbe R. Gluck & Lisa Schultz Bressman,
Statutory interpretation from the inside: An Empirical Study of Congressional Drafting, Delegation and
the Canons: Part ii, 66 STAN. L. REV. (forthcoming 2014); Victoria F. Nourse & Jane S. Schacter, The
Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REv. 575 (2002). No work, to
our knowledge, has studied legislative drafting from the inside of agencies.
[12/13/13 DRAFT]
ADMJNISTRA TJVE SEVERABILITY CLAUSES
'the ultimate determination of severability will rarely tum on the presence

or absence of such a clause.' 14
Thus, one potential reason that agencies have not used severability clauses more
frequently is that courts do not defer to severability clauses as they do, for example, to
agency interpretations of their own rules. 15
Second, some agencies may prefer to clarify their positions on severability after a rule
has been promulgated, rather than including a severability clause in the rule itself. For
example, in its response to comments in one of its rules, the Federal Energy Regulatory
Commission wrote:
The Commission will not, at this time, make any determination whether or
not the open access transmission, stranded cost recovery and OASIS
provisions of Order Nos. 888 and 889 are severable . . . . it would be
premature to consider the appropriateness of a stay or withdrawal at this
time. Circumstances at the time of any court order would dictate how we
should proceed and we would consider all such circumstances, and the
entirety of our policy decisions, before determining how to respond to a
court decision. 16
While agencies are usually not this forthcoming about their reasons for not including
severability clauses, this comment is consistent with our impressions of current agency
practice. Agencies often clarify their positions on severability in informal agency
documents such as manuals, letters, and litigation briefs. And courts are sometimes
willing to defer to these less formal means of expressing the agency's will. 17 Thus, in his
dissent from a denial of rehearing en bane in MD/DC/DE Broadcasters Association v.
F.C.C., Judge David Tate! wrote: "When agencies clarify their intentions regarding
severability through petitions for rehearing, we normally correct our opinion and reinstate
the valid portions of the regulation." 18
One can easily understand why some agencies would choose to clarify their positions
on severability after promulgating a rule. Using informal means to clarify the agency's
14
77 Fed. Reg. 58707, 58709 (Sept. 2I, 20I2) (to be codified at 25 C.F.R. pt. 543) (quoting Canterbury
Liquors v. Sullivan, 999 F. Supp. I44 (D.MA. I994); Community for Creative Non-Violence v. Turner,
893 F.2d I387 (D.C. Cir. 1990) (internal citation omitted)).
15
See Auer v. Robbins, 5I9 U.S. 452 (1997); Bowles v. Seminole Rock Co., 325 U.S. 4IO (1945).
16
Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by

Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 62 FR I2274-0I
(I 997) (codified at I 8 C.F .R. 35).
17
18
We discuss the use of informal agency documents in more detail injia notes_ and accompanying text.
MD/DC/DE Broadcasters Ass'n v. F.C.C., 253 F.3d 732, 740 (D.C. Cir. 200I) (citing Virginia v. EPA,
I 16 F.3d 499, 500-0I (D.C. Cir. I 997); Davis County Solid Waste Mgmt., I08 F.3d I454, I455-56, I45960 (D.C. Cir. I 997)).
[12/13/13 DRAFT)'
position on severability could be Jess costly than using severability clauses because a
severability clause, as part of a substantive rule's official text, must go through either
notice and comment or formal rulemaking. Moreover, agencies have more information
after one of their rules has been challenged in court than they do when first promulgating
the rule. They are thus able to make more informed decisions about severability.
Third, some agencies may speculate that rules that contain severability clauses are
more likely to be struck down. This could be true for a number of reasons. First,
severability clauses may make weaknesses in an agency's regulatory program easier to
detect. Regulatees who disfavor a particular regulation can more easily identify a basis
for an attack if the regulation contains a severability clause, especially if it is connected to
a specific, potentially unlawful provision. Second, agencies may fear that severability
clauses weaken the agency's position in litigation. If the agency really believes that a
regulatory provision is lawful, a court might ask, why did the agency include a
severability clause? The F.D.A. perhaps evinced this concern in the following response to
comments, in which it emphasized that the severability of its rule is consistent with its
position that the rule is legally valid:
From the comments we have received to the proposed rule, we believe
there is a possibility that we will be challenged on various portions of the
final rule. We expect we will prevail in any such challenge, as the final
rule and each of its provisions is legally sound. If, however, a court should
conclude that any one or more provisions of the final rule is invalid, we
wish to emphasize our intent that the remaining provisions of the final rule
be permitted to take effect. 19
Members of Congress have expressed this same worry in the context of drafting the
provisions of statutes. After holding that the legislative veto is unconstitutional in INS.
v. Chadha, the Supreme Court then held that the legislative veto was severable from the
rest of the Immigration and Nationality Act. In a congressional hearing held in the
aftermath of Chadha, Representative Moakley remarked that including severability
clauses in legislation "has not been an intelligent policy" because those clauses "are a
dangerously open invitation to the courts to assume th[e] legislative function." 20
Similarly, agencies may choose not to include severability clauses in their rules so as not
to "invite" the courts to scrutinize closely the legality of those rules.
Fourth, agencies may believe that severability clauses make it easier for courts to
clash with the executive branch. A court may be more likely to find a legal infirmity in a
19
Applications for FDA Approval to Market a New Drug: Patent Submission and Listing Requirements
and Application of 30-Month Stays on Approval of Abbreviated New Drug Applications Certifying That a
Patent Claiming a Drug Is Invalid or Will Not Be Infringed, 68 FR 36676-01 (2003) (codified at 21 C.P.R.
314) (emphasis added).
20
The Supreme Court Decision in I.N.S. v. Chadha and Its Implications for Congressional Oversight and
Agency Rulemaking: Hearings Before the Subcomm. On Administrative La\\( and Governmental Relations
of the House Comm. On the Judiciary, 98th Cong., I st Sess. at 275 (198 8).
[12/13/13 DRAFT]
regulation if the court can set aside a single, invalid provision rather than setting aside the
entire rule. Agencies may decline to include severability clauses in rules, therefore, in
order to raise the stakes of invalidating their rules. In some circumstances, this may be a
good strategy in an interbranch game of chicken. 21
Whatever their reasons for not doing so, agencies should more frequently include
severability clauses in their rules because severability clauses serve several of the
overarching goals of administrative law-predictability, stability, and participation.
Administrative severability clauses make the regulatory environment more
predictable for regulatees whether the courts defer to those clauses or not. Consider first
the scenario in which courts do defer to administrative severability clauses. An important
aspect of complying with the law-especially for sophisticated actors-is predicting how
courts will treat legislative and administrative actions. When an agency promulgates a
potentially unlawful rule, regulatees subject to the rule must manage the uncertainty that
the courts will set the rule's invalid provisions aside. This uncertainty is compounded
when regulatees must also assess the probability that a court will set aside the entire rule.
Although sophisticated regulatees can hire lawyers to advise whether an unlawful
provision is severable, these predictions would be more reliable if agencies included
severability clauses in their rules because those clauses would instruct the court how to
remedy unlawful provisions.
Consider next the scenario in which courts do not defer to severability clauses-as
courts currently do not. In this scenario, severability clauses would still help regulatees
predict how an agency is likely to proceed in the future. Suppose, for example, that an
agency promulgates provisions A and B as a part of regulation R and states that
provisions A and B are severable. Further, suppose a court later invalidates A and B, after
ruling that provision A is unlawful and, contrary to the severability clause, inseverable
from provision B. In such a case, the regulation's severability clause would give
regulatees evidence that the agency is likely to repromulgate provision B, even in the
absence of provision A. By including severability clauses in their rules, therefore,
agencies are able to reduce the costs regulatees incur in trying to predict the agencies'
actions.
We do not mean to suggest, of course, that severability clauses make future legal
obligations entirely predictable. To the contrary, even if regulatees could be certain that
courts would sever an invalid provision from a particular administrative rule, they would
often still not be certain how the courts would sever the provision. Indeed, courts agonize
over finding an invalid statutory or regulatory provision severable, for it is not always
clear how to do least violence to the statute or rule. Consider an example involving the
severability of a statute. In United States v. Booker, after holding that the federal
mandatory Sentencing Guidelines were unconstitutional, the Court had to decide how to
21
Cf Fred Kameny, Are Inseverability Clauses Constitutional?, 68 ALB. L. REv. 997, 1001 (2005) (arguing
that some inseverability clauses serve "an in terrorem function, as the legislature attempts to guard against
judicial review altogether by making the price of invalidation too great.").
[12/13/13 DRAFT]
ADMJNJSTRA T!VE SEVERABILITY CLAUSES
remedy the unconstitutional aspect of the statute. 22 The Court could have invalidated in
toto the Federal Guidelines, but that remedy would have eliminated massive amounts of
legislative work product. All of the potential remedies short of entirely invalidating the
Federal Guidelines, however, involved substantially altering the content of the original
statute-an act that seemed to many to be legislating from the bench. In the end, the
Court read the mandatory Sentencing Guidelines as discretionary/ 3 though that remedy
put in place a sentencing regime that Congress never debated or voted on. 24 Thus,
agencies will not make the regulatory environment entirely predictable by including
severability clauses in their rules. Still, while the knowledge that a court will sever the
invalid provisions of a statute or rule will not eliminate all stakeholder uncertainty,
severability clauses would reduce uncertainty to a significant degree and thus make the
regulatory environment more predictable.
Severability clauses also make the legal regime more stable, reducing the costs that
agencies, regulatees, and society more generally incur as a result of changes in the law. 25
Consider agencies first. When agencies do not make their intentions regarding
severability clear to courts, courts will sometimes invalidate portions of rules that the
agencies would have wanted to stay in effect and that the agency will later readopt. This
wastes valuable agency resources. Agencies must spend the time and expense of
repromulgating rules that they had already put through formal rulemaking or notice and
comment. 26 Indeed, one (admittedly dated) study, which Elliott and Professor Peter
Schuck conducted, concluded that post-remand proceedings at the agency level took on
22
543
u.s. 220, 245 (2005).
23
543 U.S. at 254; see also Ayotte, 546 U.S. at 329 ("[M]indful that our constitutional mandate and
institutional competence are limited, we restrain ourselves from 'rewriting state law to conform it to
constitutional requirements' even as we strive to salvage it.") (quoting Virginia v. American Booksellers
Ass'n, Inc., 484 U.S. 383, 397 (1988)); Free Enterprise, 130 S. Ct. at 1362 ("It is true that the language
providing for good-cause removal is only one of a number of statutory provisions that, working together,
produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of
the Board's responsibilities so that its members would no longer be 'Officers of the United States.' Or we
could restrict the Board's enforcement powers, so that it would be a purely recommendatory panel. Or the
Board members could in future be made removable by the President, for good cause or at will. But such
editorial freedom-far more extensive than our holding today-belongs to the Legislature, not the
Judiciary.")
24
543 U.S. at 271-72 (Stevens, J., dissenting) ("While it is perfectly clear that that Congress has ample
power to repeal these two statutory provisions if it so desires, this Court should not make that choice on
Congress' behalf .... the law does not authorize the Court's creative remedy.").
25
See Levin, supra note_, at 300; Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands
Without Vacatur in Administrative Law, 36 ARIZ. ST. L.J. 599, 623 (2004).
26
See National Forest System Land Management Planning, 77 Fed. Reg. 21162, 21244 (April 9, 2012) (to
be codified at 36 C.P.R. pt. 219) ("The Department retained the [severability] provision in the final rule,
because rulemaking is an extensive Departmental and public undertaking, and the entire rule should not be
dismissed if a court finds only a portion of the rule is inappropriate.").
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ADMJNISTRA TIVE SEVERABILITY CLAUSES
10
average seventeen months to complete.27 These post-remand proceedings can be very

costly for agencies and can distract them from other important tasks. Severability clauses
are thus an important tool in saving agencies some of these costs.
Severability clauses can also save regulatees some of the costs associated with
changes in the law. Caught in the crossfire between agencies and the courts, regulatees
readapt to a regulatory vacuum at t2 , and
often must adapt to an agency's new rule at
finally readapt to the original rule's valid provisions at t 3 (once the agency repromulgates
them).Z8 For example, consider a hypothetical EPA regulation that restricts the levels of a
particular chemical in paint. Paint manufacturers that previously found it cost-effective to
use higher levels of that chemical in their products would be force to alter their products
to comply with the EPA's new regulation at time t 1. If, at t2, a court invalidates a pmtion
of the paint regulation and determines that the rest of the regulation is inseverable, it will
create a regulatory vacuum, in which the paint manufacturer is free to revert its products
to their pre-regulation chemical composition. But if EPA then repromulgates the paint
regulation without the invalid provision at t3, the manufacturer will be forced to adapt
once again. By contrast, if agencies made their intentions on severability clear and courts
deferred to those intentions, the paint manufacturer may only have to adjust to changes in
the law at t 1
Further, severability clauses save regulatees some of the costs of changes in the law
even when an agency unwisely includes a severability clause in one of its rules. Even
when courts defer to a severability clause and thereby leave in place a regulatory regime
that the agency did not intend, regulatees are still able to save costs because they will
only have to change their behavior at tl (when the agency first adopts its rule) and at t2
(when the agency changes the rule left in place by the courts).
Administrative severability clauses also save society costs associated with regulatory
vacuums. 29 Consider once again the case of the paint manufacturer. If the chemical that
EPA wishes to restrict is harmful to the public, then society will incur the costs of that
chemical between the time that the court invalidated the paint regulation and the time that
EPA repromulgates it. Moreover, in some cases, invalidating an entire regulation may
lead to an indefinitely long regulatory vacuum, for agencies are sometimes able to
promulgate a rule at time t 1 that they cannot, for political or fiscal reasons, repromulgate
at time t2 30 Severability clauses, therefore, would help protect society from the regulatory
27
See E. Donald Elliott & Peter H. Schuck, To the Chevron Station: An Empirical Study of Federal
Administrative Law, 1990 DUKEL.J. 984, 1050 (1990).
28
See David H. Gans, Severability as Judicial Lawmaking, 76 GEO. WASH. L. REv. 639, 653-54 (2008). To
be clear, we do not advocate that courts take these costs into consideration in individual cases. See
MD/DC/DE Broadcasters, 253 F.3d at 736 (arguing that to do so would violate the APA). However, when
crafting judicial presumptions or rules of deference, courts can properly consider these costs.
29
See Emily Hammond Meazell, Deference and Dialogue, 111 CoLUM. L. REv. 1722, 1725 (20 11 );
Michael C. Dorf, Fallback Law, 107 COLUM. L. REV. 303, 304 (2007); Levin, supra note_, at 298-99.
[12/13/13 DRAFT]
11
vacuums that result when courts invalidate rules that agencies do not wish to be
invalidated.
Severability clauses also make the administrative state more participatory. One
alternative way for agencies to clarify their intentions regarding severability is to use
informal agency documents, such as guidance manuals, notice letters, and litigation
briefs. These informal documents help regulatees to predict their legal obligations and
help co01ts to avoid the cycling costs of invalidating provisions of rules that the agencies
wished to leave in place. Accordingly, we encourage agencies to use them, when
appropriate, to clarify their existing regulations that do not contain severability clauses.
But informal means of clarifying the agency's intentions are less participatory than
express severability clauses because agencies are obliged to allow the public an
opportunity to comment on severability clauses that go into a rule's regulatory text or
statement of purpose,31 whereas agencies can issue informal documents without input
from the public. 32 As an aside, informal agency documents are also less reliable than
severability clauses because agencies can rescind informal documents at any time without
notice and comment. Accordingly, we favor the more participatory option and view
informal agency documents as a second-best option for clarifying the agency's position
on severability-useful for clarifying the severability of existing regulations that agencies
cannot afford to formally amend, but not as useful for future rulemakings as express
severability clauses.
Agencies should include severability clauses in their rules when the provisions of
those rules can function independently because those clauses would promote
predictability stability, and participation in the regulatory regime. We return to these
30
Of course, not every regulation is a good idea in the first place. Some (bad) regulations are more costly
to society than the absence of regulation. If one accepts the proposition that agency regulations are on
balance a net good, however, then legal vacuums are a cost that severability clauses would help agencies
and courts to avoid.
31
5 U.S.C. 553(c).
32
See Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REv. 59, 61 (1995)
([R]ulemaking enhances fairness by allowing all potentially affected members of the public to participate in
the decisionmaking process that determines rules that apply to their conduct."). The severability of
regulatory provisions is often important enough for stakeholders to make formal comments to the agency.
For example, in a comment on a proposed Fish and Wildlife Service (FWS) Rule, the Alaska Oil and Gas
Association (AOGA) wrote:
Regardless of the form of the final rule, AOGA urges FWS to make a finding of
severability. A severability finding would determine that the provisions of this rule, and
the various applications of the rule, are distinct and severable from one another. ... A
severability finding would ensure that if any provision or application of the 4( d) rule is
stayed or invalidated, such a stay or invalidation will not affect other provisions or
application to other persons or circumstances.
Letter from Marilyn Crockett, Executive Director, Alaska Oil and Gas Association, to U.S. Fish
and
Wildlife
Service
(July
14,
2008),
available
at
http://www.regulations.gov/#!documentDetaii;D=FWS-R7-ES-2008-0027-0083.
[12/13/13 DRAFT]
12
themes in Part III. We turn now to discuss the courts' reasons for not deferring to
administrative severability clauses.
II. THE ANALOGY BETWEEN STATUTORY AND

SEVERABILITY CLAUSES IS INAPT
ADMINISTRATIVE
This Part criticizes the courts' practice of not deferring to administrative severability
clauses. We first hypothesize that courts have largely ignored administrative severability
clauses because they have tended to treat them much the same as severability clauses in
statutes. The analogy between statutory and administrative severability clauses, however,
is misplaced. Even if there are good reasons for courts to disregard statutory severability
clauses, there are not good reasons for courts to disregard administrative severability
clauses.
This Part has two sections. Section A outlines the current doctrine on severability and
explains that comis have borrowed the two-prong test for the severability of
administrative regulations from the doctrinal test for the severability of statutes. Section
B then explains the current doctrine on severability clauses. In general, courts tend to
apply the two-prong severability test regardless of whether a statute or regulation
contains a severability clause. Section B then concludes that, even if courts should
disregard severability clauses in federal statutes, they do not have good reasons to
disregard severability clauses in administrative regulations.
A. The Two-Prong Test for Severability
The Supreme Court first laid out the current test for the severability of statutes in
Alaska Airlines, Inc. v. Brock. 33 In Alaska Airlines, several airlines brought a challenge to
the employee protection program provisions of the Airline Deregulation Act. 34 The Court
first held that the Act's legislative veto provision was unconstitutional and then held that
it was severable from the remainder of the Act. Justice Blackmun explained the Court's
reasoning:
Unless [I] it is evident that the Legislature would not have enacted those
provisions which are within its power, independently of that which is not,
the invalid part may be dropped if [2] what is left is fully operative as
law.3s
Thus, Alaska Airlines held that the courts should conduct a two-pronged analysis
when considering how to remedy invalid statutory provisions. First, is the remainder of
33 480 u.s. 678 (1987).

34 !d. at 680.
35
480 U.S. 678, 684 (1987) (internal quotation marks omitted).
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ADM!NISTRA TJVE SEVERABILITY CLAUSES
13
the statute "fully operative as law?"36 In other words, is the remainder workable? Can the
statute continue to function in the absence of the invalid provision (or application)? We
call this the "workability prong." Second, would Congress have enacted the remainder of
the statute or rule without the invalid provision? 37 We call this the "legislative bargain"
prong, as courts conducting this latter inquiry often try to recreate the bargain between
stakeholders that led to the statute's final text.
The Court's most recent decision on the severability of statutory provisions follows
the Alaska Airlines two-prong test. In Free Enterprise Fund v. Public Co. Accounting
Oversight Board, 38 the Court held that Sarbanes-Oxley's double for-cause restriction on
the President's authority to remove members of the Public Company Accounting
Oversight Board (PCAOB) violated the Appointments Clause because the President
could not exercise constitutionally adequate control over the members of the PCAOB. 39
The Court then held that in order to sever the invalid provision from the remainder of the
statute, the remainder must satisfy the Alaska Airlines two-prong test for severability.
After concluding that the statutory remainder satisfied both of these prongs, the Court
held that the double for-cause provisions were severable. 40
The current test for the severability of administrative regulations mirrors the Alaska
Airlines two-prong test for statutes. In K-Mart Corp. v. Cartier, the Court considered a
subsection of a Custom Service regulation, which permitted the importation of
trademarked goods where the foreign manufacturer had received the U.S. trademark
owner's authorization to use its trademark. 41 The Court held that the regulation violated
the Tariff Act of 1930, which prohibited the importation without written consent of
foreign merchandise bearing a trademark owned by a citizen of or a corporation
organized within the United States. 42 Writing for the Court, Justice Kennedy reasoned
36
!d. at 3161 (quoting New York v. United States, 505 U.S. 144, 186 (1992)). The "fully operative as law"
formulation is usually understood to mean that the remainder must be capable of functioning in the absence
of the invalid provision or application. See Buckley v. Valeo, 424 U.S. 106, 109 (1976); United States v.
Jackson, 390 U.S. 570, 585-86 (1968). Some commentators thought that Alaska Airlines had changed the
workability prong slightly by insisting that the remainder "function in a manner consistent with the intent
of Congress." See Nagel, supra note _, at 216 (quoting Alaska Airlines, 480 U.S. at 685 (emphasis
added)). Regardless of whether Alaska Airlines did change the test, however, the Roberts Court seems to
favor Buckley's formulation of the workability prong--"fully operative as law." For articles tracing the
historical development of severability doctrine, see Nagle, supra note_; Klukowski, supra note_; and
Shumsky, supra note_, at 232-45.
37
See RICHARD H. FALLON ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM, 182-84 (5th ed. 2003) (describing severability doctrine as applied to federal statutes).
38
130 S. Ct. 3138 (2010).
39
Jd. at3147.
40
!d.
41
486 U.S.-281, 289 (1988) (discussing 19 C.F.R. 133.21(c)(3) (1988)).
42
Jd. at 285 (discussing 46 Stat. 741 (codified as amended 19 U.S.C. 1526) (2012))).
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ADM!NISTRA TIVE SEVERABILITY CLAUSES
14
that the invalid subsection of the Custom Service regulation was severable from the
remainder because invalidating the subsection would "not impair the function of the
statute as a whole" and because "there is no indication that the regulation would not have
been passed but for its inclusion." 43 Although Justice Kennedy's two-prong analysis did
not cite any cases, his reasoning closely tracked the two-prong test for the severability of
statutes that the Court had articulated just one year earlier in Alaska Airlines. Since the KMart decision, then, courts have tended to treat the severability of invalid administrative
provisions as on par with the severability of invalid statutory provisions. 44
The D.C. Circuit's most recent statement on the severability of administrative
regulations followed suit. In MD/DC/DE Broadcasters Ass 'n v. F. C. C., the court
considered the constitutionality of an F .C.C. rule pertaining to the equal employment
opportunity policies of broadcasters. 45 The F.C.C. rule required broadcast stations that
sought licenses from the F.C.C. to make "a good faith effort to disseminate widely any
information about job openings." 46 The rule allowed broadcasters to select one of two
options for accomplishing that goal, "[i]n order to 'afford[] broadcasters flexibility in
designing their EEO programs."' 47 Under Option A, licensees had to "undertake four
approved recruitment initiatives in each two-year period."48 The F.C.C. did not require
licensees that selected Option A to report the race and gender of job applicants. Under
Option B, licensees could design their own outreach programs but had to report the race
and gender of each job applicant and how the applicant was referred to the station.49 The
D.C. Circuit held that Option B was unconstitutional with respect to minority applicants
and then considered whether Option B was severable from the rest of the statute. As in
the case of statutes, the D.C. Circuit held that severability depends on a two-prong test:
"[I] the intent of the agency and ... [2] whether the remainder of the regulation could
43
K-Mart, 486 U.S. at 294.
44
For cases where the D.C. Circuit has cited K-Mart on the question of severability, see MD/DC/DE
Broadcasters, 236 F.3d at 22; Virginia v. E.P.A., 116 F.3d 499 (D.C. Cir. 1997); Davis County Solid Waste
Management v. E.P.A., 108 F.3d 1454 (D.C. Cir. 1997); Alliance for Community Media v. F.C.C., 10 F.3d
812 (D.C. Cir. 1993); Financial Planning Ass'n v. S.E.C., 482 F.3d 481,493 (D.C. Cir. 2007).
45
236 F.3d 13, 16 (D.C. Cir. 2001). Several more recent cases have addressed the severability of
administrative regulations, but the D.C. Circuit has decided these cases on the "legislative bargain" prong
alone, without resorting to the workability prong. See, e.g., North Carolina v. E.P.A., 53! F.3d 896, 929
(D.C. Cir. 2008); New Jersey v. E.P.A., 517 F.3d 574 (D.C. Cir. 2008); National Treasury Employees
Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006). The D.C. Circuit has given no indication, however, that
severance no longer requires the workability prong.
46
!d at 17 (quoting Review of the Commission's Broadcast Equal Employment Opportunity Rules and
Policies, 15 F.C.C.R. 2329, 3, 2000 WL 124381 (2000)).
47
/d
48
/datl7.
49
!d. at I 7 (citing 47 C.F.R. 73.2080(d)).
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ADMJN!STRAT!VE SEVERABILITY CLAUSES
15
function sensibly without the stricken provision." 50 Here again, severability depends on
the workability and legislative bargain prongs. 51
From the Court's decision inK-Mart to the present day, then, courts have treated the
severability of statutes and regulations as analogous issues. And in many respects this
approach to the two forms of severability clauses is sensible. After all, in both cases,
courts must determine how to remedy a legislative provision (i.e., a statute or a rule). And
in both cases the courts want neither to eliminate more work product than is necessary
nor to leave in place a statutory or regulatory scheme that the legislative would not have
approved in the first place. As we shall see, however, the parallel treatment of
severability issues in statutory and administrative law has led to an unreasonable doctrine
on administrative severability clauses.
B. A Misguided Approach to Administrative Severability Clauses
Both the Supreme Court and the D.C. Circuit have repeatedly emphasized that the
touchstone of severability analysis is legislative intent. 52 After invalidating a provision of
a statute or rule, courts inquire what the legislative body would have intended had they
known that the provision would be struck down. For to do otherwise would be to legislate
from the bench.
Historically, courts treated severability clauses as good evidence of legislative intent.
Thus, in Champlin Refinery Co. v. Corp. Commission of Oklahoma-one of the first
cases to address the severability of a statute-the Supreme Court wrote: "[The
severability clause] discloses an intention to make the Act divisible." 53 Courts took
severability clauses at face value and treated them as express statements of what the
legislature would want a court to do in the event that the court invalidated a statutory
50
MD/DC/DE Broadcasters, 236 F.3d at 22 (citing K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294
(1988)).
51
In other cases, the D.C. Circuit has explained that the legislative bargain prong is satisfied unless "there
is 'substantial doubt' that the agency would have adopted the severed portion [of the regulation] on its
own." North Carolina v. E.P.A., 531 F.3d 896, 929 (D.C. Cir. 2008); Davis County Solid Waste Mgmt. &
Energy Recovery Serv. Dist. v. E.P.A., 108 F.3d 1454, 1459 (D.C. Cir. 1997)); North Carolina v. F.E.R.C.,
730 F.2d 790, 795-96 (D.C. Cir. 1984). Courts also often find "substantial doubt that a partial affirmance
would comport with the [agency's] intent" when the component parts of a regulation are "intertwined."
Telephone & Data Sys., Inc. v. FCC, 19 F.3d 42,50 (D.C. Cir. 1994).
52
Ayotte, 546 U.S. at 330 (quoting Califano v. Westcott, 443 U.S. 76, 94 (1979) (Powell, J., concurring in
part and dissenting in part) ("[T]he touchstone for any decision about remedy is legislative intent, for a
court cannot 'use its remedial powers to circumvent the intent of the legislature."')); Davis Cty. Solid
Waste Mgmt. v. E.P.A., 109 F.3d 1454, 1459 (D.C. Cir. 1997) (quoting North Carolina v. F.E.R.C., 730
F.2d 790, 795-96 (D.C. Cir. 1984 )) ("Whether an administrative agency's order or regulation is severable ..
. depends on the issuing agency's intent."); Buckley v. Valeo, 424 U.S. 1, 108 (1976); Carter v. Carter Coal
Co., 298 U.S. 238, 312 (1936).
53
Champlin Refinery Co. v. Corp. Comm'n of Oklahoma, 286 U.S. 210,235 (1932) (citing Utah Power &
Light Co. v. Pfost, 286 U.S. 165, 165 (1932)).
[12/13/13 DRAFT]
16
provision. 54 It was only when a statute did not contain a severability clause that courts
would tum to their own independent analysis of the severability of an invalid provision.
Today, courts do not treat statutory severability clauses with so much deference.
Severability clauses are no longer dispositive of Congress' legislative intent. Instead, the
Supreme Court has held that severability clauses create a "presumption of severability." 55
A severability clause is "an aid merely; not an inexorable command."56 This presumption
can be overcome by a showing that the legislative history or the statute's structure
indicate that the statute would not have been passed without the invalid provision. 57 And
even the term "presumption" suggests that severability clauses are more important than
they in fact are. Judge-made presumptions ordinarily affect the outcomes of cases in
54
See Nagle, supra note_, at 222 n.97 (citing Ohio Tax Cases, 223 U.S. 576,594 (1914); Yee Gee v. City
& County of San Francisco, 235 F. 757, 768-69 (N.D. Cal. 1916); Standard Home Co. v. Davis, 217 F. 904,
916 (E.D. Ark. 1914); State ex rei. Clarke v. Carter, 56 So. 974, 977 (Ala. 1911); In re Opinion of Justices,
123 P. 660, 662 (Colo. 1912) (en bane); Michigan Cent. R.R. v. Murphy, 120 N.W. 1073, 1078 (Mich.
1909); Saari v. Gleason, 148 N.W. 293,295-96 (Minn. 1914); United N.J. R.R. & Canal Co. v. Parker, 69
A. 239, 245 (N.J. 1908); State v. Clausen, 117 P. I 101, 1114 (Wash. 1911); Borgnis v. Falk Co., 133 N.W.
209,218 (Wis. 191 1)).
55
480 U.S. 678,686 (1987); see also I.N.S. v. Chadha, 462 U.S. 919, 932 (1983); but see Nat'! Federation
of Independent Businesses v. Sebelius, 132 S.Ct. at 2668 (Scalia, J., dissenting) ("[W]hile the Court has
sometimes applied at least a modest presumption in favor of ... severability, it has not always done so.")
(internal quotation omitted). Commentators disagree about whether the presumption exists even when a
statute or regulation does not contain a severability clause. Compare Kenneth A. Klukowski, Severability
Doctrine: How Much of a Statute Should Federal Courts Invalidate?, !6 TEX. REV. L. & POL. 1, _ (2011)
("[C]ontrary to what some scholars argue, without a severability clause there is ... a presumption [in favor
of severability] only in the lower courts, not the Supreme Court."); John Copeland Nagle, Severability, 72
N.C. L. REV. 203,220-21 (1993) with Gillian E. Metzger, Facial Challenges and Federalism, !05 COLUM.
L. REV. 873, 884 (2005); C. Vered Jona, Cleaning Up For Congress: Why Courts Should Reject the
Presumption of Severability in the Face of Intentionally Unconstitutional Legislation, 76 GEO. WASH. L.
REV. 698, 704-05 (2008); Michael D. Shumsky, Severability, Inseverability, and the Rule of Law, 41 HARV.
J. ON LEGIS. 227, 243 (2004); Michael C. Dorf, Fallback Law, 107 COLUM. L. REV. 303, 313 (2007). The
disagreement comes down to whether one counts the plurality opinion in Regan v. Time, Inc. as good law.
In Regan, the plurality held that there is a general presumption in favor of severability, 468 U.S. 641, 65253 (1984), but a majority of the Court has never adopted this holding, despite opportunities to do so. See
Nagle, supra note_, at 221.
56
Reno v. American Civil Liberties Union, 521 U.S. 844, 884 n.49 (1997) (quoting Dorchy v. Kansas, 264
U.S. 286,290 (1924)) (internal quotation marks omitted).
57
Alaska Airlines, 480 U.S. at 686. The Court's recent decision on the constitutionality of the Affordable
Care Act is illustrative. Both Chief Justice Roberts's majority opinion and Justice Ginsburg's concurrence
stated that the Court would follow Congress' explicit instruction that the Medicaid expansion be severed
from the rest of the Act. See Nat 'I Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566, 2607
(2012) ("We then follow Congress's explicit textual instruction to leave unaffected 'the remainder of the
chapter, and the application of [the challenged] provision to other persons or circumstances."'); id. at 2642
(Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) ("In view ofthe
Chief Justice's disposition, I agree with him that the Medicaid Act's severability clause determines the
appropriate remedy."). The majority opinion, however, then proceeds to determine--as if a totally separate
inquiry-"what Congress would have intended in light of the Court's constitutional holding." !d. at 2607
(internal quotation omitted).
[12/13/13 DRAFT]
17
which they operate. Not so in the case of the presumption in favor of severability. For the
Supreme Court has stated that "the ultimate determination of severability will rarely turn
on the presence or absence of [a severability] clause." 58 This leaves the observer to
wonder just how significant (or insignificant) severability clauses in legislation are.
Indeed, in several cases involving the question of severability, courts have completely
ignored the existence of a severability clause. 59
Courts treat administrative severability clauses in the same fashion as statutory
severability clauses. Administrative severability clauses create a "presumption" of
severability, but this presumption is rarely (if ever) important to a court's decision. Here
again, courts that have addressed administrative severability clauses have operated on the
assumption that they raise considerations identical to those raised by statutory
severability clauses. Indeed, the D.C. Circuit borrowed its dictum that the "determination
of severability" rarely turns on "the presence of a severability clause from a Supreme
Court case involving a statutory severability clause. 60
The Court's approach to severability clauses is open to criticism. First, the practice of
bypassing severability clauses and directly conducting the two-prong severability test
inverts ord.inary methods of statutory interpretation, according to which courts look first
at the text, and then to the statute's legislative history or purpose. 61 Courts' treatment of
severability clauses also departs from the traditional canon construing statutes and
regulations to avoid surplusage.62
Second, if the touchstone of severability analysis is legislative intent, then the court's
treatment of severability clauses is puzzling. In the absence of a severability clause, the
two prongs of the severability test are sensible criteria for deciding whether to sever an
invalid portion of a statute or rule. 63 But in the presence of a severability clause, the
58
United States v. Jackson, 390 U.S. 570, 586 n.27 (1968)
59
See Nagle, supra note_, at 240 n.180 (citing Ragsdale v. Turnock, 841 F.2d 1358, 1377 (7th Cir. 1988)
(Coffee, J., dissenting) (criticizing the majority for "completely disregard[ing] the statute's severability
clauses as if they didn't exist"); Buckley v. Valeo, 424 U.S. 1, 108-09 (1976) (holding a statute severable
without citing the severability clause); Eubanks v. Wilkinson, 937 F.2d 1118, 1128-29 (6th Cir. 1991)
(discussing severability without noting the severability clause).
6
Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1394 (D.C. Cir. 1990) (quoting United
States v. Jackson, 390 U.S. 570, 585 n.27 (1968)) ("[The] determination of severability will rarely turn on
the presence or absence of [a severability clause].").
61
See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 410 (1993); Estate of Cowart v. Nickols Drilling
Co., 505 U.S. 469,475 (1992); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984); Shumsky, supra note_, at 230-31.
62
63
See, e.g., West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991).
Indeed, the prongs of the test can be understood as two different ways of elucidating the intent of
Congress. In the case of the first prong, courts reasonably presume that Congress does not intend to enact
statutes that are unworkable (or that do not "function sensibly"). If invalidating a provision of a statute or
rule renders the remainder unworkable, the courts presume that Congress would not have wanted the
remainder to remain in effect. Alaska Airlines, 480 U.S. at 684 ("Congress could not have intended a
[12/13/13 DRAFT]
18
workability and legislative bargain prongs seem circuitous ways of determining the
legislative intent. One wonders why courts would need to look any further than the text. 64
A typical severability clause, for example, reads as follows: "The provisions of this part
are separate and severable from one another. If any provision is stayed or determined to
be invalid, it is the Commission's intention that the remaining provisions shall continue in
effect." 65 If a statute or rule contains this clause, it is strange to ask whether Congress or
the agency intended that the remainder stay in effect, for the severability clause says so
expressly .66
Moreover, one might even think that it is impossible for the two prongs of the
severability test-correctly administered-to deliver a result contrary to a severability
clause. Severance arguably cannot undo the legislative bargain because the severability
clause was itself a part of that bargain. 67 Similarly, by including a severability clause,
constitutionally flawed provision to be severed from the remainder of the statute if the balance of the
legislation is incapable of functioning independently."). In the case of the second prong, courts try to
determine Congress' intent by examining the legislative history to determine the importance of the invalid
provision to the rest of the statute and thereby recreate the "legislative bargain." See id. at 685 (stating that
the legislative veto is not essential to the legislative bargain); City of New Haven v. United States, 809 F.2d
900, 907 (D.C. Cir. 1987); Atkins v. United States, 556 F.2d 1028, 1086 (1977).
64
See David H. Gans, Severability as Judicial Lawmaking, 76 GEO. WASH. L. REV. 639, 649 n.51 (2008).
65
FTC Children's Online Privacy Protection Rule, 16 C.P.R. 312 (2013) (emphasis added); see also 70
Fed. Reg. 25,654, 25,655-56 (May 13, 2005) (codified at 36 C.P.R. 294.18) ("The Department wishes to
make its intentions clear that should all or any part of the regulation be set aside, the Department does not
intend that the prior rule be reinstated, in whole or in part.") (emphasis added); Champlin Refinery Co. v.
Corp. Comm'n of Oklahoma, 286 U.S. 210, 235 (1932) (citing Utah Power & Light Co. v. Pfost, 286 U.S.
165, 165 (1932)).
66
For this reason, some commentators have argued for a plain meaning rule for statutory severability
clauses. See Nagle; supra note_, at 234-46; Shumsky, supra note_, at 245-67; Movsesian, supra note
_,at 77-80.
67
But see National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566, 2671-76 (2012)
(Scalia, J., dissenting) (arguing that the remaining provisions of the Affordable Care Act were inseverable
from the individual mandate and Medicaid expansion because those aspects of the Act were essential to the
legislative bargain). As noted, in conducting their analysis under the legislative bargain prong, courts often
ask how important an invalidated provision was to the general statutory or regulatory scheme. Some
severability clauses, however, recognize the importance of a regulatory provision while maintaining that
the provision is severable from the remainder. For example, in the Discussion of its General Statement of
Purpose to one of its rule, the F.C.C. commented:
We remind stations and MVPDs that they must always utilize their audio pass-through
equipment so that it does not harm the RP-compliant programming they receive and
transmit to their viewers. We note that this safe harbor is an important but severable
element of our compliance and enforcement scheme. We are establishing it to simplify
our enforcement process for the benefit of stations and MVPDs, but it is not so
fundamental to the scheme as a whole that the CALM Act regulations adopted in the item
would be unenforceable in its absence. If the safe harbor is declared invalid or
unenforceable for any reason, it is our intent that the remaining CALM Act regulations
shall remain in full force and effect.
[12/13113 DRAFT]
19
Congress or the agencies have said that the remainder of a statute or rule would, in their
judgment, still be workable even in the absence of a particular provision or set of
provisions.
To be sure, the shift in the severability doctrine has not made a significant difference
in case outcomes, as the Supreme Court has not invalidated a statute containing a
severability clause in its entirety since 1936.68 In National Federation of Independent
Businesses v. Sebelius, however, four Justices on the Supreme Court expressed their
willingness to strike down an entire statute containing a severability clause. 69 It is thus
worthwhile to address the prudence of the current doctrine.
Why do courts treat severability clauses in this odd fashion? Our research has not
revealed many courts or commentators addressing this question. Those who have
ventured a guess have usually justified disregarding severability clauses on the ground
that they are "boilerplate" provisions that do not truly reflect the legislative intent. 70
Severability clauses, critics maintain, are added to statutes without much (or any)
consideration and thus do not adequately reflect Congress' intentions.71 In other words,
Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, 77 FR 40276-01
(codified at 47 CFR 73, 76) (emphasis added).
68
Shumsky, supra note_, at 240. Carter v. Carter Coal Co. was the last case to strike down an entire
statute containing a severability clause. 298 U.S. 238 (1936).
69
See National Federation oflndependent Businesses, 132 S. Ct. at 2668 (Scalia, J., dissenting).
70
See Trainor v. Hernandez, 431 U.S. 434, 463 (1977) (Stevens, J., dissenting) (mentioning "a legitimate
severability clause, or some other equally innocuous provision"); Lindenberg v. First Fed. Sav. & Loan
Ass'n, 90 F.R.D. 255, 258 (N.D. Ga. 1981) (describing severability clause as "merely boilerplate"); 134
Cong. Rec. 12,280 (1988) (state of Rep. Frank) (describing a severability clause as ''just boilerplate
severability"); H.R. Rep. No. 988, 91st Cong., 2d Sess. 49 (1970) (described severability clause as "the
usual separability provision in legislation"); 140 Cong. Rec. H. 3117 (May 5, 1994) (statement of
Representative Slaughter) (arguing that floor debate on the inclusion of a severability clauses was
unnecessary); 2 SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION 44.08 (5th ed. 1992); 2
NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION 44.8, at 585 (6th ed. 2001); Fred
Kameny, Are Jnseverability Clauses Constitutional?, 69 Aui. L. REv. 997, 1005 (2005); Max Radin, A
Short Way With Statutes, 56 HARV. L. REv. 388, 419 (1942); Robert L. Stern, Separability and Separability
Clauses in the Supreme Court, 51 HARV. L. REv. 76, 122 (1937); Laurence H. Tribe, The Legislative Veto
Decision: A Law By Any Other Name?, 21 HARV. J. ON LEGIS. I (1984) (referring to "a boiler-plate
severability clause (of the sort most laws contain)"); Israel E. Friedman, Jnseverability Clauses in Statutes,
64 U. CHI. L. REv. 903, 903 (I 997) ("In part because severability clauses have become boilerplate, these
clauses have had little effect on courts making severability determinations.").
71
Some scholars have advanced arguments that severability clauses are unconstitutional. For example,
Tom Campbell has argued that severance (always and everywhere) violates the Constitution's
bicameralism-and-presentment requirements. See Tom Campbell, Severability of Statutes, 62 HASTINGS
L.J. 1495 (2011); see also Laurence H. Tribe, The Legislative Veto Decision: A Lcrw by Any Other Name?,
21 HARV. J. ON LEGIS. 1, 22 (1984) (mentioning this argument, but not asserting it); Lars Noah, The
Executive Line Item Veto and the Judicial Power To Sever: What's the Difference?, 56 WASH. & LEE. L.
REv. 235, 236-41 (1999) (same); but see Tobias A. Dorsey, Sense and Severability, 46 U. Rich. L. Rev.
877 (2012) (arguing that Campbell's argument would undermine almost every provision of the U.S. Code).
In Campbell's view, just as the President and Congress cannot exercise line-item or one-house vetos, so too
[12!13/13 DRAFT]
ADMINISTRA TJVE SEVERABILITY CLAUSES
20
courts should disregard severability clauses because the legislative body did not really
mean it.
We have not seen this argument articulated in a systematic way-perhaps because
doing so puts one in the awkward position of asserting that courts should ignore the
explicit text of a statute or rule. Ever mindful of the rights of straw men, we therefore try
our hands at supplying some more rigor to this argument. In the end, we remain dubious
that the argument successfully undermines severability clauses in statutes. However, even
if one accepts the argument against deferring to statutory severability clauses, we submit
that the argument does not militate against severability clauses in administrative
regulations.
The argument that courts should not defer to severability clauses because those
clauses do not reflect the will of the legislature is usually framed in terms of how
attentive members of Congress are to severability clauses. 72 Any serious objection
regarding the will of the legislature, however, has to be about more than the members
alone. If the fact that the members themselves did not pay much attention to a particular
statutory provision could undermine that provision's status as Jaw, then it would
undermine far more than just severability clauses. Indeed, the argument would spread like
a contagion, indicting massive portions of the U.S. Code. For today members of Congress
delegate the lion's share of their lawmaking responsibilities to their staffs. 73 In their
survey of staffers on the Senate Judiciary Committee, Victoria Nourse and Jane Schacter
concluded that ''[m]ost staffers indicated that, as a general rule, senators themselves did
not write the text of Jegislation." 74 For the boilerplate objection to have any teeth, then, it
must be about the attention and expertise of congressional staff, as well as the members.
Perhaps, then, courts should not defer to severability clauses because congressional
staffs typically do not pay much attention to those clauses. This argument presumes a
particular picture of what it takes for a statutory provision to comport with the legislative
the courts cannot leave in place laws that have not gone through Article I, Ts requirements for
lawmaking.
72
Strictly speaking, it is not true that members never pay attention to severability clauses in statutes. The
most dramatic example is the Senate debate over the Bipartisan Campaign Reform Act (BCRA). Before the
vote in the Senate, two Senators tried to insert an inseverability clause into the text of the bill. In response,
the Senate held several days of debate, which made national news coverage. See Excerpts From Senate
Debate on Donations: Skirmishes and Predictions, N.Y. TIMES, Mar. 30, 2001, at A 16. Another example is
Senator Helms's attempt to remove a severability clause and add an inseverability clause to a 1989 child
care bill. See 135 Cong. Rec. S 7439-42 (daily ed. June 23, 1989). Critics who noticed the maneuver
claimed this was Helms's attempt to "kill the bill." !d. S 7442 (state of Sen. Ford).
73
See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case
Study, 77 N.Y.U. L. REV. 575, 585 (2002); Abbe R. Gluck & Lisa Schultz Bressman, Statut01y
Interpretation ji01n the Inside-An Empirical Study of Congressional Drafting, Delegation and the
Canons: Part 11, 66 STAN. L. REv. 1, 35 (forthcoming 2014) ("The Court ... rarely acknowledges that
staff, not Members, are the primary drafters of enacted text.").
74
Nourse & Schacter, supra note_, at 585.
[12/13/13 DRAFT]
21
intent. On this view, the legislature or their staffs must actively consider a provision in a
bill in order to intend for that provision to become Jaw. In the case of severability clauses,
moreover, this theory of legislative intent may even require that the legislature and their
staffs consider all of the combinatorially possible ways in which a statute could change
were a court to invalidate one of the statute's provisions. 75
As a constitutional matter, one should be dubious of this notion of legislative intent.
We share Michael Shumsky's view that the Constitution does not permit challenges to a
portion of an act of Congress that has passed through Article I, 7' s bicameralism-andpresentment requirements on the ground that Congress did not really mean it. 76 Indeed, if
courts had the authority to review congressional enactments on the ground that Congress
did not really mean what they had enacted, courts would have truly awesome power visa-vis the other branches-a clear violation of the structural principle of separation of
powers. For the purposes of this Article, however, we set these constitutional doubts to
one side.
Although we are inclined to agree with commentators who have criticized courts for
ignoring statutory severability clauses, we hear the ring of truth in the claim that
Congress is institutionally ill-equipped to have an informed view of the workability of
severability clauses. However, even if arguments about the legislative intent of Congress
undermine the authority of severability clauses in statutes, they do not undermine the
authority severability clauses in administrative regulations. Critics have a number of
reasons to doubt that severability clauses reflect the considered judgments of members or
their staffs, but none of these reasons supports the notion that severability clauses do not
reflect the legislative will of the agencies. To the contrary, many of the reasons for
thinking that Congress is institutionally ill-equipped to consider the severability of
statutes are actually reasons to think that the agencies are institutionally well-equipped to
consider the severability of their rules.
First, the impression of many commentators is that severability clauses do not reflect
anyone's considered legislative judgment. Rather, congressional staffers simply throw a
severability clause "unthinkingly ... into a statute without considering whether [they]
really want[] each provision of [their] handiwork to stand independently." 77 To our
75
See Max Radin, A Short Tf1ay with Statutes, 56 HARV. L. REV. 388, 419 (I 942) ("Are we really to
imagine that the legislature had, as it says it has, weighed each' paragraph literally and come to the
conclusion that it would have enacted that paragraph if all the rest of the statute were invalid? That
contradicts the ordinary experience of which every citizen takes notice.")
76
See Shumsky, supra note_, at 247. Other arguments for treating severability clauses at face value are
arguments for textualism more generally. For example, because statutes bind people other than the
legislators who created them and because legislative history is not always readily available to citizens,
some think that the text-including severability clauses-is, for the most part, all that should matter in
statutory construction. See Movsesian, supra note_, at 67-71, 73-82. We take no sides in the textualism
debate here.
77
Nagle, supra note_, at 239; see also Stem, supra note_, at 122 ("[Severability] clauses have been so
indiscriminately used, that, if taken literally, they would cover situations which they were never intended to
reach. The more such clauses came to be attached as a matter of course to all statutes without thought as to
[12/13/13 DRAFT]
22
knowledge, no one has done empirical research to investigate the ways that severability
clauses find their way into statutes. We are inclined to agree, however, that members and
their staff do not spend a lot of time or resources investigating and reflecting on the
potential implications of severability clauses. 78
But even if Congressional staffers do just throw severability clauses into statutes, this
does not undermine the authority of severability clauses in administrative regulations.
Although no empirical research has been done on the process of regulatory drafting
within administrative agencies, it does not appear that agencies just throw severability
clauses into their regulations. 79 As we noted in Part I, even the most active user of
severability clauses-the FTC-has included a severability clause in only 8.5% of its
rules since 2000. 80 Moreover, special administrative checks inhibit agencies from
including severability clauses in their rules unthinkingly. While Congress may include
severability clauses in statutes without public input, the Administrative Procedure Act's
rulemaking procedures require agencies to be responsive to public input about their rules.
To be sure, congressional committees do hold regular hearings on proposed legislation
that in principle permit the public to provide input about severability clauses.
Administrative agencies, however, are required to respond in a rational way to public
comments, otherwise their rules can be set aside as arbitrary and capricious. 81 Moreover,
our research suggests that agencies tend to respond with care to comments suggesting the
inclusion or removal of severability clauses. 82 We, therefore, reject the idea that
administrative agencies just throw severability clauses into their rules.
what their formal effect would be, the more the courts came to treat them as the formal appendages which
they often were.").
78
Critics of this argument, however, have noted that this claim is consistent with the view that the majority
in Congress nearly always intends for statutes that they support to be severable. See Shumsky, supra note
_,at 247 ("[T]he fact that Congress almost always prefers statutes to be severable-and usually chooses to
reveal that preference explicitly to the courts--does nothing to show that Congress does not really mean
what it says.").
79
Cf Friedman, supra note _, at 911-12 (making a similar argument that inseverability clauses, as
opposed to severability clauses, in statutes are not mere "boilerplate").
80
See supra note_ and accompanying text.
81
See Reyblatt v. NRC, 105 F.3d 715, 722 (D.C. Cir. 1997) ("An agency need not address every comment,
but it must respond in a reasoned manner to those that raise significant problems.").
82
See, e.g., Department of the Interior, 77 Fed. Reg.58708-01 (Sept. 21, 2012) (codified at 25 C.F.R. Part
543) ("[S]ome commenters advocated for the inclusion of a severability clause . . . . the Commission
declines to include a severability clause in this regulation because it believes that the regulations are not so
intertwined that striking one provision would necessarily always require invalidation of the entire part, and
the lack of a severability clause will not compel a court's finding on the issue."); Endangered and
Threatened Wildlife and Plants; Special Rule for the Polar Bear, 73 Fed. Reg. 76249-01 (Dec. 16, 2008)
("We recognize that severability clauses are frequently used in legislation but have decided that such a
clause would not be useful in the current rule.").
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ADMINJSTRA TJVE SEVERABILITY CLAUSES
23
Second, like the members themselves, congressional staffers often work under
tremendous time pressure, making it less likely that they will have had the opportunity to
consider the ramifications of a complex, probabilistic, and procedural instrument such as
a severability clause. In Nourse and Schacter's study, for example:
Several staff members complained about the dangers of drafting bills on
the floor, as this increased the risks of the process becoming "ugly,"
haphazard, and driven by political imperative. Staffers expressed concern
about last-minute drafting without a lot of public scrutiny. Specific fears
included provisions being "slipped in," people losing track of whether one
provision squares with another, or a provision being added to satisfy the
needs of a senator in trouble for re-election. 83
Similarly, in Gluck and Bressman's study, respondents reported that time pressures often
made it impossible to comply with their goal of making the usage of terms consistent
across a statute. 84 Neither Nourse and Schacter nor Gluck and Bressman surveyed staffers
on their use of severability clauses, but we suspect that time pressures also inhibit staffers
from meaningfully considering the potential ramifications of severability clauses.
By contrast, agencies exercise far more care when promulgating a rule. Indeed,
formal requirements imposed by the agency organic acts, the Administrative Procedure
Act, the Paperwork Reduction Act, and OMB review mandate that they do so. Extant
studies suggest that the average time between an agency's notice of proposed rulemaking
and the final rule is somewhere between one and a half and five years-far longer than
the time between election cycles that Congress has to pass major legislation.SS True,
agencies operate under their own pressures. Congress often imposes deadlines on agency
action, and even in the absence of such deadlines, the AP A requires that "within a
reasonable time, each agency shall proceed to conclude a matter presented to it."86
Further, like Congress, agencies are not immune from the pressures of election cycles.
Still, we think it is fair to say that agencies tend to promulgate rules in a more deliberate
and systematic way than Congress enacts statutes.
Third, the larger the regulatory space in which an organization legislates, the more
difficult it is for that organization-because of limitations on resources and expertise-to
meaningfully consider the potential consequences of severability clauses. Congress'
83
Nourse & Schacter, supra note_, at 592-93.
84
Gluck & Bressman, supra note_, at 31.
85
See Thomas 0. McGarity, Some Thoughts on "Deossifj;ing" the Rulemaking Process, 41 DUKE L.J.
1385, 1385-86 (1992); Cornelius M. Kerwin & Scott R. Furlong, Time and Rulemaking: An Empirical Test
ofTheOJy, 2 J. PUB. ADMIN. REs. & THEORY 113, 134 (1992) (finding that the EPA took an average time of
I ,108 days to promulgate a rule); Stephen M. Johnson, Ossification's Demise? An Empirical Analysis of
EPA Rulemaking From 2001-2005, 38 ENVTL L. 767, 770 (2008) (finding that, bet\veen 2001 and 2005,
EPA took an average time of bet\veen 1.5 and 2 years to finalize a rule after publishing it).
86
5 u.s.c. 555(b).
[12/13/13 DRAFT]
24
regulatory space is nearly boundless. Moreover, Congress increasingly

by
means of broad stroke bills that cover many subject matters, the most notable of which
are omnibus appropriations bills or "Christmas tree" bills. 87 One might reasonably think,
therefore, that the nearly boundless regulatory space in which Congress operates prevents
members of Congress and their staffs from meaningfully considering the potential
consequences of statutory severability clauses. Accordingly, one could conclude that
courts should often look past statutory severability clauses to search for Congress' true
legislative intent-that is, what Congress would have intended had Congress actually
reflected on the particular situation confronting a court.
Administrative agencies are different. Agency staff tend to be more expert in their
subject matter because the agency makes rules in a smaller regulatory space and at a finer
grain of detail than Congress. Indeed, in the modern administrative state, Congress often
regulates a sector by expressing the desire that certain ends be achieved and instructing
agencies to promulgate rules in furtherance of those ends. 88 To be sure, members of
Congress do employ legislative staffers with technocratic expertise, particularly in the
subject matter of committees on which the members sit. But while someone could
reasonably argue that Congressional staffers have just as much subject matter expertise as
agency staff, Congress must review and vote on matters in all areas of federal regulatory
power.
Fourth, the Nourse-Schacter and Gluck-Bressman surveys have shed new light on the
variability, complexity, and polycentricity of statutory drafting in Congress. Statutes are
regularly the result of many legislative bargains, drafted by multiple committees, over
multiple iterations. Barbara Sinclair calls this "unorthodox lawmaking" because it departs
so dramatically from the accepted picture of lawmaking that Mrs. McGillicutty taught in
eighth grade civics. 89 In their study of staffers on the Senate Judiciary Committee, for
example, Nourse and Schacter found broad consensus on the proposition that "[t]he
[legislative] drafting process . . . is better understood as multiple drafting processes,
varying along many axes." 90 This is the point of the aphorism that Congress is a "they,"
and not an "it." 91 Nourse and Schacter continue:
[R]esponsibility for drafting a bill often is diffused among many people
and groups, chief among them staffers from different offices, Legislative
Counsel drafters, and lobbyists. This dispersal of responsibility makes it
87
National Federation of Independent Businesses, 132 S. Ct. at 2675 (Scalia, J ., dissenting).
88
See, e.g., Dodd-Frank Act, Section 1088 (directing the SEC and CFTC to promulgate rules requiring
entities subject to their authority to address identity theft);
89
See generally BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE
U.S. CONGRESS (4th ed. 2012).
90
Nourse & Schacter, supra note_, at 583 (emphasis in original).
91
See Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L
REV. L. & ECON. 239, 239 (1992);
[I 2/13/13 DRAFT]
ADMJNJSTRA TIVE SEVERABILITY CLAUSES
25
problematic for a court to try to isolate any single moment, actor, or event
that decisively conferred meaning on a contested provision. 92
Moreover, respondents in Gluck and Bressman's study emphasized that committees often
operate as drafting "islands," unconnected from the business of the other committees. 93
Indeed, we speculate that poor communication between congressional committees
incentivizes the use of severability clauses because committees want to ensure that the
portions of bills they have drafted will remain in effect even if portions drafted by other
committees eventually fail. The upshot of "unorthodox lawmaking" for this Article is that
a severability clause inserted into the portion of a bill drafted by one committee may, in
the final text, cover other portions of the bill where the clause was unintended. Put
differently, Congress arguably has too many cooks in the kitchen for a severability clause
meaningfully to reflect the legislative will.
Not so for the administrative agencies. Rather than multiple committees working in
multiple drafting stages, agencies-including bipartisan, independent agencies-draft
rules by a single set of legislative drafters working in concert. 94 There is no such thing as
a "Christmas tree" rule. 95 When a single set of drafters compiles all of the provisions of a
rule, those drafters are more likely to consider the potential ramifications of a severability
clause pertaining to the provisions of that rule. Thus, administrative severability clauses
are more likely than statutory severability clauses to reflect the legislative bargain
between stakeholders.
The case for disregarding administrative severability clauses is based on an analogy
between the agencies and Congress. Whatever the merits of arguments discrediting
statutory severability clauses, this Part has argued that the analogy between the agencies
and Congress is inapt. Having debunked the major objection to deferring to
administrative severability clauses, the next Part makes the affirmative case for taking
them at face value.
Ill. COURTS SHOULD BE MORE DEFERENTIAL TO ADMINISTRATIVE

SEVERABILITY CLAUSES
Having debunked the idea that administrative severability clauses do not reflect the
legislative intent of the agencies, in this Part we make the affirmative case that courts
92
Nourse & Schacter, supra note _, at 618.
93
Gluck & Bressman, supra note_, at 31.
94
In conversation, Professor Abbe Gluck noted that the distinction between the drafting methods used in
Congress and those used in agencies might not be as stark in the context of negotiated rulemaking (socalled "neg reg"). We agree with this point. Still, even in the case of negotiated rulemaking, we think that
the agencies are far less likely than Congress to endorse a severability clause that covers aspects of a rule or
statute that it was not meant to cover.
95
Cf National Federation oflndependent Businesses, 132 S. Ct. at 2675 (Scalia, J., dissenting).
[12/13/13 DRAFT]
26
should defer to administrative severability clauses. Our argument proceeds in three

sections. In Section A, we outline the legal analysis that courts should undertake when
deciding how to remedy an invalid provision of an administrative rule. Generally
speaking, we contend that courts should sever the invalid provisions of rules containing
severability clauses and leave the remainder in tact. In Section B, we maintain that this is
what the the law on administrative severability clauses should be because courts promote
several important policy objectives by deferring to administrative severability clauses.
Finally, in Section C, we suggest that this is also arguably what several landmark
administrative law decisions already require (the D.C. Circuit's recent statements on the
subject notwithstanding), as the Chenery and Auer lines of cases support defererence to
A. The Appropriate Level of Deference to Administrative Severability Clauses
Courts typically pay attention to administrative severability clauses only after
invalidating a provision of a regulation. In the typical case, a court will have found that a
regulatory provision is unconstitutional, ultra vires, arbitration and capricious, or
othenvise invalid after a discontent stakeholder challenged the provision first in the
agency and then in court. Often the agency will have promulgated the text of the final
rule along with a general statement of purpose that responds to comments made after the
agency's notice of proposed rulemaking. The question, then, is how the court should
remedy the invalid provision when the rule contains a severability clause.
As argued in Part II, we think it is not very sensible to ask whether the agency would
have intended the court to leave the remainder in place when the rule contains a
severability clause, for the agency expressed its intentions explicitly. Like every other
issue of statutory and regulatory interpretation, cou1is should follow the clear meaning of
the text. But does this mean that once a court determines that an administrative
severability clause applies the court's remedial analysis is complete?
No. The reason is that courts must still determine whether the remainder itself
contains legal defects. If, after severing an invalid provision, the remainder of a rule
would itself be invalid, then the court must not enforce the remainder. Professor Michael
Dorf has called this the "taint problem" because when a court sets aside an invalid
provision, the remainder of the regulation may become "tainted" by another form of
illegality. 96
In the context of administrative law, for example, severance introduces new legal
defects when it renders a rule inconsistent with its general statement of purpose. 97 To
illustrate, consider the D.C. Circuit's decision in MD/DC/DE Broadcasters Association v.
F.C.C.. 98 In MD/DC/DE Broadcasters, the F.C.C. petitioned for rehearing after the CoUii
96
Dorf, supra note_, at 310-26.
97
For the purpose of determining whether a rule is arbitrary and capricious, courts are obliged to consider
an agency's reasoning only at the time the agency made its decision. See S.E.C. v. Chenery Corp. (Chenery
I), 318 U.S. 80,87-88 (1943).
98
253 F.3d 732 (D.C. Cir. 2001).
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ADMJNJSTRA TJVE SEVERABILITY CLAUSES
27
of Appeals invalidated in toto an unconstitutional agency decision. 99 In its petition for

rehearing, the F. C.C. asked the court to enforce the remaining parts of its decision. 100
Writing for the court, Judge Douglas Ginsburg observed that the F .C. C. had two goals in
rendering its decision and that the F.C.C. had explained how the parts of the decision
would work in concert to achieve those goals. 101 Accordingly, the court concluded that
severing the invalid part of the decision "would leave in force a rule that, in view of the
Commission's own stated goals, would be arbitrary and capricious." 102 The majority
plainly thought they had confronted a taint problem. After setting aside the
unconstitutional part of the F.C.C.'s decision, the remainder became, in the majority's
view, arbitrary and capricious. Thus, the court set aside the entire decision.
Even ifthe rule that an agency originally pro'mulgated would not have been arbitrary
and capricious, courts should raise sua sponte the legality of a remainder that has been
detached from its general statement of purpose and strike down additional provisions of
the remainder where appropriate. We call this "residual arbitrary and capricious review."
Residual arbitrary and capricious review makes room for one respect in which courts are
better positioned than agencies to make certain decisions. Specifically, while agencies
occupy the ex ante point of view when they promulgate severability clauses in their rules,
courts occupy the ex post point of view when they invalidate regulatory provisions.
Reviewing courts thus have more of a certain type of information than agenciesinformation about which provisions of a rule they have set aside and how the rule's
provisions have worked together in the past-and this information may enable comts to
make better decisions than the agencies made in their ex ante rulemakings. While
agencies tend to have greater expertise than courts about the workability of the various
provisions of their rules, 103 agencies may from time to time fail to foresee that a comt
would set aside fundamental parts of their rules.
Thus far, we have argued that courts must retain the authority to fix taint problems,
including conducting residual arbitrary and capricious review. But how should a court
deal with taint problems when it confronts them? A court should first determine whether
the legal infirmities that remain after the court has invalidated the challenged provision
can themselves be invalidated without causing additional taint problems. If the remaining
problems are extricable, then the court should generally exercise its equitable discretion
to invalidate the taint problems and enforce the remainder. This is, of course, a delicate
matter for the court's discretion, lest courts be accused of"rewriting" a regulation.
If the court cannot eventually rid the remainder of taint problems, the remedy should
depend on the type of legal defects tainting the remainder. On the one hand, neither
99
Jd at 733-34.
100
!d. at 736.
101
!d. at 736.
102
!d. at 736.
103
See infra notes_ and accompanying text.
[12/13/13 DRAFT]
28
courts nor agencies can fix rules tainted by an agency's violation of its congressional
mandate or the Constitution. Thus, remainders that are infected with inextricable
constitutional or ultra vires problems must be invalidated in toto. The only option is for a
comt to vacate the entire rule.
If, on the other hand, a court determines that the remainder is arbitrary and capricious,
then it should consider remanding the rule without vacating it. 104 The AP A requires that
courts "shall ... hold unlawful and set aside" agency actions that violate an agency's
substantive and procedural limitations and requirements. 105 Ordinarily, when courts
conclude that an agency action was unlawful they "set aside" the action by vacating it.
However, occasionally courts will remand an invalid rule to the agency without vacating
it. 106 Vacatur has the effect of nullifying the agency action and requiring the agency to
initiate new procedures. 107 Remand without vacatur, by contrast, leaves an agency action
in force but requires the agency to correct defects in the action. 108
Courts have used remand without vacatur in two sets of circumstances: (l) where the
court determines that the agency is likely to be able to cure its previous error and (2)
where the court determines that vacatur would have extremely disruptive consequences to
104
Remand without vacatur is sometimes referred to as "remand without reversal," see Frank H. Wu &
Denisha S. Williams, Remand Without Reversal: An Unfortunate Habit, 30 ENVTL. L. REP. 10,193, 10,193
(2000), or "remand without vacation," see Ronald M. Levin, "Vacation" at Sea: Judicial Remedies and
Equitable Discretion in Administrative Law, 53 DUKEL.J.291, 291 (2003).
105
5 u.s.c. 706(2) (2006).
106
See Stephanie J. Tatham, The Unusual Remedy of Remand Without Vacatur, Final Report to the
Administrative Conference of the United States 54-58 (November 14, 2013) (collecting 73 cases between
I 972 and 2013); see also S.E.C. v. Chenery Corp. (Chenery I), 318 U.S. 80, 95 (I 943); Motor Vehicles
Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (directing the court of
appeals to remand the matter to the agency for further consideration).
107
See Checkosky v. S.E.C., 22 F.3d 452, 465 (D.C. Cir. 1994) (Silberman, J., concurring) ("[Vacatur
requires] the agency to initiate another rulemaking proceeding as if it would seek to confront the problem
anew.") (internal quotation omitted)).
108
The legality of remand without vacatur is somewhat controversial in the D.C. Circuit. The Circuit
seemed firmly to approve the practice in Checkosky v. S.E.C., 23 F.3d 452 (D.C. Cir. 2004), but members
of the court continue to claim that it is illegal. See, e.g., id. at 490 (Randolph, J., dissenting) (arguing that
remand without vacatur is prohibited by 706(2)(A) of the AP A, which provides that a reviewing court
'shall' set aside unlawful agency action); Milk Train, Inc. v. Veneman, 310 F.3d 747, 758 (D.C. Cir. 2002)
(Sentelle, J., dissenting) ("Although I greatly respect the majority's attempt to save a well-intended relief
program from possibly inefficient further proceedings, I do not think we can lawfully do so."). Daniel
Rodriguez argues that courts should use RWV only sparingly because the remedy encourages courts to
exercise more sweeping review of agency actions than they should. Daniel B. Rodriguez, Of Gift Horses
and Great Expectations: Remands Without Vacatur in Administrative Law, 36 ARIZ. ST. L.J. 599, 601
(2004). Levin, on the other hand, argues the RWV is a way of striking a balance between agency discretion
and court review. Levin, supra note_, at 361. Although they have not issued a final recommendation, the
Administrative Conference of the United States seems poised to endorse remand without vacatur as both
legal and advisable in certain circumstances. See Administrative Conference of the United States, Draft
Recommendation-Remand Without Vacatur (Oct. II, 2013).
[12/13/13 DRAFT]
29
a particular regulatory regime. 109 We suggest that remand without vacatur is the
appropriate remedy for rules containing severability clauses where a courts' invalidating
an unlawful provision has caused the remainder to be tainted by arbitrariness or
capriciousness. Since the agency usually will not have promulgated an initial rule that
was arbitrary and capricious, the agency is likely able to cure the taint problem that the
court has subsequently caused. Indeed, Judge Silberman's opinion in Checkosky, in
which the court remanded an agency rule without vacating it, could easily have been
written about severability analysis:
[Remand without vacatur allows] courts to [avoid] decid[ing] that .the
agency's action is either unlawful or lawful on the first pass . . .
[especially in cases where] the judges are unsure as to the answer because
they are not confident that they have discerned the agency's full
rationale. 110
One D.C. Circuit opinion has already suggested this approach to severability clauses.
In Alliance for Community Media, the court wrote:
[W]here an agency is involved, a court need not strike down a regulation
to effect a reconsideration by the issuing body. Thus, a court will issue a
remand to the issuing agency if there is 'substantial doubt' as to whether
the agency intended its regulation to be severable. Such a remand is often
in the best interest of justice in that it allows the agency to reconsider the
residue of its original regulation and keeps judges out of the business of
administrators. 111
Well put. Unfortunately, no subsequent cases have cited Alliance for Community Media
for the proposition that remand without vacatur is the appropriate remedy in these
circumstances, nor have we found other cases articulating it. We do, however, agree with
the Alliance for Community Media approach. When judges make a determination that the
remainder of a regulation is arbitrary and capricious, they should remand the rule to the
agency so that the agency can give its judgment on whether the rule should remain in
effect and provide factual findings that would support it.
The foregoing explains how we think courts should treat administrative severability
clauses and the remainders of rules containing severability clauses. In general, courts
should defer to a severability clause unless deferring inextricably involves endorsing a
taint problem. If the taint problem is constitutional or ultra vires in nature, the court
should strike the regulation down in toto. If, however, the taint problem merely renders
the rule arbitrary and capricious, then the court should remand the rule back to the agency
without vacating it. We now proceed to explain that this is both what the law on
109
11
See Allied-Signal, Inc. v. NRC, 988 F.2d 146, 151-52 (D.C. Cir. 1993); Levin, supra note_, at 380.
Checkosky v. S.E.C., 23 F.3d 452,462 (D.C. Cir. 1994).
111
Alliance for Community Media v. F.C.C., 10 F.3d 812,830 (1993).
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30
administrative severability clauses should be and, arguably, what several of the Supreme
Court's administrative law decisions already require.
B. Deference To Administrative Severability Clauses Is Good Policy
Our thesis is that, barring taint problems, courts should defer to administrative
severability clauses. By deferring, courts advance several important policy objectives
including encouraging accountability, taking advantage of administrative expertise,
promoting clarity and predictability in the law, and encouraging beneficial regulation.
Deferring to administrative severability clauses promotes political accountability
because it permits a less "dangerous branch" to make the severability decision. 112
Agencies are more directly accountable (though still not immediately accountable) to the
people than the courts. 113 Thus, in Chevron, the Court wrote:
Courts must, in some cases, reconcile competing political interests, but not
on the basis of the judges' personal policy preferences. In contrast, an
agency to which Congress has delegated policy-making responsibilities
may, within the limits ofthat delegation, properly rely upon the incumbent
administration's views of wise policy to inform its judgments. While
agencies are not directly accountable to the people, the Chief Executive is,
and it is entirely appropriate for this polical branch of the Government to
make such policy choices. 114
Unlike federal judges, who enjoy life tenure and undiminished pay, administrative
agencies work at the behest of the President, who must ultimately answer to the voters.
Deference to administrative severability clauses thus furthers accountability to the voters.
Administrative severability clauses take better advantage of administratrive expertise
because they put the severability decision in the hands of the more expert branch. 115 As
noted, one element of the severability analysis is whether the remainder of a regulation is
workable in the absence of an invalid provision. But this inquiry usurps decisionmaking
responsibilitY from the body that will generally be the most knowledgable about what is
and is not workable-the agency. By disregarding severability clauses, courts substitute
their legislative judgments for the legislative judgments of the expert agency. 116
112
See generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE
BAR OF POLITICS (1986).
113
See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2373-74 (2001); Cass R.
Sun stein, Lcnv and Administration After Chevron, 90 COLUM. L. REv. 2071, 2086-87 (1990).
114
See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-66 (1984).
115
See Chevron, 467 U.S. at 865-66; Kagan, supra note_, at 2373-74; Sunstein, supra note_, at 2086-
87.
116
See Motor Vehicles Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971 ); David H. Gans, Severability as
[12/13/13 DRAFT]
31
Contrariwise, by deferring to administrative severability clauses, courts confine their

review to traditional judicial tasks-e.g., evaluating whether agency actions are
unconstitutional, ultra vires, arbitrary and capricious, or otherwise unlawful.
Administrative severability clauses may also reduce agency "ossification." For some
time now, commentators and policymakers have worried that judicial challenges to
administrative rules and extensive procedures imposed on the rulemaking process have
"ossified" the agencies. 117 In our view, these same commentators should favor judicial
deference to administrative severability clauses because such deference would make it
less likely that a court would invalidate in toto an agency's rules against the agency's
wishes. The courts could thus help to deossify the rulemaking process by making it less
costly for the agency to undertake major rulemakings. 118
Finally, by deferring to administrative severability clauses, courts promote clarity and
predicability in the law. As noted in Part I, administrative severability clauses help make
regulatees' future legal obligations more predictable because they help regulatees
determine the likely consequences of a court finding a particular regulatory provision
invalid and they help regulatees to forecast the agency's likely response in the future. 119
Our critics will likely point out the irony in advocating a change in the law as a way
of promoting clarity, stability, and predictability. Agencies currently create rules against a
judicial background in which administrative severability clauses have little to no effect on
the outcomes of cases. 120 Just as the Supreme Court gives super-strong stare decisis to
decisions involving statutory interpretation so as to provide Congress with a stable body
of statutory interpretations against which to legislative,m one might think that courts
Judicial Lawmaking, 76 GEO. WASH. L. REv. 639, 643 (2008) (arguing that severance often "enmesh[es]
the judiciary in policy choices that are better left to the legislative branch.").
117
See, e.g., Thomas 0. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE
L.J. 1385, 1385 (1992) (citing E. Donald Elliott, Remarks at the Symposium on "Assessing the
Environmental Protection Agency After Twenty Years: Law, Policy, and Economics," at Duke University
School of Law (Nov. 15, 1990); Gans, supra note_, at 654 (arguing that severability can "help[] avoid a
chilling effect on legislative action"); Thomas 0. McGarity, The Courts and the Ossification of
Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REv. 525, 528-36 (1997); Mark Seidenfeld,
Demystifying Deossification: Rethinking Recent Proposals to Modify JudiCial Review of Notice and
Comment Rulemaking, 47 ADMIN. L. REv. 59, 60-62 (1995);
118
We do not mean to suggest, of course, that more regulation is always a good thing. Our point is that if
agencies think that regulation in a particular space would be beneficial, they should be allowed to regulate
either comprehensibly or piece-by-piece.
119
See supra notes_ and accompanying text.
120
See Nagle, supra note_, at 245; see generally John F. Manning, Continuity and the Legislative Design,
79 NOTRE DAMEL. REV. 1863, 1864-65 {2004).
121
See William N. Eskridge, Jr., The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis
for Statut01y Cases, 88 MICH. L. REV. 2450 (1990); William N. Eskridge, Jr., Overruling Statut01y
Precedents, 76 GEO. L.J. 1361 (1988).
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ADMINISTRA TJVE SEVERABILITY CLAUSES
32
should not change their approach to administrative severability clauses. Perhaps then
courts should not defer to administrative severability clauses because this doctrinal shift
would thwart the agencies' reliance on the irrelevance of severability clauses.
This argument depends, of course, on the claim that legislative drafters actually rely
on the courts' interpretative practice. Recent empirical work, however, casts doubt on this
claim, at least in the context of statutory interpretation. Both the Nourse-Schacter and
Gluck-Bressman studies concluded that there are many canons of interpretation of which
congressional legislative staffers are unaware. 122
Similarly, there are reasons to doubt that agencies actually rely on the courts' practice
of largely ignoring severability clauses. We have not found any cases in which an agency
asked a court to disregard a severability clause. If agencies actually relied on the courts'
dismissive treatment of severability clauses, one would expect that agencies would
sometimes argue in court that they should not be bound by those clauses. To be sure, this
may be because agencies do not have to tell courts to disregard severability clauses. Still,
we would have expected to have seen at least one agency brief asking a cou1t to disregard
a severability clause if it was indeed the case that agencies rely on the courts' practice of
disregarding them. Further, several agencies' explanations of their own rules undermine
the claim that agencies rely on the irrelevance of severability clauses. Thus, the Federal
Trade Commission remarked in the statement of purpose of one of its rules:
[T]he Commission adds a new Part 604 and 604.1 containing a
severability provision similar to that in other recent Commission rules ....
This provision will ensure the effectiveness of all the Commission's FCRA
rules, in the event that any rule (or any provision of any rule) is declared
invalid by a court. 123
Even if agencies do currently rely on the courts' practice of largely disregarding

administrative severabilty clauses, we think that severability -doctrine is an exception to
the prudential rule that it is better for the doctrine to be settled than for it to be settled
right. 124 For adhering to the current doctrine has its own uncertainty costs. As theSupreme Court has explained, "[w ]hat is of paramount importance [in statutory
122
See Gluck & Bressman, supra note_, at_; Nourse & Schacter, supra note_, at 600-02. For other
accounts that question the presumption that Congress knows the canons and other principles of judicial
interpretation of statutes, see Robert A. Katzmann, Bridging the Statut01y Gulf Between Courts and
Congress: A Challenge for Positive Political The01y, 80 GEO. L.J. 653, 662-65 (1992); Abner J. Mivka,
Reading and Writing Statutes, 48 U. PI1T. L. REv. 627, 629-31 (1987).
123
FTC Amendment of Rules Under the FACT Act, 69 Fed. Reg. 29061-01 (May 20, 2004) (codified at 16
C.P.R. Parts 602, 603, 604, and 611) (emphasis added); see also Department of Agriculture, Special Areas;
State Petitions for Inventoried Roadless Area Management, 70 Fed. Reg. 25654-01 (May 13, 2005) ("The
Department has chosen to add a new section concerning the issue of severability to address the possibiltiy
that the rule, or portions of the rule, may be challenged in litigation."); but see Rule of National Indian
Gaming Commission, 77 Fed. Reg. 58707, 58709 (Sept. 21, 2012) (to be codified at 25 C.P.R. pt. 543)
("[S]everability clauses are not conclusive of an agency's intent.").
124
See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-08 (1932) (Brandeis, J., dissenting).
[12/13/13 DRAFT]
33
construction] is that Congress be able to legislate against a background of clear

interpretive rules so that it may know the effect of the language it adopts." 125 But
deferring to administrative severability clauses returns the control to the agencies,
allowing them to better predict "the effect of the language [they] adopt[]." 126 While
changing the doctrine would disrupt the judicial background against which the agencies
currently legislate, the change would ultimately give the agencies more control over the
consequences of their rules. The net effect, we think, would be to increase the certainty
with which agencies can regulate.
C. Current Law Requires Deference to Administrative Severability Clauses
In the previous Section, we explained that, as a matter of policy, the law should
require courts to defer to administrative severability clauses. In this section, we suggest
that the law arguably already requires courts to defer to administrative severability
clauses because both the Chenery II and Auer I Seminole Rock lines of cases entail that
result.
I. Chenery: The "Informed Discretion" ofAgencies
The first legal route to judicial deference to administrative severability clauses is the
Supreme Court's landmark decision in S.E.C. v. Chenery Corp. (Chenery 1[). 127 In an
administrative adjudication, the S.E.C. had disapproved of a corporate reorganization
plan that would have permitted the officers of an existing company to buy preferred stock
in the new company. In the opinion of the agency, the reorganization plan would give the
officers a windfall at the expense of the regular shareholders in violation of the language,
purpose, and legislative history of the Securities Act. 128 The officers challenged the
S.E.C.'s decision on the ground that the agency must use rulemakings, rather than
adjudication, to announce new policy. 129 The Court held that the agency was free, in its
"informed discretion," 130 to choose either rules or orders to announce new policy.
Chenery II, of course, has been supplanted by more recent cases. 131 And Chenery II
itself only dealt with an agency's choice between making policy through rule or order.
125
Finley v. United States, 109 S. Ct. 2003,2010 (1989).
126
See Nagle, supra note_, at 245-46.
127
332 u.s. 194 (1947).
128
Id at_. In Chenery I, the S.E.C. had maintained that the reorganization plan violated common law
fiduciary obligations that the corporate officers owed to the regular shareholders. The Supreme Court,
however, held that the S.E.C. had misunderstood the judicial opinions on which its decision rested and thus
remanded to the agency for further proceedings. S.E. C. v. Chenery, 318 U.S. 80 (1943).
129
13
Chenery II, 332 U.S. at_.
Chenery II, 332 U.S. 203.
131
See N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974).
[12/13/13 DRAFT]
34
Chenery II, however, more broadly stands for the proposition that courts should give
agencies flexibility in how they choose to make policy. 132 When a court invalidates a
provision of an administrative rule, it must decide whether to enforce the remainder of
the rule. In these cases, the agency could promulgate each of the remaining provisions of
the original rule as a group of separate and distinct rules. Further, the agency may
promulgate a rule at and then, after the court invalidates the rule at t2 , repromulgate the
valid portions of the original rule at t3 One way of framing the severability question,
then, is whether the agency may in its "informed discretion" promulgate in one step what
no one denies that it can promulgate in two. We see no reason to think not. Agencies are
aware of the risk that a court may set aside portions of their rules. They must, therefore,
have reasons for promulgating those provisions as a single package together with a
severability clause. By our lights, it should be totally up to the agencies, in their informed
discretion, whether they wish to take that risk, just as it is totally up to the agencies how
they wish to announce new policy.
2. Auer: Severability Clauses As Interpretations ofAgency Rules
The second legal route to judicial deference to administrative severability clauses is
the Supreme Court's Auer I Seminole Rock line of cases. 133 Under Auer, courts give what
essentially amounts to Chevron deference to an agency's interpretation of its own rules. 134
Courts will follow the agency's interpretation of its own rules unless that interpretation is
"plainly erroneous or inconsistent with the regulation." 135 If administrative severability
clauses can be thought of as interpretations of the rules in which they appear, then Auer
provides another reason to think that courts should defer to those clauses. Just as Auer
instructs courts to follow an agency's reasonable interpretation of its own rules unless
they are inconsistent with the rule or clearly erroneous, we think that courts should follow
reasonable administrative severability clauses unless they are tainted by additional legal
infirmities.
One difficulty with this reading of Auer is that federal courts have never held that
severability clauses contained in agency rules are interpretations of those rules. Many
commentators, however, have thought that severability generally presents a question of
statutory interpretation. 136 In the absence of a severability clause, courts that invalidate a
132
SeeM. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REv. 1383, 1410-11
(2004).
133
See Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock Co., 325 U.S. 410 (1945).
134
See Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, _

concurring in part and dissenting in part).
135
136
(2013) (Scalia, J.,
Id at 465.
See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REv. 235, 289
(1994); Nagle, supra note_, at 232-56; Edward A. Hartnett, Modest Hope for a Modest Roberts Court:
Deference, Facial Challenges, and the Comparative Competence of Courts, 59 SMU L. REv. 1735, 1752
(2007); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HAR.v. L.
REv. 1321, 1333-34 (2000); Gillian E. Metzger, Facial Challenges and Federalism, 105 COLUM. L. REV.
873, 928 (2005); Robert L. Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L.
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ADM!NISTRA T!VE SEVERABILITY CLAUSES
35
portion of a statute or regulation ask whether there is a way to construe the statute or
regulation so that its remaining provisions would continue to function sensibly. But if
severability is itself a question of statutory interpretation then surely severability clauses
are just a direction from Congress or the agencies on how to go about interpreting the
statute or rule. To be sure, on this view, severability clauses are parts of the same rules
that they interpret. But there is nothing mysterious about parts of a statutory or regulatory
text explaining how to interpret other parts of the text-the definitions at the beginning of
almost every federal statute do just that. 137 We thus think that A uer applies to
But even if Auer's Jetter does not support deference to administrative severability
clauses, Auer's spirit does. The Court has offered at least two justifications for its
continued adherence to the Auer doctrine. Each of these justifications also suggests
giving deference to administrative severability clauses.
First, some of the Court's cases maintain that agencies, as drafters of administrative
rules, have special insight into their intent when enacting those rules. 138 The same can
easily be said for administrative severability clauses. If the "touchstone" of severability
analysis is legislative intent, who better to determine the agency's legislative intent than
the very agency that promulgated the rule?
Second, some cases maintain that the courts should give agencies deference because
they possess special expertise in administering their '"complex and highly technical
regulatory program[s]."' 139 Again, as we argued in Section III.B, this rationale also
supports deference to administrative severability clauses. Agencies' special expertise in
regulating on their particular subject matter makes them better equipped than courts to
decide when a rule's remaining provisions will "function sensibly." Accordingly, courts
should defer to agencies' workability determinations.
We do not mean to place all of our eggs in Auer's basket, however, for Auer has
recently been criticized in the Supreme Court. 140 In his 2011 concurrence in Talk
but see David H. Gans, Severability as Judicial Lawmaking, 76 GEO. WASH. L. REV.
639, 643 (2008) ("The doctrine [of severability] does not call for an act of statutory interpretation.
Severance occurs in the remedial moment at the tail end of constitutional adjudication .... It asks a
remedial question about the scope of the relief a court should order, not an interpretative question about the
statute's meaning.").
REV. 76, 115 (1937);
137
See Nicholas Quinn Rosenkranz, Federal Rules of StatutOJy Interpretation, 115 HARV. L. REV. 2085,
2104 (2002).
138
See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150-53 (1991).
139
See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Pauley v. BethEnergy Mines,
Inc., 501 U.S. 680,697 (1991)).
140
In the 1990s, Seminole Rock was also attacked several times in dissent. First, in his dissent in Thomas
Jefferson University v. Shalala, 512 U.S. 504 (1994), Justice Thomas Gained by Justices Stevens,
O'Connor and Ginsburg) criticized Seminole Rock for 'disserv[ing] the very purpose behind the delegation
of lawmaking power to administrative agencies, which is to resolve ambiguity in the statutory text." Id at
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36
America, Inc. v. Michigan Bell Telephone Co., Justice Scalia-the author of the Court's
opinion in Auer!-noted that he had become "increasingly doubtful of [Auer's]
validity." 141 And this term in Decker v. Northwest Environmental Defense Center, Justice
Scalia for the first time expressly urged the Court to overrule Auer. 142 Moreover, though
the other Justices have not committed themselves to overturning Auer in the future, others
have signaled their willingness to reconsider it. For example, in the majority opinion in
Christopher v. SmithKline Beecham Corp. Qoined by Chief Justice Roberts and Justices
Scalia, Thomas, and Kennedy), Justice Alito tellingly cited Justice Scalia's concurrence
in Talk America. 143 And this term in Decker, Chief Justice Roberts wrote a separate
concurrence Qoined by Justice Alito) that gave a nod to Justice Scalia's partial dissent
calling for Auer to be overruled. Chief Justice Roberts wrote that Justice Scalia's opinion
"raise[d] serious questions about the [Seminole Rock I Auer] principle .... It may be
appropriate to reconsider that principle in an appropriate case. But this is not that case." 144
As the parties only mentioned the possibility of overruling Auer in several footnotes in
their briefs, Chief Justice Roberts preferred to wait for "a case in which the issue is
properly raised and argued." 145 Thus, court observers such as Johnathan Adler have begun
to wonder whether "a reconsideration of Auer is in the offing." 146
In light of the Justices' reservations about Auer, then, it would be short-sighted to rest
our argument on the vitality of that case. Almost paradoxically, however, not only do the
justifications for the Auer doctrine support deference to administrative severability
clauses, but so do the criticisms of it. Justice Scalia has made at least two related
criticisms of Auer deference, each of which supports deference to administrative
severability clauses.
First, Justice Scalia has criticized the notion of legislative intent underlying Auer
deference. As noted, one justification for Auer is that the agency is in a better position
than courts to determine what it intended when it promulgated a rule. But Justice Scalia,
textualist as he is, disdains such endeavors: "Whether governing rules are made by the
national legislature or an administrative agency, we are bound by what they say, not by
525 (Thomas, J., dissenting). Second, in her dissent in Shalala v. Guernsey Memorial Hospital, 514 U.S. 87
(1995), Justice O'Connor Qoined by Justices Scalia, Souter and Thomas) criticized the Secretary of Health
and Human Services for failing to specifY a policy in a regulation that had gone through notice and
comment. !d. at 110 (O'Connor, J., dissenting).
141
131 S. Ct. 2254, 2266 (20 11) (Scalia, J., concurring).
142
Decker v. Northwest Environmental Defense Center, 131 S. Ct. 1326, 1340 .(2013) (Scalia, J.,
concurring in part and dissenting in part).
143
132 S. Ct. 2156, _
144
133 S. Ct. at 1338 (Roberts, C.J., concurring).
145
/d. at 1339.
146
(2012).
Johnathan H. Adler, Auer Deference Still Up for Grabs?, THE VOLOKH CONSPIRACY (July 18,2012,
II :36 AM), http://www.volokh.com/20 12/06/18/auer-deference-still-up-for-grabs.
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ADMINISTRA Til-' SEVERABILITY CLAUSES
37
the unexpressed intention of those who made them." 147 If courts permit agencies to clarify
what they meant, but did not say, they risk inappropriately combining the executive and
legislative powers and thus contravening "fundamental principles of separation of
powers." 148 But this criticism, however powerful it may be in the context of ordinary Auer
deference, only strengthens the argument for deference to administrative severability
clauses, for those clauses are express, ex ante, textual provisions that give regulatees
notice of the agency's intentions. Severability clauses separate (rather than combine) the
agency's powers by committing the executive arm of the agency to the legislative arm's
position on severability.
Second, Justice Scalia worries thatAuer deference encourages agencies to promulgate
vague rules through notice and comment and then to clarify them later through less
formal and less representative means, such as guidance manuals, litigation briefs, and
notice letters. 149 Unlike these informal expressions of the agency's will, however,
agencies promulgate severability clauses simultaneously with and through the same
APA-created procedures as the text of their rules. Thus, this criticism of Auer deference
also supports deference to severability clauses.
The deep principles of constitutional and administrative law underlying the Chenery
II and Auer decisions support deference to administrative severability clauses. We
therefore think that on the best reading of current law courts should already be obliged to
defer to those clauses.
IV. CONCLUSION
Relying on the dubious analogy between the legislative competence of Congress and
the agencies, courts, commentators, and the agencies themselves have given short shrift
to administrative severability clauses. Agencies have been content to delegate and courts
have been content to accept the power to determine ex post the workability of a
regulatory remainder. This is a shame, for administrative severability clauses could make
possible a more stable, well-reasoned, and politically accountable set of laws. Instead,
agencies should be more willing to add severability clauses to their rules and courts
should be more willing to defer to them.
147
Decker v. Northwest Environmental Defense Center, 131 S. Ct. 1326, 1340 (2013) (Scalia, J.,
concurring in part and dissenting in part) (emphasis in original).
148
131 S. Ct. at 2266 (Scalia, J., concurring) (citing John Manning, Constitutional Structure and Judicial
Deference to Agency Interpretations ofAgency Rules, 96 COLUM. L. REv. 612 (1996)).
149
Jd.
FEDERAL REGISTER
Vol. 77
Thursday,
No. 3
January 5, 2012
Environmental Protection Agency

40 CFR Part 63
National Emissions Standards for Hazardous Air Pollutants From
Secondary Lead Smelting; Final Rules
556
Federal Register/Val. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2011-<1344; FRL-961 Q-9}

RIN 206Q-AQ68
National Emissions Standards for
Hazardous Air Pollutants From
Secondary Lead Smelting
AGENCY: Environmental Protection

Agency (EPA).
ACTION: Final rule.
SUMMARY: This action finalizes the
residual risk and technology review
conducted for the secondary lead
smelting source category regulated
under national emission standards for
hazardous air pollutants. These final
amendments include revisions to the
emissions limits for lead compounds;
revisions to the standards for fugitive
emissions; the addition of total
hydrocarbon and dioxin and furan
emissions limits for reverberatory and
electric furnaces; the addition of a work
practice standard for mercury
emissions; the modification and
addition of testing and monitoring,
recordkeeping, and reporting
requirements; related notifications; and
revisions to the regulatory provisions
related to emissions during periods of

startup, shutdown, and malfunction.
DATES: This final action is effective on
January 5, 2012. The incorporation by
reference of certain publications listed
in the rule is approved by the Director
of the Federal Register as ofJanuary 5,
2012.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA-HQ-OAR-2011-0344. All
documents in the docket are listed on
the http://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., confidential business information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet, and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
http://www.regulations.gov, or in hard
copy at the EPA Docket Center, EPA
West Building, Room Number 3334,
1301 Constitution Ave. NW.,
Washington, DC. The Public Reading
Room hours of operation are 8:30 a.m.
to 4:30p.m. Eastern Standard Time
(EST), Monday through Friday. The
telephone number for the Public
Reading Room is (202) 566-1744, and
the telephone number for the Air and

Radiation Docket and Information
Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For
questions about this final action, contact
Mr. Nathan Topham, Office o'f Air
Quality Planning and Standards, Sector
Policies and Programs Division, U.S.
Environmental Protection Agency,
Research Triangle Park, NC 27711;
telephone number: (919) 541-0483; fax
number: (919) 541-3207; and email
address: topham.nathan@epa.gov. For
additional contact information, see the
following SUPPLEMENTARY INFORMATION
section.
SUPPLEMENTARY INFORMATION: For
specific information regarding the risk
assessment and exposure modeling
methodology, contact Dr. Michael
Stewart, Office of Air Quality Planning
and Standards, Health and
Environmental Impacts Division, Air
Taxies Assessment Group (C504-06),
U.S. Environmental Protection Agency,
Research Triangle Park, NC 2 7711;
telephone number: (919) 541-7524; fax
number: (919) 541-0840; and email
address: stewart.michael@epa.gov. For
information about the applicability of
this NESHAP to a particular entity,
contact the appropriate person listed in
Table 1 to this preamble.
TABLE 1-LIST OF EPA CONTACTS FOR THE NESHAP ADDRESSED IN THIS ACTION
NESHAP for
OECA contact
OAQPS contactb
Maria Malave, (202) 564-7027, Nathan Topham,

ma/ave.maria@ epa.gov.
0483,
(919)
541-
topham.nathan @epa.gov.
EPA's Office of Enforcement and Compliance Assurance.

bEPA's Office of Air Quality Planning and Standards.
NTTAA National Technology Transfer and
Acronyms and Abbreviations. The
Advancement Act
following acronyms and abbreviations
OP Office of Policy
are used in this document.
ppbv parts per billion by volume
CAA Clean Air Act
ppbw parts per billion by weight
CBI confidential business information
ppmv parts per million by volume
CDX Central Data Exchange
ppmw parts per million by weight
GEMS continuous emission monitoring
REL recommended exposure limit
system
. RFA Regulatory Flexibility Act
CPMS continuous parameter monitoring
RIA Regulatory Impact Analysis
system
RIN Regulatory Information Number
DIF dioxins and furans
RTR Risk and Technology Review
ERT Electronic Reporting Tool
SRF short rotary furnace
HAP hazardous air pollutants
TEF toxic equivalency factor
HQ hazard quotient
TEQ toxic equivalency quotient
ICR information collection request
THC total hydrocarbons
lbs/yr pounds per year
TTN Technology Transfer Network
MACT maximum achievable control
UMRA Unfunded Mandates Reform Act
technology
UPL upper prediction limit
MIR maximum individual risk
WWW World Wide Web
NAAQS National Ambient Air Quality
Standards
Background Information Document.
NESHAP National Emission Standards for
On May 19, 2011 (76 FR 29032), the
Hazardous Air Pollutants
ng/dscm nanograms per dry standard cubic EPA proposed revisions to the
Secondary Lead Smelting NESHAP
meter
based on evaluations performed by the

EPA in order to conduct our risk and
technology review. In this action, we are
finalizing decisions and revisions for
the rule. Some of the significant
comments and our responses are
summarized in this preamble. A
summary of the public comments on the
proposal not presented in the preamble,
and the EPA's responses to those
comments, is available in Docket ID No.
EPA-HQ-OAR-2011-0344. A tracked
changes version of the regulatory
language that incorporates the changes
in this action is available in the docket.
Organization of This Document. The
following outline is provided to aid in
locating information in the preamble.
I. General Information
A. Does tills action apply to me?
B. What is the affected source?
C. Where can I get a copy of this
document?
D. Judicial Review
II. Background
III. Summary of the Final Rule
A. What are the final rule amendments for
the Secondary Lead Smelting source
category?
B. What are the effective and compliance
dates ofthe standards?
C. What are the requirements for
submission of performance test data to
the EPA?
IV. Summary of Significant Changes Since
Proposal
A. Changes to the Risk Assessment
Performed Under CAA Section 112(f)
B. Changes to the Technology Review
Performed Under CAA Section 112(d](6)
C. Other Changes Since Proposal
V. Summary of Significant Comments and
Responses
A. Use of Lead Primary NAAQS as a
Measure of Acceptability of Risk for
Public Health
B. Total Enclosure Requirements
C. Work Practice Standard Requirements
D. Emission Standards for Organic HAP
From Rotary Furnaces
E. The EPA's Risk Assessment Supporting
the Proposed Rule
F. Miscellaneous Changes to the Regulatory
Text
G. Emission Testing Methods and
Frequency
H. Startup, Shutdown, and Malfunction
VI. Summary of Cost, Environmental, and
Economic Impacts
A. What are the affected facilities?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What are the benefits?
VII. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory
Planning and Review, and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
A. Does this action apply to me?
Regulated Entities. Categories and

entities potentially regulated by this
action are shown: in Table 2 of this
preamble.
557
. TABLE 2-NESHAP AND INDUSTRIAL becomes a reconstructed source and is

SOURCE CATEGORIES AFFECTED BY subject to the relevant standards for a
new affected source. The reconstructed
THIS FINAL ACTION
source must comply with the
NESHAP and source
NAICSa
MACTb requirements for a new affected source
category
Code
Code
upon initial startup of the reconstructed
source, or by March 5, 2012, whichever
Secondary Lead
is later.
Smelting ................
331492
0205
C. Where can I get a copy of this
a North American
Industry Classification document?
System.
b Maximum Achievable Control Technology.
In addition to being available in the
docket, an electronic copy of this final
Table 2 of this preamble is not
action will also be available on the
intended to be exhaustive, but rather
World Wide Web through the
provides a guide for readers regarding
Technology Transfer Network (TTN).
entities likely to be affected by the final
Following signature, a copy of the final
action for the source category listed. To
action will be posted on the TTN's
determine whether your facility would
policy and guidance page for newly
be affected, you should examine the
proposed and promulgated rules at the
applicability criteria in the appropriate
following address: http://www.epa.gov/
NESHAP. As defined in the source
ttn/caaa/new.html. The TTN provides
category listing report published by the
and t.echnology exchange in
EPA in 1992, the Secondary Lead
varwus areas of atr pollution control.
Smelting source category is defined as
Additional information is available on
any facility at which lead-bearing scrap
the residual risk and technology review
materials (including, but not limited to
(RTR) web page at http://www.epa.gov/
lead acid batteries) are recycled by
ttn/atw/rrisk/rtrpg.html. This
smelting into elemental lead or lead
includes source category
alloys.J. For clarification purposes, all
descnptwns and detailed emissions and
reference to lead emissions in this
other data that were used as inputs to
preamble means "lead compounds"
(which is a hazardous air pollutant) and the risk assessments.
all reference to lead production means
D. Judicial Review
elemental lead (which is not a
L!nder CAA section 307(b)(1), judicial
hazardous air pollutant) as provided
review of this final action is available
under CAA section 112(b)(7).
only by filing a petition for review in
If you
questions regarding
the United States Court of Appeals for
the apphcabthty of any aspect of this
the District of Columbia Circuit by
NESHAP, please contact the appropriate
March 5, 2012. Under CAA section
person listed in Table 1 of this preamble
307(b)(2), the requirements established
in the preceding FOR FURTHER
by this final rule may not be challenged
INFORMATION CONTACT section.
separately in any civil or criminal
B. What is the affected source?
proceedings brought by the EPA to
enforce the requirements.
The final rule applies to owners and
Section 307[d)(7)(B) of the CAA
operators of secondary lead smelters.
further provides that "[o]nly an
The affected source for this subpart is
objection to a rule or procedure which
any of the following sources at a
was raised with reasonable specificity
secondary lead smelter: Blast,
during the period for public comment
reverberatory, rotary, and electric
any public hearing) may be
furnaces; refining kettles; agglomerating
ratsed during judicial review." This
furnaces; dryers; process fugitive
emissions sources; buildings containing section also provides a mechanism for
lead bearing materials; and fugitive dust us to convene a proceeding for
reconsideration, "[i]f the person raising
sources. A new affected source is any
an objection can demonstrate to the EPA
affected source at a secondary lead
that it was impracticable to raise such
smelting facility of which the
objection within [the period for public
construction or reconstruction
comment] or if the grounds for such
commenced after May 19, 2011. If
objection arose after the period for
components of an existing affected
public comment (but within the time
source are replaced such that the
specified for judicial review) and if such
replacement meets the definition of
objection is of central relevance to the
reconstruction in 40 CFR 63.2 and the
outcome of the rule." Any person
reconstruction commenced on or after
seeking to make such a demonstration to
May 19, 2011, then the existing source
us should submit a Petition for
Reconsideration to the Office of the
:
A. Documentation for Developing the
Administrator, U.S. EPA, Room 3000,
lmhal Source Category List-Final Report, USEPA/
OAQPS, EPA-450/3-91-030, july, 1992.
Ariel Rios Building, 1200 Pennsylvania
558
Federal Register /Vol. 77, No. 3 I Thursday, January 5, 2012 /Rules and Regulations
Ave. NW., Washington, DC 20460, with

a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION
CONTACT section, and the Associate
General Counsel for the Air and
Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA,
1200 Pennsylvania Ave. NW.,
Washington, DC 20460.
II. Background
Section 112 of the CAA establishes a
two-stage regulatory process to address
emissions of hazardous air pollutants
(HAP) from stationary sources. In the
first stage, after the EPA has identified
categories of sources emitting one or
more of the HAP listed in CAA section
112(b), section 112(d) calls for us to
promulgate NESHAP for those sources.
"Major sources" are those that emit, or
have the potential to emit, any single
HAP at a rate of 10 tons per year (tpy)
or more, or 25 tpy or more of any
combination of HAP. For major sources,
these technology-based standards must
reflect the maximum degree of emission
reductions of HAP achievable (after
considering cost, energy requirements,
and non-air quality health and
environmental impacts) and are
commonly referred to as maximum
achievable control technology (MACT)
standards.
For MACT standards, the statute
specifies certain minimum stringency
requirements, which are referred to as
floor requirements and may not be
based on cost considerations. See CAA
section 112(d)(3). For new sources, the
MACT floor cannot be less stringent
than the emission control that is
achieved in practice by the best
controlled similar source. The MACT
standards for existing sources can be
less stringent than floors for new
sources, but they cannot be less
stringent than the average emission
limitation achieved by the bestperforming 12 percent of existing
sources in the category or subcategory
(or the best-performing five sources for
categories or subcategories with fewer
than 30 sources). In developing MACT,
we must also consider control options
that are more stringent than the floor,
under CAA section 112(d)(2). We may
establish standards more stringent than
the floor, based on the consideration of
the cost of achieving the emissions
reductions, any non-air quality health
and environmental impacts, and energy
requirements. In promulgating MACT
standards', CAA section 112(d)(2) directs
us to consider the application of
measures, processes, methods, systems,
or techniques that reduce the volume of
or eliminate HAP emissions through
process changes, substitution of
materials, or other modifications;

enclose systems or processes to
eliminate emissions; collect, capture, or
treat HAP when released from a process,
stack, storage, or fugitive emissions
point; and/or are design, equipment,
work practice, or operational standards.
In the second stage of the regulatory
process, we undertake two different
analyses, as required by the CAA:
section 112(d)(6) of the CAA calls for us
to review these technology-based
standards and to revise them "as
necessary (taking into account
developments in practices, processes,
and control technologies)" no less
frequently than every 8 years; and
within 8 years after promulgation ofthe
technology standards, CAA section
112(f) calls for us to evaluate the risk to
public health remaining after
application of the technology-based
standards and to revise the standards, if
necessary, to provide an ample margin
of safety to protect public health or to
prevent, taking into consideration costs,
energy, safety, and other relevant
factors, an adverse environmental effect.
In doing so, the EPA may adopt
standards equal to existing MACT
standards if the EPA determines that the
existing standards are sufficiently
protective. NRDCv. EPA, 529 F.3d
1077, 1083 (DC <:::ir. 2008).
On May 19, 2011, the EPA published
a proposed rule in the Federal Register
for the Secondary Lead Smelting
NESHAP, 40 CFR part 63, subpart X that
took into consideration the residual risk
and technology review (RTR) analyses.
Today's action provides the EPA's final
determinations pursuant to the RTR
provisions of CAA section 112 for the
Secondary Lead Smelting source
category, and also promulgates first-time
standards under section 112 (d)(2)
(MACT) for certain hazardous air
pollutants emitted by secondary lead
smelters. Specifically, we are taking the
following actions:
III. Summary of the Final Rule
A. What are the final rule amendments

for the Secondary Lead Smelting source
category?
EPA promulgated the National
Emission Standards for Hazardous Air
Pollutant Emissions: Secondary Lead
Smelting on June 13, 1997 (62 FR
32216). The standards are codified at 40
CFR part 63, subpart X. The secondary
lead smelting industry consists of
facilities that recycle lead-bearing scrap
material, typically lead acid batteries,
into elemental lead or lead alloys. The
source category covered by this MACT
standard currently includes 16 facilities,
including one facility that is not
currently operating and one facility that
is in the process of being constructed.
This section describes the final
amendments to the secondary lead
smelting NESHAP. 2 These revisions
include changes to the stack and
fugitive metal HAP emission standards,
the addition of new THC and D/F
emission limits, the addition of a work
practice standard to separate plastics
from automotive batteries to prevent
dioxin emissions, the addition of work
practice standards to minimize mercury
emissions, and changes to the
requirements that apply during periods
of startup, shutdown, and malfunction.
In addition to these changes described
below, we are making minor changes to
the regulatory text to correct editorial
errors and to make plain language
revisions. We have evaluated the cost,
emissions reductions, energy
implications and cost effectiveness of all
of the standards being promulgated in
this final rule and have determined that
these measures are cost effective,
technically feasible and will provide the
public with an ample margin of safety
from exposure to emissions from the
secondary lead smelter source category.
See Cost Impacts of the Revised
NESHAP for the Secondary Lead
Smelting Source Category, which is
available in the docket, for information
on the costs and cost effectiveness of
each of the standards being promulgated
in this final rule.
Revising some requirements of the

NESHAP related to control of metal HAP
emissions based on our risk assessment and
technology reviews.
Finalizing first-time total hydrocarbon
1. Stack and Fugitive Metal HAP
(THC) and dioxin and furan (D/F) emissions
Emission Standards
limits and a plastic separation work practice
For the reasons provided in Section
standard to prevent dioxin formation.
IV.A of this preamble and in the support
Finalizing work practice standards for
documents in the docket, we have
mercury.
determined that the risks associated
Revising the requirements in the
NESHAP related to emissions during periods with emissions from this source
of startup, shutdown, and malfunction
(SSM).
Incorporating the use of plain language

into the rule.
Addressing technical and editorial
corrections in the rule.
>Note that the EPA is reprinting portions of the

language from the 1997 NESHAP here so the entire
rule appears in one place, for readers' convenience.
The EPA is not amending, reopening or otherwise
reconsidering these reprinted portions of the 1997
rule.
category are unacceptable primarily due
to fugitive emissions of lead. We have
further determined that there have been
developments in practices, processes,
and control technologies that warrant
revisions to the MACT standard (i.e., the
standards promulgated pursuant to
section 112(d)(2) and (3)) for this source
category. Therefore, to satisfy the
requirements of CAA sections 112(d)(6)
and 112(f), we are revising the MACT
standard to include:
A facility wide, flow weighted
average lead 3 emissions limit from
stacks of 0.20 mg/dscm and an
individual stack lead emissions limit of
1.0 mg/dscm for each stack at existing

sources. For new sources, a lead
emissions limit of 0.20 mg/dscm applies
to each individual stack at a modified or
"greenfield" new facility.
A requirement for the facility to
operate sources of fugitive lead
emissions within total enclosures that
are maintained under negative pressure
and vented to a control device. These
sources of fugitive emissions include
the smelting furnaces, smelting furnace
charging areas, lead taps, slag taps,
molds during tapping, battery breakers,
refining kettles, casting areas, dryers,
material handling areas, and areas
559
where dust from fabric filters,

sweepings or used fabric filters are
processed. The facilities are also
required to adopt a list of specified work
practice standards to minimize fugitive.
emissions.
2. Organic HAP Emissions Standards
To satisfy CAA sections 112(d)(2) and
112(d)(3), we are also revising the
MACT standard to include first-time
D/F and THC emission limits (with THC
serving as a surrogate for non-dioxin
organic HAP). These emission limits are
summarized in Table-3 of this preamble.
TABLE 3-SUMMARY OF NEW THC AND 0/F EMISSION LiMITS

D/F Emission
limita
Source type
New and Existing Collocated Blast and Reverberatory Furnaces ..................................................................... .
Existing Blast Furnaces ...................................................................................................................................... .
New Blast Furnaces .......................................................................................................................................... ..
New and Existing Reverberatory and Electric Furnaces ................................................................................... .
0.50
170
10
1.0
THC Emission
Limitb
"20
360
"70
12
a ng/dscm on a TEQ basis, corrected to 7 percent 02.

bppmv as propane, corrected to 4 percent C0 2.
"Emission limit is unchanged from 1997 NESHAP.
3. Startup, Shutdown, and Malfunction

The United States Court of Appeals
for the District of Columbia Circuit
vacated portions oftwo provisions in
the EPA's CAA section 112 regulations
governing the emissions of HAP during
periods of startup, shutdown, and
malfunction (SSM). Sierra Club v. EPA,
551 F.3d 1019 (DC Cir. 2008), cert.
denied, 130 S. Ct. 1735 (2010).
Specifically, the Court vacated the SSM
exemption contained in 40 CFR
63.6(f)(1) and 40 CFR 63.6(h)(1), that
was part of a regulation, commonly
referred to as the "General Provisions
Rule", that the EPA promulgated under
CAA section 112. When incorporated
into CAA section 112(d) regulations for
specific source categories, these two
provisions exempted sources from the
requirement to comply with the
otherwise applicable CAA section
112(d) emission standard during periods
of SSM.
We have eliminated the SSM
exemption for secondary lead smelting
facilities in this rule. Consistent with
Sierra Club v. EPA, the EPA has
established standards in this rule for all
periods of operation. We have also
revised Table 1 to subpart X (the
General Provisions table) in several
respects. For example, we have
3 Throughout this preamble, all references to lead
emissions means lead compounds as listed by
Congress at section 112(b)[I) of the Act.
' Since startup and shutdown refers to the
smelling process, and not to ancillary management
eliminated that incorporation of the

General Provisions' requirement that the
source develop an SSM plan. We have
also eliminated or revised certain
recordkeeping and reporting that related
to the SSM exemption. The EPA has
attempted to ensure Lhat we have not
included in the regulatory language any
provisions that are inappropriate,
unnecessary, or redundant in the
absence of the SSM exemption.
In establishing the standards in this
rule, the EPA has taken into account
startup and shutdown periods and, for
the reasons explained below, has
established different standards for nondioxin organic HAP during those
periods.
Information on periods of startup and
shutdown in the industry indicate that
lead emissions during these periods do
not increase (consistent with our
engineering judgment that lead
emissions would not increase during
these periods because lead-bearing feed
is not being smelted during these
periods). Furthermore, all lead-emitting
processes are controlled by either
control devices or work practices and
these controls would not typically be
affected by startup or shutdown.
Therefore, the EPA is not adopting
separate lead-emission standards for

periods of startup and shutdown.4
The EPA has revised this final rule to
require sources to meet a work practice
standard that requires the development
of standard operating procedures
designed to minimize emissions of THC
for each start-up and shutdown scenario
anticipated for all units subject to THC
limits. Temperature monitoring is the
metric used to determine continuous
compliance with emission standards for
THC. This metric is inappropriate as a
measure of the destruction efficiency of
these organic pollutants during periods
of startup and shutdown.
The EPA is not including a standard
for dioxins and furans during periods of
startup and shutdown. This is because
dioxins and furans will not be emitted
during those periods. During startup
and shutdown, scrap feed materials
(including chlorinated plastics and
flame retardants) that contain Lhe
precursors needed for dioxin formation
are not introduced into the smelters so
there are no conditions that could give
rise to dioxin and furan emissions.
The EPA determined that it is not
technically and economically feasible
for units subject to THC limits to
perform stack testing for this pollutant
during periods of startup and shutdown
due to technical and economic
activities, there are no startup and shutdown

standards for process fugitive emissions since
startup and shutdown do not occur for the activities
generating such emissions.
5 "Shutdown" is defined as a period "when no

lead bearing materials are being fed to the furnace
and smelting operations have ceased * * *".
Section 63.542 (definition of"shutdown").
560
impracticality associated with testing

secondary lead smelting furnaces during
these periods. The furnaces are heated
during periods of startup through slow
feeding of natural gas and small
amounts of coke, with no lead acid
batteries fed to the furnace during these
periods. Test crews would have to be
on-site prior to a period of startup or
shutdown occurring and may need to
break up a single test over multiple
startups or shutdowns, the length of
which could vary depending on the type
of secondary lead smelting furnace
being tested, that would happen
infrequently to-gather enough data to
complete a three-run test. See also
section V.G of this preamble discussing
these standards further.
Periods of startup, normal operations,
and shutdown are all predictable and
routine aspects of a source's operations.
However, by contrast, malfunction is
defined as a "sudden, infrequent, and
not reasonably preventable failure of air
pollution control and monitoring
equipment, process equipment or a
process to operate in a normal or usual
manner* * *" (40 CFR 63.2). The EPA
has determined that CAA section 112
does not require that emissions that
occur during periods of malfunction be
factored into development of CAA
section 112 standards. Under section
112, emissions standards for new
sources must be no less stringent than
the level "achieved" by the best
controlled similar source and for
existing sources generally must be no
less stringent than the average emission
limitation "achieved" by the best
performing 12 percent of sources in the
category. There is nothing in section 112
that directs the agency to consider
malfunctions in determining the level
"achieved" by the best performing or
best controlled sources when setting
emission standards. Moreover, while the
EPA accounts for variability in setting
emissions standards consistent with the
section 112 case law, nothing in that
case law requires the agency to consider
malfunctions as part of that analysis.
Section 112 uses the concept of "best
controlled" and "best performing" unit
in defining the level of stringency that
section 112 performance standards must
meet. Applying the concept of "best
controlled" or "best performing" to a
unit that is malfunctioning presents
significant difficulties, as malfunctions
are sudden and unexpected events.
Further, accounting for malfunctions
would be difficult, if not impossible,
given the myriad different types of
malfunctions that can occur across all
sources in the category and given the
difficulties associated with predicting or
accounting for the frequency, degree,
and duration of various malfunctions

that might occur. As such, the
performance of 1mits that are
malfunctioning is not "reasonably"
foreseeable. See, e.g., Sierra Club v.
EPA, 167 F. 3d 658, 662 (DC Cir. 1999)
(EPA typically has wide latitude in
determining the extent of data-gathering
necessary to solve a problem.) We
generally defer to an agency's decision
to proceed on the basis of imperfect
scientific informiltion, rather than to
"invest the resources to conduct the
perfect study". S8e also, Weyerhaeuser
v. Castle, 590 F.2d 1011, 1058 (DC Cir.
1978) ("In the nature of things, no
general limit, individual permit, or even
any upset provision can anticipate all
upset situations. After a certain point,
the transgression of regulatory limits
caused by 'uncontrollable acts of third
parties', such as strikes, sabotage,
operator intoxication or insanity, and a
variety of other eventualities, must be a
matter for the administrative exercise of
case-by-case enforcement discretion, not
for specification in advance by
regulation."), In addition, the goal of a
best-controlled or best-performing
source is to operate in such a way as to
avoid malfunctions of the source and
accounting for malfunctions could lead
to standards that are significantly less
stringent than levels that are achieved
by a well-performing nonmalfunctioning source. The EPA's
approach to malfunctions is consistent
with CAA section 112 and is a
reasonable interpretation of the statute.
In section 3.2.1 of the separate response
to comment document, we respond to
comments that emissions during
malfunctions should be accounted for in
assessing risk pursuant to CAA section
112(f)(2).
In the event that a source fails to
comply with the applicable CAA section
112(d) standards as a result of a
malfunction event, the EPA would
determine an appropriate response
based on, among other things, the good
faith efforts of the source to minimize
emissions during malfunction periods,
including preventative and corrective
actions, as well as root cause analyses
to ascertain and rectify excess
emissions. The EPA would also
consider whether the source's failure to
comply with the CAA section 112(d)
standard was, in fact, "sudden,
infrequent, not reasonably preventable"
and was not instead "caused in part by
poor maintenance or careless
operation." 40 CFR 63.2 (definition of
malfunction).
Finally, the EPA recognizes that even
equipment that is properly designed and
maintained can sometimes fail and that
such failure can sometimes cause an
exceedance of the relevant emission

standard. (See, e.g., State
Implementation Plans: Policy Regarding
Excessive Emissions During
Malfunctions, Startup, and Shutdown
(September 20, 1999}; Policy on Excess
Emissions During Startup, Shutdown,
Maintenance, and Malfunctions
(February 15, 1983).) The EPA is
therefore adding to the final rule an
affirmative defense to civil penalties for
exceedances of emission limits that are
caused by malfunctions. See 40 CFR
63.542 (defining "affirmative defense"
to mean, in the context of an
enforcement proceeding, a response or
defense put forward by a defendant,
regarding which the defendant has the
burden of proof, and the merits of which
are independently and objectively
evaluated in a judicial or administrative
proceeding). We also have added other
regulatory provisions to specify the
elements that are necessary to establish
this affirmative defense; the source must
prove by a preponderance of the
evidence that it has met all of the
elements set forth in 63.552 (see 40 CFR
22.24). The criteria ensure that the
affirmative defense is available only
where the event that causes an
exceedance of the emission limit meets
the narrow definition of malfunction in
40 CFR 63.2 (sudden, infrequent, not
reasonable preventable and not caused
by poor maintenance and or careless
operation). For example, to successfully
assert the affirmative defense, the source
must prove by a preponderance of the
evidence that excess emissions "(w]ere
caused by a sudden, infrequent, and
unavoidable failure of air pollution
control and monitoring equipment,
process equipment, or a process to
operate in a normal or usual manner
* * *." The criteria also are designed to
ensure that steps are taken to correct the
malfunction, to minimize emissions in
accordance with 40 CFR 63.552 and to
prevent future malfunctions. For
example, the source must prove by a
preponderance of the evidence that
"[r)epairs were made as expeditiously as
possible when the applicable emission
limitations were being exceeded * * *"
and that "[a]ll possible steps were taken
to minimize the impact of the excess
emissions on ambient air quality, the
environment and human health * * * "
In any judicial or administrative
proceeding, the Administrator may
challenge the assertion of the affirmative
defense and, if the respondent has not
met its burden of proving all of the
requirements in the affirmative defense,
appropriate penalties may be assessed
in accordance with CAA section 113
(see also 40 CFR 22.27).
Federal Register/Val. 77, No. 3/Thursday, January 5, 2012/Rules and Regulations

The EPA is including an affirmative
defense in the final rule in an attempt
to balance a tension, inherent in many
types of air regulations, to ensure
adequate compliance while
simultaneously recognizing that despite
the most diligent of efforts, emission
limits may be exceeded under
circumstances beyond the control of the
source. The EPA must establish
emission standards that "limit the
quantity, rate, or concentration of
emissions of air pollutants on a
continuous basis" 42 U.S.C. 7602(k)
(defining "emission limitation and
emission standard"). See generally
Sierra Club v. EPA, 551 F.3d 1019, 1021
(DC Cir. 2008). Thus, the EPA is
required to ensure that section 112
emissions limitations are continuous.
The affirmative defense for malfunction
events meets this requirement by
ensuring that even where there is a
malfunction, the emission limitation is
still enforceable through injunctive
relief. While "continuous" limitations,
on the one hand, are required, there is
also case law indicating that in many
situations it is appropriate for the EPA
to account for the practical realities of
technology. For example, in Essex
Chemicalv. Ruckelshaus, 486 F.2d 427,
433 (DC Cir. 1973). the DC Circuit
acknowledged that in setting standards
under CAA section 111 "variant
provisions" such as provisions allowing
for upsets during startup, shutdown and
equipment malfunction "appear
necessary to preserve the reasonableness
of the standards as a whole and that the
record does not support the 'never to be
exceeded' standard currently in force."
See also, Portland Cement Association
v. Ruckelshaus, 486 F.2d 375 (DC Cir.
1973). Though intervening case law
such as Sierra Club v. EPA and the CAA
1977 amendments undermine the
relevance of these cases today, they
support the EPA's view that a system
that incorporates some level of
flexibility is reasonable. The affirmative
defense simply provides for a defense to
civil penalties for excess emissions that
are proven to be beyond the control of
the source. By incorporating an
affirmative defense, the EPA has
formalized its approach to upset events.
In a Clean Water Act setting, the Ninth
Circuit required this type of formalized
approach when regulating "upsets
beyond the control of the permit
holder." Marathon Oil Co. v. EPA, 564
F.2d 1253, 1272-73 (9th Cir. 1977). But
see Weyerhaeuser Co. v. Castle, 590
F.2d 1011, 1057-58 (DC Cir. 1978)
(holding that an informal approach is
adequate). The affirmative defense
provisions give the EPA the flexibility to
both ensure that its emission limitations

are "continuous" as required by 42
U.S.C. 7602(k) and account for
unplanned upsets and thus support the
reasonableness of the standard as a
whole.
561
performance test data in electronic

format, making it possible to move to an
electronic data submittal system that
would increase the ease and efficiency
of data submittal and improve data
accessibility.
One major advantage of submitting
B. What are the effective and
performance test data through the
compliance dates of the standards?
Electronic Reporting Tool (ERT) is a
The revisions to the MACT standards standardized method to compile and
being promulgated in this action are
store much of the documentation
effective on January 5, 2012. For the
required to be reported by this rule.
MACT standards being addressed in this Another advantage is that the ERT
action, the compliance date for the
clearly states what testing information
revised SSM requirements is the
would be required. Another important
effective date of the standards, January
benefit of submitting these data to the
5, 2012. The compliance date for
EPA at the time the source test is
existing sources for the revised stack
conducted is that it should substantially
lead emission limit and the revised
reduce the effort involved in data
fugitive emission standard including the collection activities in the future. When
requirement to adopt work practice
the EPA has performance test data in
standards and install total enclosures for hand, there will likely be fewer or less
specified process fugitive emission
substantial data collection requests in
sources, and for the new D/F and THC
conjunction with prospective required
emission limits, is 2 years from the
residual risk assessments or technology
effective date of the standard, January 6, reviews. This results in a reduced
2014. New sources must comply with
burden on both affected facilities (in
the all of the standards immediately
terms of reduced labor to respond to
upon the effective date of the standard,
data collection requests) and the EPA
January 5, 2012, or upon startup,
(in terms of preparing and distributing
whichever is later.
data collection requests and assessing
the results).
C. What are the requirements for
State, local, and tribal agencies can
submission of performance test data to
also
benefit from a more streamlined
the EPA?
and accurate review of electronic data
In this action, as a step to increase the submitted to them. The ERT allows for
ease and efficiency of data submittal
an electronic review process rather than
and improve data accessibility, the EPA a manual data assessment making
is requiring the electronic submittal of
review and evaluation of the data and
select performance test data.
calculations easier and more efficient.
Specifically, the EPA is requiring
As mentioned above, data entry will
owners and operators of secondary lead be through an electronic emissions test
smelting facilities to submit electronic
report structure called the Electronic
copies of performance test reports
Reporting Tool or ERT. The ERT will
required under 40 CFR 63.543 to the
generate an electronic report which will
EPA's WebFIRE database. The WebFIRE be submitted using the Compliance and
database was constructed to store
Emissions Data Reporting Interface
performance test data for use in
(CEDRI). The submitted report is
developing emission factors. A
transmitted through the EPA's Central
Data Exchange (CDX) network for
description of the WebFIRE database is
available at http://cfpub.epa.gov/
storage in the WebFIRE database making
oarweb/index.cfm?action=fire.main.
submittal of data very straightforward
The EPA must have performance test
and easy. A description of the ERT can
data to conduct effective reviews of
be found at http://tvww.epa.gov/ttn/
CAA sections 112 and 129 standards, as chieflert/index.html and CEDRI can be
well as for many other purposes
accessed through the CDX Web site
including compliance determinations,
(www.epa.gov/cdx).
The requirement to submit
emission factor development, and
annual emission rate determinations. In performance test data electronically to
conducting these required reviews, the
the EPA does not create any additional
EPA has found it ineffective and time
performance testing and would apply
consuming, not only for us, but also for
only to those performance tests
other regulatory agencies and for source conducted using test methods that are
owners and operators, to locate, collect, supported by the ERT. The ERT
and submit performance test data
contains a specific electronic data entry
because of varied locations for data
form for most of the commonly used
storage anc;l. varied data storage methods. EPA reference methods. A listing of the
In recent years, though, stack testing
pollutants and test methods supported
by the ERT is available at http://
firms have typically collected
562
www.epa.gov/ttnlchief/ertlindex.html.
We believe that industry will benefit
from this new electronic data submittal
requirement. Having these data, the EPA
will be able to develop improved
emission factors, make fewer
information requests, and promulgate
better regulations. The information to be
.reported is already required for the
existing test methods and is necessary to
evaluate the conformance to the test
method.
Finally, another benefit of submitting
data to WebFIRE electronically is that
these data will greatly improve the
overall quality of the existing and new
emission factors by supplementing the
pool of emissions test data for
establishing emissions factors and by
ensuring that the factors are more
representative of current industry
operational procedures. A common
complaint heard from industry and
regulators is that emission factors are
outdated or not representative of a
particular source category. With timely
receipt and incorporation of data from
most performance tests, the EPA will be
able to ensure that emission factors,
when updated, represent the most
current range of operational practices. In
summary, in addition to supporting
regulation development, control strategy
development, and other air pollution
control activities, having an electronic
database populated with performance
test data will save industry, state, local,
tribal agencies, and the EPA significant
time, money, and effort while improving
the quality of emission inventories and,
as a result, air quality regulations.
IV. Summary of Significant Changes
Since Proposal
A. Changes to the Risk Assessment

Performed Under CAA Section 112{f}
In the proposed rulemaking, the EPA
presented a number of options for
additional controls on the Secondary
Lead Smelting source category. In that
notice, the EPA solicited comment on
the proposed options as well as on all
ofthe analyses and data upon which the
options were based, including the risk
methods and results presented in the
draft document: Residual Risk
Assessment for the Secondary Lead

Smelting Source Category.
During the public comment period for
the proposed rule, several parties
submitted comments and suggested
revisions regarding the emissions used
for the risk assessment, and also
submitted other information relevant to
the risk assessment (see docket ID EPAHQ-OAR-2011-0344 for all public
comments). After considering these
submissions, the EPA revised its
analyses. Revised methods, model
inputs, and risk results are presented in
the report: Residual Risk Assessment for
the Secondary Lead Smelting Source
Category, which is available in the
docket for this rulemaking. In addition,
a discussion of the updated emissions
information used in the final risk
assessment can be found in the
memorandum titled: Development of the
RTR Emissions Dataset for the
Secondary Lead Smelting Source
Category, which can also be found in
the docket for this rulemaking.
Considering the updated emissions
information received during the public
comment period for the proposed rule,
our final risk analysis estimates that the
primary NAAQS for lead, used in this
rule as a measure of acceptable risk from
air-borne lead emissions, could be
exceeded at 9 of 15 facilities based on
actual emissions, largely due to fugitive
dust emissions (see Table 4). At these 9
facilities, fugitive dust emissions
account for about 94 to 99 percent of the
estimated 3-month maximum lead
concentrations. 6 Our analysis also
estimates that approximately 200 people
live in areas around three of these
facilities where 3-month maximum lead
concentrations are estimated to be
between one and three times above the
lead NAAQS. Allowable stack emissions
of lead also resulted in modeled
concentrations exceeding the NAAQS,
with modeled lead ambient air levels as
high as 8 and 10 times above the
NAAQS. This analysis also estimates
that 3-month maximum lead
For all facilities, the percent contribution of

fugitive and stack emissions to modeled ambient
lead concentrations has only been estimated for the
model receptor representing the site of maximum
lead impact.
concentrations from a secondary lead

smelter could be up to about 20 times
the NAAQS for lead based on actual
emissions. The maximum lead
exceedances at populated census block
centroids were between one and three
times the NAAQS. There is some
uncertainty associated with the fugitive
emissions estimates that is derived from
the uncertainty involved in determining
the housekeeping and enclosure factors.
This uncertainty could have important
impacts on the estimated fugitive
emissions and the resulting modeled
ambient concentration. For example, if
the level of control assumed through the
use of full enclosure and robust
housekeeping were both increased from
75 percent to 85 percent, the estimated
fugitive emissions at the RSR facility
would be about 43 pounds (roughly
three times lower than those estimated
in this rule). If the level of control
assumed through the use of full
enclosure and robust housekeeping
were both decreased from 75 percent to
65 percent, the estimated fugitive
emissions at the RSR facility would be
about 240 pounds (roughly two times
higher than those estimated in this rule).
As shown in this example, changing the
estimates of control efficiency achieved
with full enclosure and robust
housekeeping practices by 10 percent
each could impact the resulting fugitive
emission estimates for facilities
employing that level of control by two
to three times. These estimates could
significantly impact the resulting risk
estimates since most of the impact of
lead emissions was due to fugitive dust
emissions. While there are uncertainties
associated with estimating fugitive
emissions, we conclude that the
methodology used in this rulemaking
provided reasonable estimates of
fugitive emissions for these sources. For
further details, see Development of the
RTR Emissions Dataset for the
Category, available in docket ID EPAHQ-OAR-2011-0344, which describes
how we developed these fugitive
emissions estimates and provides a
presentation of our estimates compared
to estimates submitted via the ICR and
estimates reported to the TRI.
563
TABLE 4-SECONDARY LEAD SMELTING FACILITY MODELED MAXIMUM AMBIENT LEAD CONCENTRATIONS CONSIDERING
ACTUAL EMISSIONS a
[Rolling 3-month average values]
Facility name
City
State
Highest
modeled
lead concentration
(J.lg/m3)
Doe Run Company-Buick Mill ....................................

Sanders Lead Co .............. .........................................
Exide Corporation .......................................................
Battery Recycling Co ..................................................
Gulf Coast Recycling, Inc ...........................................
Exide Technologies-Canon Hollow Plant ..................
Gopher Resource Corp ..............................................
Frisco Battery Recycling ....................................... ......
Exide Tech/Reading Smelter ......................................
Quemetco, Inc ............................................................
Exide Technologies ....................................................
Exide Technologies/B R Smelter ...............................
Revere Smelting & Refining Corp ..............................
Quemetco, Inc ............................................................
East Penn Mfg. Co Inc/Smelter Pit ............................
a Values
Boss ...........................................................................
Troy ................ ............................................................
Vernon .......................................................................
Arecibo .......................................................................
Tampa ........................................................................
Forest City .................................................................
Eagan .........................................................................
Frisco .........................................................................
Reading ......................................................................
Industry ......................................................................
Muncie .......................................................................
Baton Rouge ..............................................................
Middletown .................................................................
Indianapolis ................................................................
Lyon Station ...............................................................
MO
AL
CA
PR
FL
MO
MN
TX
PA
CA
IN
LA
NY
IN
PA
2.36
2.16
1.14
0.76
0.38
0.47
0.35
0.23
0.25
0.17
0.15
Concentration is X
times the
NAAQS
20
10
8
5
3
3
2
2
2
1
1
0.14
0.02
0.7
0.5
0.1
0.10
0.07
of 1 or less in the last column indicate that modeled lead concentrations are at or below the NAAQS for lead.
We also note that there were changes

to our cancer, acute, and PB-HAP
multi pathway case study analyses (see
section 3.4 of the risk assessment
document) for non-lead HAP as a result
of the updated risk assessment
performed for the final rule. With
respect to our updated cancer risk
assessment, we estimate that the
maximum individual risk (MIR) of
cancer due to actual emissions is 50 in
a million predominantly due to fugitive
dust emissions of arsenic and cadmium
as compared to the analysis at proposal
of risk of 50 in a million but based on
a different secondary lead facility.
Moreover, approximately 700 people
were estimated to have cancer risks
above 10 in a million and approximately
80,000 people were estimated to have
cancer risks above 1 in a million
considering all facilities in this source
category (as compared to the analysis at
proposal of 1,500 above 10 in a million
and 128,000 above 1 in a million). In
addition, the MIR due to MACT
allowable emissions remains 200 in a
million predominantly from stack
emissions of arsenic. The updated
worst-case acute hazard quotient (HQ)
value is 20 at two facilities (based on the
REL for arsenic; the REL is the only
available acute health benchmark value
for arsenic and all other pollutants had
HQ values less than or equal to 1),
driven by both stack and fugitive dust
emissions of arsenic (as compared to
analysis at proposal of an acute HQ
value of 30 based on the REL for arsenic
at one facility driven by emissions from
stacks). Finally, the risk assessment
supporting the final rulemaking
estimates that the cancer MIR values

from both multipathway case study
analyses (i.e., in Frisco, TX and
Middletown, NY; see section 3.2 of the
final risk assessment document) are less
than 1 in a million (as compared to an
estimated multipathway MIR of 30 in a
million and less than 1 in a million in
the Frisco, TX and Middletown, NY
multipathway case study analyses for
the proposed rule). Notably, the
reduction in multi pathway risks
resulted from updated emissions
information received during the public
comment period with respect to these
facilities.
Taking into account all the results of
the final risk assessment, and similar to
the proposed rulemaking, we conclude
that risks to public health due to
emissions from this source category are
unacceptable. Our conclusion is
primarily based on risk from exposure
to air-borne lead emissions but also
considers other risk metrics such as
cancer and non-cancer risks associated
with actual and allowable stack
emissions of non-lead HAPs, especially
arsenic and cadmium. As mentioned
above, actual lead emissions resulted in
modeled concentrations of lead above
the lead NAAQS at 9 of 15 facilities.
Thus, we note that allowable stack
emissions of lead and other HAP metals
and fugitive emissions of lead must be
reduced to assure that lead
concentrations in ambient air beyond
the facility fenceline are acceptablethat is, do not exceed the lead NAAQS
(the measure of risk acceptability for
exposure to air-borne lead in this rule).
The fact that maximum individual
cancer risks due to actual emissions are

above 1 in a million also contributes to
our determination of unacceptability,
but to a lesser extent. While the
estimated maximum individual cancer
risks due to actual emissions would, by
themselves, not generally lead us to a
determination that risks are
unacceptable, the fact that they occur
along with the exceedences of the lead
primary NAAQS adds to our concern
about these exposures, and further
supports our proposed determination
that risks are unacceptable. To provide
acceptable levels of risk with an ample
margin of safety, we are finalizing the
requirement that secondary lead
smelting facilities must operate the
following fugitive dust emissions
sources within total enclosures that
must be maintained at negative pressure
at all times and vented to a control
device designed to capture lead
particulate: Smelting furnaces, smelting
furnace charging areas, lead taps, slag
taps, molds during tapping, battery
breakers, refining kettles, casting areas,
dryers, material handling areas
managing lead bearing materials, and
areas where dust from fabric filters,
sweepings, or used fabric filters are
processed. As further described in
Section IV.C of this preamble, based on
public comments, we are not adopting
the proposed alternative to demonstrate
compliance by monitoring lead at or
near the property boundary based on a
3-month rolling average in lieu of
constructing total enclosures. [See 76 FR
29056.) We are finalizing the proposed
requirement for facilities to conduct
fugitive emission work practices as well
564
significantly lower than those facilities

that do not have enclosures. We have
considered the public comments on this
issue, and have decided to adopt the
requirements largely as proposed. This
requirement is identical to that adopted
to eliminate unacceptable risk for
fugitive emissions pursuant to CAA
section 112 (f)(2). However, as described
in Section IV.C of this preamble, based
on public comments, we are not
adopting the proposed alternative to
demonstrate compliance by monitoring
lead at or near their property boundary
based on a 3-month rolling average in
lieu of constructing total enclosures.
(See 76 FR 29056.) We are finalizing the
proposed requirement for facilities to
conduct fugitive emission work
practices as well as to enclose fugitive
emission sources. As further described
in Section IV.C ofthis preamble, we are
also promulgating a revised list of
required work practices based on a
B. Changes to the Technology Review
Performed Under CAA Section 112(d)(6) number of comments received regarding
the necessity, efficacy, and safety of the
Based on the technology review under work practices which the EPA
CAA section 112(d)(6), the EPA
proposed.
proposed to change the stack lead
We are also finalizing the requirement
emission limits from 2.0 mg/dscm for
limiting stack lead emissions to 0.2 mg/
any individual stack to a facility-wide,
dscm as a facility-wide emissions
flow-weighted average emission limit of average and limiting stack lead
0.20 mg/dscm with a limit of 1.0 mg/
emissions from any single stack to 1.0
dscm applicable to any individual stack. mg/dscm as proposed.
The proposed limit was based on
We note tliat although we have
emissions data collected from industry,
adopted the same standards under both
which indicated that well-performing
CAA sections 112(f)(2) and 112(d)(6),
baghouses currently used by much of
these standards rest on independent
the industry are capable of achieving
statutory authorities and independent
outlet lead concentrations significantly
rationales. Consequently, these
lower than the limit of 2.0 mg/dscm
standards remain independent and
adopted in the 1997 MACT standard.
legally severable.
We have considered the public
C. Other Changes Since Proposal
comments on this issue and are
adopting the limits as proposed.
We received over 30 public comments
Under CAA section 112(d)(6), we also on the proposed rule. After considering
proposed a fugitive emission standard
these comments, we are making the
requiring operation of the following
following additional changes to the
process fugitive emission sources in
proposal. The rationale for these and
total enclosures that are maintained
any other significant changes can be
under negative pressure at all times and found in this preamble and in the
vented to a control device: Smelting
comment response document available
furnaces, smelting furnace charging
in the docket.
areas, lead taps, slag taps, and molds
1. Stack Emission Limits
during charging, battery breakers,
refining kettles, casting areas, dryers,
The EPA is not adopting numerical
agglomerating furnaces and
limits for THC and D/F emissions from
agglomerating furnace product taps,
rotary furnaces pending further datamaterial handling areas for any lead
gathering and analysis for this furnace
bearing materials, and areas where dust type.
from fabric filters, sweepings, or used
For units constructed after June 9,
fabric filters are processed. This
1994, the EPA is adding a limit for THC
proposed requirement was based on
and D/F for collocated blast and
information collected from the industry reverberatory furnaces when the
that indicated that several operating
reverberatory furnace is not operating,
facilities currently enclose most or all of and is amending the D/F limits for blast
their process fugitive emission sources,
furnaces for units that commenced
and that the ambient lead
construction after June 9, 1994. We also
concentrations near these facilities are
added a THC and D/F new source limit
as to enclose fugitive emission sources.
As further described in Section IV.C of
this preamble, we are also promulgating
a revised list of required work practices
based on a number of comments
received regarding the necessity,
efficacy, and safety of the work practices
which the EPA proposed.
We are also finalizing the proposed
requirement limiting stack lead
emissions to 0.2 mg/dscm as a facilitywide emissions average and limiting
stack lead emissions from any single
stack to 1.0 mg/dscm.
After implementation of the controls
required in this final rule, we estimate
that there will be no one living at a
census block centroid exposed to
ambient concentrations above the
NAAQS due to these facilities and the
cancer MIR due to actual emissions will
decrease from 50 in a million to 7 in a
million.
for blast furnaces that commence

construction or reconstruction after May
19,2011.
2. Definitions
Definitions have been added for
"affected source" and "new source" to
clarify when the standards for new
sources would apply.
A definition of "lead-bearing
material" has been added to the rule to
clarify requirements for material
handling area enclosures and work
practices for fugitive emissions.
The definition of "material storage
and handling" has been revised to
exclude transfer of raw materials in
enclosed containers.
The definition of "plant roadway"
has been revised to exclude roadways
inside total enclosures.
The definition of "process vent"
has been revised to specify that it
includes only vents from lead
processing equipment and from
buildings containing lead bearing
material.
Definitions for "leeward,"
"windward," and "natural draft
opening" have been added to the rule to
clarify the differential pressure and
monitoring requirements and the
requirement to maintain an inward flow
of air through enclosure openings.
The definition of "total enclosure"
was modified by specifically including
modified text from 40 CFR 265.1101 and
EPA method 204 "Criteria for and
Verification of a Permanent or
Temporary Total Enclosure" rather than
citing the reference to the requirements
for a hazardous waste containment area.
We also clarified the requirement for
total enclosures to be vented to a control
device designed to capture lead
particulates.
3. Enclosure Requirements
The proposed requirement to
maintain an in-draft velocity of 300 feet
per minute at enclosure openings (see
76 FR 29072) was replaced with a
requirement to maintain an inward flow
of air through all natural draft openings.
The proposed requirement for a
back-up power source for the
differential pressure monitors required
for the total enclosures (see 76 FR
29077) was eliminated, and a reporting
requirement was added to identify
periods when the power was lost to the
monitoring system.
The proposed rule (see 76 FR
29072) has been modified to clarify that
activities required for inspection of
fabric filters and maintenance of filters
that are in need of removal and
replacement are not required to be
conducted inside of total enclosures.
Lead ingot product handling, storm
water and wastewater treatment, intact
battery storage areas, and clean battery
casing plastic handling activities are not
subject to the total enclosure
requirement.
4. Fugitive Emission Work Practice
Requirements
The proposed maintenance
requirements (see 76 FR 29073) have
been modified to allow emergency
repairs of ductwork or structure leaks to
occur outside of enclosures if the time
to construct a temporary enclosure
would exceed the time to make a
temporary or permanent repair. The
proposed rule has been modified to
extend the deadline for required
maintenance and repair on total
enclosures to one week after
identification of any gaps, breaks,
separations, leak points or other
possible routes for emissions of lead to
the atmosphere. The final rule also
clarifies that once an item that is not
otherwise subject to total enclosure
requirements has been cleaned, its
maintenance is no longer subject to the
enclosure requirement.
The proposed rule has been edited
to allow for existing control devices to
treat the ventilation from temporary
enclosures constructed for maintenance
purposes if the device and its permit
account for increased airflow and
emissions for this activity.
The roof washing proposed work
practice (see 76 FR 29073) has been
removed from the list of required
fugitive emission work practices.
The specific proposed water
application rate of 0.48 gallons per
square yard (see 76 FR 29073) has been
removed from the road washing
requirement.
The proposed battery storage area
inspection frequency (see 76 FR 29073)
has been changed from twice per day to
once per week to maintain consistency
with inspection frequency required
under other regulatory programs.
The proposed requirement to
collect wash water in a container that is
not open to the atmosphere (see 76 FR
29073) has been removed.
The proposed rule (see 76 FR
29073) has been revised to clarify that
lead-bearing dust must be collected and
transported within closed conveyor
systems or in sealed, lead-proof
containers while other lead bearing
material must be contained and covered
in a manner that prevents spillage or
dust formation.
The proposed requirement for
cleaning after an accidental release (see
76 FR 29073) has been clarified to
include only those releases that exceed
565
the CERCLA repmtable quantity for lead

(e.g., 10 pounds).
V. Summary of Significant Comments

and Responses
5. Testing and Monitoring Requirements
A. Use of Lead Primary NAAQS as a

Measure of Acceptability of Risk for
Public Health
Commenters from both the
environmental and industry sectors
challenged the EPA's use of the lead
primary NAAQS as a measure of
acceptability of risk in this rule. The
EPA disagrees with these comments.
The EPA has reasonably applied the
lead primary NAAQS as a measure of
evaluating acceptability or
unacceptability of risk from exposure to
lead emissions from sources in this
category. The lead primary NAAQS
targets protection to children living near
sources, such as secondary lead
smelters, who are exposed at the level
of the standard-the population most
sensitive to the health impacts of these
emissions. Moreover, using the lead
primary NAAQS to assess acceptability
of risk does not amount to an
impermissible implementation of the
lead primary NAAQS as industry
commenters would have it. Full
responses to these comments are found
in the Response to Comment Document
for this rulemaking, available in docket
ID EP A-HQ-OAR-2011-0344.
The performaace testing

requirements (see 76 FR 29074) have
been modified to allow facilities to use
EPA Method 12 or Method 29 for lead
compounds.
A provision wns added allowing for
biannual testing of lead compounds and
THC for sources that demonstrate
concentrations th;;_t are less than 50
percent of the applicable limit.
An exemption was provided for
THC testing if a fa.:::ility has installed
and is using a THC CEMS.
The time betv,reen D/F testing (see
76 FR 29072) was changed from once
every 5 years to once every 6 years, in
anticipation that most facilities would
be on a biannual testing schedule for
lead and THC, and this schedule would
allow coordination of the two required
tests.
The conditions for the performance
tests (see 76 FR 29072) were changed
from "under such conditions as the
Administrator specifies * * *" to
"maximum representative operating
conditions for the process".
The EPA also added a provision
stating that sources which operate a
HEP A filter or WESP system
downstream of a primary particulate
(lead) control derice are not subject to
a bag leak detection system (BLDS)
requirement.
6. Other Changes
A provision Was added for sources
to develop procedures to minimize
emissions of THC limits during periods
of startup and shutdown.
We modified the proposed plastic
separation work practice requirement
(see 76 FR 29072) to include only
plastic battery casing materials from
automotive batteries (which comprise
the vast majority of input plastics).
The proposed recordkeeping and
reporting requirements were revised to
be consistent with the other changes
made to the rule.
A tracked changes version of the
regulatory language incorporating the
changes in this action is available in the
docket. Additionally, a summary of the
public comments that are not in the
preamble can be found in the comment
response document available in the
docket.
B. Total Enclosure Requirements

Comment: Several commenters
supported a requirement for total
enclosures of enumerated sources of
fugitive emissions. Some of those
commenters did not support the
alternative that would have allowed
ambient monitoring in lieu oftotal
enclosures.
According to one commenter, "The
purpose of establishing emission
standards and control technology
regulations is to reduce, by empirically
proven technical means, the release of
hazardous air pollutants into the
atmosphere." The commenter therefore
recommended that the EPA require
enclosures in all instances to limit
fugitive emissions.
According to another commenter,
"The non-cancer and cancer risk
reductions associated with total
enclosures of all lead bearing processes
to reduce fugitive emissions are clearly
demonstrated for all facilities in the post
control scenario contained in the
residual risk assessment. These benefits
also have been observed based on our
experience with total enclosures that are
under negative pressure and vented to
air pollution controls. * * * The annual
geometric mean oflead measured [in
ambient air near the facility] dropped
from a high of 0. 71 IJ.g/m3 (1987) to 0.06
j.J.g/m 3 (1993) after all of the point source
566
and fugitive emission controls were in

place. The benefits of requiring total
enclosures as demonstrated by the
ambient monitoring results were clearly
apparent to the Department and
surrounding community. Based on that
experience, we do not support the
alternative of allowing partial
enclosures with an air monitoring
requirement option in this rulemaking."
Another commenter stated "We do
not support allowing partial enclosures
with an air monitoring requirement
option, since the total enclosures have
been shown to be extremely effective in
reducing fugitive emissions of lead and
the other metal HAPs from these
sources."
One commenter indicated that neither
proposed alternative (total enclosure or
the ambient monitoring alternative)
complies with CAA section 112(d)(6)
but did state that "additional health risk
reductions would occur if a facility used
total enclosure." This commenter also
stated that the EPA should require total
enclosures and work practice standards
beyond those included in the proposed
rule to control fugitive dust emissions of
arsenic and cadmium and achieve
reductions in cancer and non-cancer
risks from these pollutants.
Alternatively, one commenter
disagreed that total enclosure is the
most effective method to reduce
emissions. Accordi:rJ.g to the commenter,
"Capturing emissions from secondary
lead smelting sources at the point of
emission and controlling such
emissions through the use of baghouses
equipped with secondary HEPA
filtration systems represents a better
alternative to constructing and
maintaining total enclosures around
secondary lead smelting sources."
Response: As explained at 76 FR
29059 in the proposed rule and below,
the EPA is amending the NESHAP for
fugitive emissions of lead both because
these emissions pose an unacceptable
risk under CAA section 112() and
because it is technically appropriate and
necessary to do so pursuant to section
112(d)(6). With respect to what changes
to adopt, we agree with those
commenters who argued that total
enclosures maintained under negative
pressure are the most effective means by
which to reduce fugitive emissions.
Facilities in this source category that
implement total enclosures as a means
of controlling fugitive emissions are able
to achieve significantly lower ambient
lead concentrations near the boundaries
of their facilities, as clearly
demonstrated in the Summary of
Ambient Lead Monitoring Data Around

Secondary Lead Smelting Facilities
document available in docket ID EPA-
HQ-OAR-2011-0344. About half of the

existing facilities currently have such
full enclosures, and a few other facilities
are currently constructing such
enclosures. The prevalence of total
enclosures in the secondary lead
smelting source category suggests that
this measure is cost effective and it is
clearly technically feasible. There is
more certainty that fugitive emissions
are well controlled through the use of
total enclosures than would exist with
the proposed alternative to use fenceline
ambient monitoring. The work practice
standards in the final rule have been
revised from those proposed to ensure
that there are no requirements that pose
safety hazards, are unnecessary to
achieve emission reductions, or result in
duplicative burden on regulated
facilities. The work practice standards
in the final rule are already
implemented at some of the facilities.
Furthermore, we assumed at proposal
that total enclosures would be required
at all facilities regardless of which
option they chose. The facilities that do
not operate total enclosures are unlikely
to achieve fenceline ambient
concentrations at or below the lead
primary NAAQS. The monitoring data
just mentioned and the ICR responses
indicated that the facilities which have
totally enclosed their processes are
generally achieving ambient
concentrations substantially lower than
those which have not totally enclosed.
Since we based our analysis at proposal
on the assumption that all facilities
would have to construct total enclosures
and assumed that the rule would
impose those costs on all sources which
have not yet installed total enclosures,
our cost analysis has already accounted
for the cost of total enclosure. See 76 FR
at 29064 and the cost impacts memo
that supported the proposed rule
(docket ID EPA-HQ-OAR-2011-03440040 at page 8). The total enclosure
requirements in section 63.544 ensure
that process fugitive emissions sources
and other fugitive dust emissions
sources will not generate fugitive
emissions that escape the facility
uncontrolled. The work practice
standards for process fugitive emissions
sources and fugitive dust emissions
sources in section 63.545 ensure that
fugitive dust is not generated outside of
total enclosures and that fugitive dust
generated inside total enclosures is not
carried outside of those enclosures.
We note that one commenter's
statements appear to pertain to process
fugitive emissions from secondary lead
smelters that are captured by enclosure
hoods and vented to a control device.
We agree that enclosure hoods near
sources of process fugitive emissions
(e.g., lead taps, charging hoppers, etc.)

can be an effective method to control
emissions from these sources. We also
recognize that these devices are
important to minimize exposure of
workers to lead dust. However, we note
that the enclosure hoods are not 100
percent effective at controlling these
emissions, and that process fugitives
that are amenable to control with hoods
are not the only source of fugitive
emissions from secondary lead
processes. We thus disagree that
enclosure hoods without total
enclosures represent a better alternative
for controlling all fugitive emissions.
objected to requiring monitoring of both
building pressure differential and the
in-draft velocity at building openings for
the total enclosures and stated that the
duplicate monitoring requirements are
redundant and unjustified. The
commenters also requested that the EPA
abandon its proposed specific minimum
velocity requirement at doorway
openings or lower the proposed
requirement of 300 feet per minute. Two
commenters stated that "A number of
the existing total enclosures in this
industry do not meet the proposed 300
feet per minute in-draft velocity
requirement, and their modification to
achieve 300 feet per minute would
require substantial expenditures." One
commenter stated that much larger
volumes of air would be exhausted from
the smelter buildings and that "the
greater the volume of air exhausted, the
greater the emissions of lead. Therefore
increasing exhaust volumes above
current levels could possibly have
negative impacts." The commenters
requested an exemption from
demonstration of compliance with the
in-draft requirements for access points
that are normally closed. One
commenter requested clarification of the
use of the terms "leeward" and
"windward" in the context of the
differential pressure monitoring.
One commenter stated that they have
demonstrated that none of these total
enclosure monitoring requirements and
continuous monitoring systems are
necessary to reduce actual emissions of
HAP. The commenter recommended
continued compliance with the original
1997 NESHAP, which requires facilities
to demonstrate that total enclosures
were maintained under constant
negative pressure by maintaining
process enclosure hoods at the
prescribed face velocities. As an
alternative, measurements of face
velocity at doorways and windows and
pressure measurements at prescribed
intervals would provide a viable
monitoring option.

Response: We agree with the
commenters that monitoring of both
building differential pressure and indraft velocity at building openings is
unnecessary. However, we disagree that
continuous monitoring of differential
pressure is overly prescriptive. We
believe that monitoring of building
differential pressure is the most accurate
means by which to ensure that the
building is under negative pressure at
all times. This method provides direct
measurements that the building is
indeed maintained at negative pressure.
Some commenters stated persuasively
that specifying doorway velocities could
require substantial additional in-draft,
which could cause strain to building
structures, wind chill problems for
workers, and pilot lights being
extinguished. We have therefore not
adopted the proposed requirement to
measure in-draft velocity at the
openings of the total enclosures but
have retained the continuous
differential pressure monitoring
requirement. However, we have altered
the differential pressure requirement
from 0.02 mm of mercury to 0.013 mm
of mercury to be consistent with EPA
Method 204's criteria for verification of
a permanent or temporary total
enclosure. With regard to the comment
that increased volumes of air exhausted
through control devices would increase
overall emissions, it is unclear to us
how directing previously uncontrolled
fugitive emissions through a fabric filter
would increase the overall emissions
from a structure.
objected to requiring a back-up power
source for the differential pressure
monitors. According to the commenters,
during a power outage, the "negative
pressure would not be maintained and
the pressure drop monitors would
simply be measuring and documenting
this known and predictable fact * * *.
The same information could be obtained
by requiring facilities to note periods
when power has been lost to the
ventilation fans such that negative
pressure could not be maintained." One
commenter recommended requiring an
uninterruptible power supply for the
control device as well as the total
enclosure monitoring system or
removing the current requirement.
commenters' assessment that a back-up
power source for the building
differential pressure monitors is not
needed. We also agree with the
commenters' suggestion to include a
recordkeeping provision for power
outages that occur for the building
ventilation systems. The regulatory text
has been edited accordingly.
567
commenter suggested that the rule "be

objected to the enclosure requirement at changed to require initiation of repairs
all areas where fabric filters are handled within 24 hours of discovery and
or processed. One commenter stated
completion of repairs as soon as
that "This is impractical in that all
practicable. Rather than seeking and
baghouses are not and cannot be located obtaining approval for extensions from
within enclosures. Therefore, in the
the Administrator, the source should be
replacement of used bag filters, there
required to file and to keep a record
will always be a point in which the bags listing when the problem was
must be handled in order to get them
discovered, when the repair was
into a closed container for transport."
initiated and when the repair was
Two commenters stated that "The first
completed." Another commenter stated
point at which used fabric filters are
that "the presence of leak points is
'handled' is upon removal from the
irrelevant to collection as long as the
baghouse cell, usually on a catwalk
size and location of these leak points
running along the side ofthe baghouse.
does not change over time. Once a
It is not appropriate to require all such
facility documents that any total
areas to be placed within total
enclosure criteria (for negative pressure)
enclosures. Best practices in the
are met, the presence of existing leak
industry when replacing fabric filters
points is irrelevant."
are to place the used filter bags in sealed
One commenter requested that the
plastic bags or other closed containers
EPA allow facilities to route emissions
in the cell while the filters are being
from partial or temporary enclosures to
replaced, but prior to removing the used control devices that meet the
filters to the catwalk."
performance requirements stated in the
Response: We agree that the proposed rule. According to the commenter, "This
requirement to enclose all areas where
compliance option is requested, b'ecause
fabric filters are handled or processed
as written, the provisions would require
may be impractical at times, the
manufacturer's specification alone and
enclosure of a catwalk being an
not allow use of an otherwise compliant
example. We also agree that fabric filters control device."
cannot be enclosed under the
Response: With regard to the
circumstances described in these
comment that the proposed
comments. We have therefore revised
the regulatory text to require used fabric maintenance practices were overly
filters to be placed in sealed plastic bags prescriptive, we have revised the
regulatory text to require performance of
or containers before removal from the
maintenance "in a manner that
baghouse cell.
minimizes emissions of fugitive dust"
C. Work Practice Standard '
that includes several options to control
Requirements for Fugitive Emissions
fugitive emissions. With regard to the
comment pertaining to inspection and
Comment: Several industry
maintenance of fabric filters, we have
respondents expressed concern about
the proposed requirement to perform all edited the regulatory text such that this
enclosure requirement does not apply to
maintenance activities for any
inspection and maintenance practices
equipment potentially contaminated
for fabric filters.
with lead bearing material inside an
We also agree with commenters that
enclosure.
making prompt and timely repairs for
Two commenters requested
clarification that once an item that is not leaks is often more effective than first
constructing a total enclosure around
already subject to total enclosure
the leak. However, we believe that the
requirements has been cleaned, its
formulation to initiate repairs "as soon
maintenance or repair is not subject to
as practicable" is too vague, We have
the enclosure requirements. Both
edited the regulatory text to require
commenters also gave an example of
completion ofrepairs to enclosures
circumstances where the best course of
within one week and inserted language
action would be to make an immediate
allowing facilities to initiate immediate
repair on a leak in an elevated duct
repairs of ductwork or structure leaks
rather than wait until a temporary
without an enclosure provided that the
structure was constructed. One
time necessary to construct a temporary
commenter expressed concern that
enclosure would exceed the time
inspection and maintenance of filters
necessary to make a temporary or
that are in need of removal and
permanent repair. This change ensures
replacement would need to be
that the requirement is technically
performed within a total enclosure.
Two commenters stated that 72 hours practicable and the most cost-effective
to make repairs to any gaps or leak
means for fixing leaks while minimizing
points in enclosures or structures was
the period during which the leak causes
not feasible to implement. One
emissions.
568
Federal Register/Val. 77, No. 3 /'f.hursday, January 5, 2012 /Rules and Regulations
We disagree with the commenter that

the presence of a leak point is irrelevant
to collection as long as the size and
location of these leak points do not
change over time. Total enclosures are
designed with openings of specific size
and location to provide appropriate
airflow into a building and to maintain
the negative pressure at all locations.
Multiple leak points at different
locations of non-uniform size would be
difficult to measure and document. It
would also be difficult to ensure that the
building negative pressure is uniform at
all locations.
We agree with the commenter that
facilities should be allowed to route
emissions from partial temporary
enclosures to existing control devices
that meet the performance specification
stated in the rule provided the control
device has the capability to
accommodate the additional air flow
and that its permit accounts for the
additional air flow and emissions. The
regulatory text has been edited
accordingly.
expressed concerns about the
requirement in the proposed rule for
cleaning of building rooftops. The
commenters stated that the EPA did not
provide a basis to demonstrate that roof
washing is effective or necessary. One
commenter stated that roof cleaning was
unnecessary to operate in compliance
with the current lead NAAQS, and that
current work practices are sufficient to
meet the standard. Several commenters
also stated that roof cleaning is
potentially dangerous to workers and in
some cases not possible due to the
rooftop construction and weather
conditions. Several commenters noted
that the requirement unnecessarily
applied at all times, even when natural
precipitation makes cleaning
unnecessary.
Response: We agree that the proposed
roof washing requirement may not be
feasible and may cause worker safety
hazards in some cases, and we have
therefore removed this activity from the
list of required fugitive emission work
practices.
opposed the specific requirement for a
mobile vacuum sweeper used for
pavement cleaning when a water flush
is used. The commenters stated that the
EPA provides no justification for the
minimum water application rate of 0.48
gallons per square yard of pavement
cleaned or evidence that equipment
currently used could achieve this rate.
The commenters suggested .that this
specific requirement be replaced with a
"requirement that pavement be
periodically cleaned, leaving methods,
and minimum water application rates to

individual facilities and, as relevant,
their permitting authorities." According
to the commenter, "EPA should further
exempt pavement cleaning on days
when natural precipitation makes
cleaning unnecessary or when sand or a
similar material has been spread on
plant roadways to provide traction on
ice or snow."
Two commenters also expressed
concerns that the rule requires
pavement cleaning in the battery
breaking, furnace, refining and casting
areas when a total enclosure is not used.
According to the commenters, certain
locations within these areas are not
capable of being cleaned on a routine
basis due to safety, access, or other
reasons. The commenters give an
example of paved areas under process
equipment as being an area that is not
safe to access during operation of the
equipment. One commenter also stated
that roadway cleaning and washing of
truck tires and undercarriages are
redundant requirements with no
incremental benefit.
commenters' suggestion to remove the
minimum water application rate
requirement from the regulatory text.
We note that the proposal did include
an exemption for cleaning on days when
natural precipitation makes cleaning
unnecessary or when sand or a similar
material has been spread on plant
roadways to provide traction on ice or
snow. That exemption remains in the
final rule. See 40 CFR 63.545(c)(2).
With regard to the comments
regarding pavement cleaning
requirements when total enclosures are
not used, we note that the final rule
requires total enclosures rather than
including them as an option.
Furthermore, it is our understanding
that in the cases where mobile sweeping
or wet washing equipment is not
feasible (e.g., underneath process
equipment), facilities can utilize hand
held vacuum equipment to clean these
areas. Therefore, we do not believe it is
appropriate to exempt these areas from
the cleaning requirements since these
areas contain fugitive lead which can be
emitted and reach human and
environmental receptors.
We disagree with the commenter that
roadway cleaning and undercarriage
washing are redundant requirements.
While truck tires may be a significant
source of lead bearing material on the
roadway, we understand that they are
not the only source. Therefore, we have
maintained both requirements in the
final rule.
Comment: One commenter
recommended modifying the
requirement to pave "all areas subject to

vehicle traffic" to "all areas subject to
routine vehicle traffic." The commenter
noted that. areas not subject to routine
traffic do not have the potential to
generate significant quantities of
fugitive dust and that paving these areas
would increase the amount of storm
water generated.
Response: We agree \vith the
commenter that there may be some
instances where paving and cleaning a
roadway is impractical. We have
included an exemption in the rule for
limited access and limited use roadways
that access remote, infrequently used
locations on the facility's property. See
40 CFR 63.545(c)(2).
Comment: Two commenters objected
to the proposed frequency of inspection
of the unenclosed battery storage areas.
One commenter "finds this requirement
to impose an administrative burden of
minimal value." According to the
commenter, "Spent lead acid batteries,
even if accidentally broken and leaking,
pose minimal potential for generation of
fugitive dust containing HAPs.
Inspection of these areas is typically
required on a weekly basis as part of the
facilities' Resource Conservation and
Recovery Act obligations and such
frequency is sufficient to satisfy the
intent of this proposed rule as well."
One commenter suggests that
identifying and mitigating leaks within
72 hours will prevent generation of
fugitive lead emissions. The commenter
also states that it is unclear whether
batteries stored in partial enclosures are
exempted from the twice daily
inspection requirement and proposes
the following regulatory language
incorporating both of these issues.
You must inspect any batteries that are not
stored in a partial or total enclosure once
each day and move any broken batteries to
a partial or total enclosure within 72 hours
of detection. You must also clean residue
from broken batteries within 72 hours of
identification. Storage of batteries in trucks
and railcars consistent with Department of
Transportation requirements are specifically
exempted from these requirements.

commenters that requiring inspection of
these areas on a twice daily basis is not
necessary. We have modified the
regulatory text to require inspection of
these areas once per week-consistent
requirements implementing the
hazardous waste subtitle ofRCRA (see
40 CFR 264.174 and 264.1101(c)(4) (and
the EPA sees no reason to- deviate from
these long-standing requirements here,
given that they were adopted to be
"protective of human health and the
environment" from management of
hazardous waste)-with removal of
brokenbatteries within 72 hours of
detection. We have also clarified that
the inspection requirement does not
apply to battery storage areas that are in
a total enclosure. We do not believe that
an exemption for storage of batteries in
trucks and railcars is necessary since the
inspection frequency was reduced to
once per week.
Comment: One commenter objected to
the requirement to collect wash water in
a container that is not open to the
atmosphere. The commenter stated that
"Covering of these collection tanks is
not necessary because lead dissolved
and/or suspended in water does not
have a pathway for becoming a fugitive
emission."
commenter that so long as the contents
in the container are wet, there should be
no fugitive emissions. We have removed
the requirement to collect wash water in
a sealed container.
Comment: Two commenters requested
changes to the requirement to transport
lead bearing materials in sealed leakproof containers. One commenter
proposed that containers be "covered"
rather than "sealed leak-proof" and that
an exemption be made for off-road
dump trucks. The suggestion was made
because "sealed leak-proof containers
* * * cannot be attained, but covers can
be for most trucks used in such
transport* * *.no approved sealing
covers are made for the 30-ton, 6-wheel,
off-road dump trucks used at the
facility." One commenter supported the
requirement for transporting lead
bearing materials within an enclosure or
in a sealed container, but suggested that
lead bearing materials with little
potential for production of fugitive lead
dust from transportation should be
excluded, including intact batteries, raw
materials with lead content that is not
considered recoverable such as iron,
caustic, coal, wood, sulfur and other
similar materials, and products from the
recycling process.
Response: We agree that the proposed
requirement for material transport
should be modified. The intent of the
proposed requirement was to prevent
fugitive lead dust formation outside of
a total enclosure. We have therefore
modified the requirement at 63.545(c)(7)
to read as follows:
"You must transport all lead bearing dust
within closed conveyor systems or in sealed,
leak-proof containers, unless the transport
activities are contained within an enclosure.
All other lead bearing material must be
contained and covered for transport outside
of a total enclosure in a manner that prevents
spillage or dust formation. Intact batteries
and lead ingot product are exempt from the
requirement to be covered for transport."
The definition of lead bearing

material in the rule clarifies that lead
bearing materials must contain at least
100 ppm of lead (measured via Toxicity
Characteristic Leaching Procedure (EPA
Method 1311) lead test results <5 mg/1).
Intact batteries and lead ingot product
are excluded from this requirement.
Comment: Some commenters agreed
that the secondary lead facilities operate
a separation process at their battery
breakers to separate polypropylene
battery case material as a valuable
recyclable commodity. However, not all
spent lead acid batteries are amenable to
separation. Certain battery types such as
small sealed-lead-acid batteries and
certain industrial lead-acid batteries are
fed into the blast furnace without ever
passing through the facility's battery
breaker. These batteries are either too
small or too large to be broken by the
automated battery breaking equipment.
One commenter requested that the EPA
estimate the cost of the systems that
would be required. Another commenter
offered that mandatory separation could
be used for facilities that are not
meeting TEQ limits as one of several
options to reduce emissions. Two
commenters stated that the current
dioxin emission levels pose no
incremental health risk presented by
background dioxin and that there is no
valid justification for imposing this
burden.
Response: Based on these comments,
we have revised the proposed plastics
separation work practice requirement to
be specific to automotive batteries,
which should be amenable to separation
based on current practices used in the
industry. We agree with the commenters
that some industrial batteries are not
easily processed in battery breakers and
that the retrofits or additional
equipment required to process such
batteries are not justified since
automotive batteries make up the vast
majority of lead acid batteries processed
at these facilities. We believe that
plastics separation from automotive
batteries is sufficient to minimize
emissions of organic HAP. We further
note that the use of battery breakers to
separate plastics from automotive
batteries is clearly a development in
practices that limits emissions of
organic HAP, including dioxin, and is
therefore an appropriate part of a
standard under CAA section 112(d)(6).
D. Emission Standards for Organic HAP

From Rotary Furnaces
Comment: We received several
comments on the proposed D/F and
THC MACT floor limits for the rotary
furnace subcategory that were based on
data (two test runs, see 76 FRat 29049)
569
from the slag-processing rotary furnace

at RSR's Middletown, NY facility. One
commenter stated that rotary furnace
standards should not be based on
emissions that are not from stand-alone
rotary furnace operations. The
commenter stated that the EPA should
not derive standards for rotary furnaces
from performance of a different source
type or subcategory that includes a
furnace combination (i.e., reverberatory/
short rotary furnace). The commenter
also contends that there are insufficient
data available to establish limits for
D/F and THC from rotary furnaces. The
commenter contends that the EPA used
one source that is not representative of
or similar to true rotary furnace
operation to establish the limits for
"rotary furnaces." The commenter
stated that the emissions limit
established in the proposed rule is
arbitrary because it is not based on
operations of rotary furnaces using lead
bearing materials from lead acid
batteries as feedstock.
The commenter notes that RSR's
Middletown, NY facility, whose test
data were used as the basis for the THC
and D/F limits, only uses their rotary
furnace to process one type of lead
bearing material, reverberatory slag, and
this furnace is not representative of the
full capabilities of rotary furnace
operation. The commenter notes that
JCI's Florence Recycling Center plans to
utilize stand-alone rotary furnaces to
process lead paste, battery components,
and "other materials with recoverable
quantities of lead." The commenter
further notes that the emissions from
RSR's short rotary furnace (SRF) and
drying kiln are combined, and it is
unclear from information in the docket
whether testing of the SRF occurred at
a location prior to the combination of
these exhaust streams.
The commenter also stated that JCI
and RSR differ in raw materials used in
the facilities' operations. RSR's Title V
application for its Middletown facility
indicates that RSR may process
automotive, industrial, and specialtytype lead-acid batteries as well as lead
bearing materials received from leadacid battery manufacturing plants and
scrap metal in its reverberatory furnace.
JCI's furnace feed is from automotive
and marine batteries and from lead
bearing materials from other JCI
facilities. The commenter contends that,
since the EPA considered no data
representative of a rotary furnace
operation such as that which will be
operated at the JCI Florence Recycling
Center, a numeric limit for this category
cannot be assigned.
One commenter also stated that the
stack test for RSR's SRF that was used
570
to develop D/F and THC emission limits

for "rotary furnaces" included only two
successful test runs and therefore must
be considered inadequate for setting
emission limits since 40 CFR 63.7(e)(3)
requires three test runs for compliance
demonstration purposes.
One commenter supports the
individual' stack emission limits for
THC and D/F but provides comment on
the EPA's consideration of statistical
variability for the rotary furnace
subcategory. The commenter stated that
the Upper Prediction Limit (UPL) tends
to inflate the variability because the
statistical procedure attempts to
accommodate the highest emission
measurement at the same facility and
not necessarily the variability between
facilities as the MACT floor is intended
to achieve. Additionally, the UPL is
very dependent on the number of valid
samples. The commenter contends that,
when a suitable number of samples have
been collected, the 99 percent
confidence limit (CL) represents a range
for which there is 99 percent certainty
that the interval contains the true mean.
The commenter suggests that caution be
used when determining a MACT floor
from limited test data and that the 99
percent CL is more appropriate for this
particular industry.
One commenter noted that the EPA
did not consider a secondary lead
smelting facility in Puerto Rico that
operates a stand-alone rotary furnace.
The commenter contends that even if it
were appropriate to set MACT floor
emission rates or standards for rotary
furnaces, the EPA would have to obtain
and consider data from the Puerto Rico
facility. According to the commenter,
failure to consider data from the facility
"undermines the RTR Proposed Rule
and any attempt by EPA to establish
emission standards for the rotary
furnace subcategory." The commenter
contends that the EPA should issue a
separate ICR for the Puerto Rico facility
and publish a supplemental notice of
proposed rulemaking that takes into
account the emission information for
this facility.
Response: The EPA agrees that rotary
furnaces fueled by natural gas could be
different from rotary furnaces operating
using different fuel types, and that
rotary furnaces processing slag could be
different types of rotary furnaces than
those processing lead acid batteries.
More basically, the EPA simply has
insufficient data on which to
standards for
promulgate organic
rotary furnaces. The proposed standards
for THC and D/F were based on less
than one single complete test, consisting
only of two test runs from the natural
gas fueled rotary furnace processing
not substantively alter our decisions

under section 112(f). The modeling
showed 9 of 15 facilities above the lead
NAAQS, down from 12 of 14 facilities
at proposal. The maximum modeled
lead concentration in the source
category decreased from about 23 times
the NAAQS to about 16 times the
NAAQS. We still find that risks from
this source category are not acceptable
and that revisions under section
112(f)(2) are therefore required, and
further find that it is necessary under
section 112(d)(6) to revise the standards
for fugitive emissions considering the
developments in cost-effective control
technologies for their control.
Comment: Three commenters stated
that the EPA's multipathway risk
estimates are incorrect because they
relied on incorrect dioxin and furan
emissions from Exide's Frisco, Texas
facility. The commenters contend that a
dioxin and furan test conducted in
October 2010 at the Frisco facility
revealed an emissions rate of 6.2E-08
tons/year on a toxic equivalency
quotient(TEQ) basis, 69 times lower
E. The EPA's Risk Assessment
than the estimate used by the EPA. One
Supporting the Proposed Rule
commenter noted that the exact effect
Comment: Two commenters stated
that the difference in emissions would
that the EPA's methodology is
have on the calculated risks is unknown
unreliable and incorrect. The
since the EPA has not placed the full
commenters stated that the EPA
methodology behind its multipathway
overestimated the baseline fugitive
risk calculations in the record. However,
emissions for the Exide Frisco facility
the commenter noted that assuming the
whose (faulty) estimates then became
relationship between emissions and risk
the basis for estimating all other
is approximately linear, the EPA's
facilities' fugitive emission rates. The
calculated risk would be approximately
commenter stated that the EPA scaled
69 times lower than that estimated at
Exide's reported fugitive emissions of
proposal and less than 1 in a million.
0.296 tpy for the blast and reverberatory The commenter further requested that
furnace fugitive emissions to 0.32 tpy
the EPA disclose its multi pathway risk
based on the assumption that fugitives
calculation methodology and allow for
would not be on the same operating
public notice-and-comment. Another
schedule as process emissions. The
commenter stated that the EPA's
commenter contends that this scaling is
overestimation of dioxin and furan
inappropriate since furnace fugitives
emissions may lead to unwarranted
can only occur when the associated
public concern about the Frisco facility.
process furnaces are operating. The
The commenter requested that the EPA
commenter further stated that the EPA
include a clarifying explanation
also double-counted the fugitives of 0.32 regarding the Frisco emissions data and
tpy by assigning the value to each of the the lower multi pathway risk in the final
blast and reverberatory furnaces, despite rule as well as in the risk assessment
the fact that Exide reported the value as
document.
combined emissions for both the
Response: As noted in previous
reverberatory and blast furnace.
responses, the final risk assessment
Response: The commenter is correct
reflects updated emission information
in both respects. The EPA has
received during the public comment
accordingly adjusted its calculation of
period for the proposed rule. We also
the fugitive emissions from Exide's
note that the updated dioxin/furan test
Frisco facility (thereby reducing the
data were not made available to the
facility's fugitive dust emissions
EPA, despite repeated requests, until
estimate) and adjusted the emissions
June 2011. With respect to the estimated
emissions ofD/F, the commenter is
estimates for each facility to reflect the
correct that EPA overestimated these
revised estimate of the Frisco facility.
The resulting risk results have also been emissions at proposal by a factor of 69
adjusted. We note that the updated
for the reasons stated. Considering this
emissions estimates and risk results did updated emissions information, the EPA
slag. See 76 FRat 29049-29050. (A
complete test consists of three test runs.)
When calculating variability using a
limited dataset (in this case, the two test
runs) the effect of variability can be
substantial. Id. The proposed THC and
D/F standards likewise were based on
two test runs and similarly reflected
enormous statistical variability due to
the limited data. Id. at 29049/1. The
EPA does not believe that these data are
sufficient to adopt a standard even for
the rotary furnace which was tested,
much less a rotary furnace which may
be different. Accordingly, we are not
adopting standards for organic HAP
emissions from rotary furnaces at this
time and instead we intend to issue
CAA section 114 information requests to
sources operating rotary furnaces to
obtain more representative emission
data and plan to propose standards for
organic HAP in a future action.
However, we note that the lead emission
standards included in this action do
apply to rotary furnaces processing slag
or lead acid batteries.
estimates that multi pathway risk
associated with the Exide Frisco facility
is less than 1 in a million (and so
contributes very little to the estimates of
risk posed by this source category, and
is not a driver of the determination that
risks from this source category are
unacceptable). See Residual Risk
Assessment for the Secondary Lead
Smelting Source Category, available in
the docket, at pages 32-33.
This additional information does not
warrant any reopening of the proposed
rule or comment period, however. First,
the EPA fully disclosed its
multi pathway risk methodology; the
commenter's assertions to the contrary
are simply mistaken. Thus, the risk
assessment document along with its
appendices was available in the docket
for the proposed rulemaking and
describes in detail the methodology
used in the assessment. See the Residual
Risk Assessment for the Secondary Lead
Smelting Source Category, at page 10,
available in the docket. Also see docket
ID EPA-HQ-OAR-2011-0344-0037 for
a thorough discussion of the EPA's
human health multipathway risk
assessment methodology.
Second, the new information
reinforces the tentative conclusion the
EPA reached at proposal: risks
associated with emissions of dioxin and
furans from the secondary lead source
category are not primary drivers in the
unacceptable risks from this source
category (i.e. dioxin and furan emissions
are not the reason that risks from
secondary lead smelter emissions are
unacceptable). See 76 FR at 29055/2.
The new analysis reinforces that risks
posed by dioxin and furan emissions are
acceptable, since emission levels are 69
times less than estimated at proposal
(when risks from CDD and CDFs were
already considered to be at an
acceptable level). Thus, this already
acceptable level of risk is less than
estimated and less than one in a million.
The EPA does not agree that further
comment on this issue is warranted,
since further comment would not have
a practical effect on the rule. 7
Comment: One commenter stated that
the EPA inappropriately summed risks
from the inhalation and multi pathway
risk assessments at the Exide Frisco
facility. The commenter noted that it is
impossible for the person with the
highest chronic inhalation cancer risk to
also be the same person with the highest
individual multi pathway cancer risk
7 The comment that EPA's standards for dioxin
and furans do not result in significant risk
reduction is misplaced given that the EPA is not
adopting any risk-based (i.e., section 112(0[2))
standards based on the need for reduction of
emissions of dioxin and furan.
since the two MIR values are location

dependent and are at locations that are
widely separated. The commenter
further noted that the EPA has indicated
in other contexts that when populations
are exposed via more than one pathway,
the combination of exposures across
pathways must also represent a
reasonable maximum exposure.
Response: The EPA disagrees with the
commenter. While highly unlikely (and
noted as being highly unlikely in the
risk assessment document), it is
theoretically possible for the person
with the highest chronic inhalation
cancer risk to also be the same person
with the highest individual
multipathway cancer risk. The EPA
notes that the multi pathway risk
assessment does not provide a specific
location for the MIR; thus, it is possible
(although highly unlikely) that the
person with the highest inhalation MIR
is also consuming fish (at the fish
ingestion rates described in the
multi pathway report) from the
theoretically contaminated lake. That
being said, however, we note that
considering updated emissions
information for this facility, updated
multi pathway results indicate
multi pathway risk associated with the
Exide Frisco facility are well below one
in a million. Considering these updated
results, multipathway risk would not
appreciable add to any inhalation risk
associated with this facility.
Comment: Commenter 94 stated that
the EPA improperly calculated the
inhalation cancer MIR for the Exide
Frisco facility in a vacant field to the
north of the facility within the facility's
property line. The commenter noted
that the lifetime cancer risk of the MEl
cannot be at a location within the
facility property line.
Response: The commenter is correct
and the EPA has corrected the receptor
location resulting in a change in the
results in the final risk assessment. The
MIR for this facility is now located at a
populated census block (based on the
2001 census).
F. Miscellaneous Changes to the

Regulatory Text
Comment: Three commenters
requested that the EPA replace the term
"modified source" with "reconstructed
source." Neither the proposed rule nor
the EPA's general Part 63 regulations
define the term "modified source." The
term is defined in the CAA, but that
definition would require a source to
install maximum achievable control
technology and impose a "new source"
requirement like CEMS on a modified
source, rather than appropriately
imposing the existing source provisions
571
that do not require installation of a

CEMS.
Response: The term "modified
source" appeared in the proposed rule
at 40 CFR 63.548(1) under the proposed
requirement to install a CEMS for
measuring lead emissions on all new or
modified sources. We agree with the
commenter that the terminology of
"reconstructed" source would be more
appropriate for this requirement and
have changed the regulatory language
accordingly.
Comment: Three commenters
requested clarification of the term
"affected source" as used in the
proposed rule. The proposed rule uses
the terms "new sources", "existing
source" and "modified source" without
clarifying whether it is referring to
secondary lead smelters generally, or to
potential emissions sources within
secondary lead smelters. There is a
seeming contradiction between the use
of the term "affected source" in the
proposed rule and the defini1.ion in 40
CFR Part 63, Subpart A general
provisions. One commenter also
understands that the terms "new
sources" and "existing sources", as used
in the proposed rule, are consistent with
the definitions as used in CAA 112(a).
The commenter "understands EPA
intends to address any addition of units
to an 'existing source' consistent with
the provisions of the CAA'' and
understands that the analysis as
explained in Nine Metal Fabrication
and Finishing Area Source Categories,
40 CFR Part 63 (6X} NESHAP, Questions
and Answers, April 2011 would apply
with respect to. implementation of any
amendments to subpart X requirements.
The Q&A explains that the "CAA uses
the word 'source' to mean the entire
facility in terms of the classification of
'new' vs. 'existing' whereas for the
Subpart 6X rule, what is referred to as
the 'affected source' is actually one of
the processes at the facility".
Response: The EPA has clarified the
application of these terms in the final
rule. The definition in 40 CFR part 63,
subpart A requires each relevant
standard to define the "affected source,"
as the collection of equipment,
activities, or both within a single
contiguous area and under common
control that is included in a CAA
section 112(c) source category or
subcategory for which a section 112(d)
standard or other relevant standard is
established pursuant to CAA section
112 unless a different definition is
warranted based on a published
justification as to why this definition
would result in significant
administrative, practical, or
implementation problems and why the
572
different definition would resolve those

problems. We have adopted a definition
of "affected source" in this rulemaking
as any of the listed individual-sources
at a secondary lead smelter. This
application of the term "affected
source" is the same as was used in the
1997 NESHAP for secondary lead. The
term "affected source" is used in the
final rule primarily in the context of
new sources. This definition is
appropriate for the secondary lead
source category because the chief source
of emissions from these facilities are the
furnaces, and as these furnaces are
replaced or reconstructed, the
replacement equipment would be
subject to the standard for a new source.
A "new source" has also been defined
as any affected source at a secondary
lead facility that undergoes construction
or reconstruction after May 19, 2011, the
date of the proposed CAA section
112(f)(2) and 112(d)(6) rules. A building
that is constructed for the purpose of
controlling fugitive emissions from an
existing source is not considered to be
a new source because it is effectively a
control device for fugitive emissions.
Comment: One commenter noted that
the last sentence in the current
definition of "Materials storage and
handling area" has been deleted in the
proposed definition. This sentence
reads: "Materials storage and handling
area does not include areas used
exclusively for storage of blast furnace
slag." The commenter disagreed with
the EPA's assessment that this is a
minor change. "EPA should provide an
explanation of what changed
circumstances justify a new rule." Two
other commenters requested that the
definition be modified to exclude the
transfer of raw materials of any type in
enclosed conveyors. The commenter
stated that "as currently worded, the
enclosure requirement proposed would
apply to handling of fabric filter dust in
enclosed conveyors, containers, or in
wet slurried form, which is
unnecessary." The commenter
suggested revising the definition to
include the following: "Material storage
and handling area shall not include any
closed containers or enclosed
mechanical conveyors."
Response: A definition of "lead
bearing material" has been added to the
final rule. Rather than include or
exclude any one particular material in
the definition of "materials storage and
handling area" based on the originating
process, this definition establishes lead
content as the criterion for determining
whether materials must be handled in
such a manner as to prevent lead dust
formation. The definition of "materials
storage and handling area" remains
essentially unchanged from the

definition in the proposed rule.
Fugitive dust formation has been
identified as the major contributor to
ambient lead concentrations near
secondary lead smelters. Piles where
lead bearing materials are stored were
identified as one of the major sources of
fugitive lead emissions. However, there
was no definition for lead-bearing
material in the proposed rule that could
be used to make a determination of
which materials needed to be handled
in a manner that prevents dust
formation. By adding a definition of
"lead bearing material" to the rule, we
have clarified and quantified the
definition of "materials storage and
handling area."
The EPA is using the Toxicity
Characteristic Leaching Procedure
(TCLP), EPA Method 1311 to measure
which materials are lead-bearing, and
using the characteristic level of 5.0 mg/
I (in the extract from the test) as the
specific level for being lead-bearing. See
40 CFR 261.24. This assures that only
materials with at least 100 ppm total
lead will be considered to be 'leadbearing'. See EPA Method 1311 section
2.2 which describes that the liquid to
solid ratio of material tested should be
20:1 (i.e. 5 mg/1 in the TCLP extract is
equal to at least 100 ppm in the material
being tested). The specific definition of
lead bearing material chosen ensures
that materials that contain relatively
substantial amounts of lead (0.01
percent) are included while minimizing
additional testing burden for facilities
who must determine what does or does
not meet the definition. Testing burden
is minimized because facilities already
use the TCLP to determine whether or
not the wastes they manage are
hazardous, pursuant to subtitle C of the
Resource Conservation and Recovery
Act. Imposing a different threshold for
defining material as "lead bearing"
could thus impose duplicative or
conflicting requirements between
subpart X and other regulatory regimes.
Furthermore, the TCLP is a test protocol
which includes a grinding step, which
is a conservative measure of
determining whether a material could
generate fugitive emissions. See Method
1311 steps 7.1.3 and 7.2.10.
To address the concern that fabric
filter dust in enclosed conveyors,
containers or wet slurries must be
additionally handled only inside an
enclosure, we have added an exemption
from the enclosure requirement for
materials that are "lead bearing" but are
not expected to generate fugitive lead
dust. While these materials do contain
lead in amounts that could otherwise
meet the definition of lead bearing
material, they are either in a stabilized

form that will not create fugitive dust or
in a container that prevents fugitive dust
formation. These materials include: lead
ingot products, stormwater and
wastewater, intact batteries, lead bearing
material that is stored in closed
containers or enclosed mechanical
conveyors, and clean battery casing
material.
Comment: One commenter requested

a change to the definition of "plant
roadway" specifically to exclude
finished lead product storage areas and
roadways or traffic areas located within
enclosed buildings.
Response: We accept the commenter's
suggestion to exclude roadways or
traffic areas located within enclosed
buildings from the definition of "plant
roadway." However, we do not believe
that it is appropriate to exclude finished
lead product storage areas since these
areas may be located in close proximity
to areas that may require cleaning (e.g.,
slag storage areas).
Comment: One commenter requested
a change to the definition of process
vent. As currently drafted, it appears
overly broad and could lead to
confusion concerning the ventilation
systems that must be tested.
Response: We have made revisions to
the regulatory text to clarify that the
term "process vent" includes various
process vents and vents from buildings
containing lead bearing material. Vents
from office or other non-process areas
are not considered to be process vents.
Comment: Two comments were
received on the terminology used for a
lead CEMS. According to the
commenter, "Paragraph 63.548(m)
specifies that lead CEMS be 'continuous
emission rate monitors.' The standard is
a concentration standard, not an
emission rate standard, so the term
"continuous emission rate monitor" is
not appropriate". Since flow and
concentration monitors are needed to
calculate compliance with the flow
weighted average, one commenter
recommended a requirement for flow
and concentration monitors rather than
citing a type of monitoring system that
is not applicable to the standard.
commenter that the term continuous
emissions rate monitor is not
appropriate. We have replaced the term
"continuous emissions rate monitor"
with "continuous emissions monitoring
system."
Comment: Two commenters noted
that the term "accidental release" is not
defined in the rule. The commenters
recommended that the EPA use the
CERCLA reportable quantity threshold
of 10 pounds to define an accidental

release of lead-containing dust. Two
commenters recommended that the
requirement to initiate cleaning within
one hour of a release be changed to
require that the facility initiate cleaning
activities within one hour after

discovery of an accidental release.
Response: We accept the commenters'
suggestion to use the CERCLA
reportable quantity threshold of 10
pounds to define an accidental release
of lead-containing dust. We also accept
the commenters' suggestion to require
initiation of cleaning within one hour of
discovery of an accidental release.
Comment: One commenter
recommended that the definition of
"maintenance activity" be changed from
"any of the following routine
maintenance and repair activities that
generate fugitive lead dust:" to "any of
the following maintenance and repair
activities when they generate fugitive
lead dust:"
Response: We do not agree with the
commenter's proposed change to the
definition of "maintenance activity." If
this definition was adopted, the facility
would be allowed to proceed with a
maintenance activity and then, if the
activity began generating dust, controls
would need to be adopted but
otherwise-controllable lead emissions
would be released to ambient air.
However, we have modified the
definition to read "any of the following
routine maintenance and repair
activities that could generate fugitive
lead dust." This definition ensures that
proactive, rather than reactive, actions
would be taken for activities with the
potential to generate lead dust.
Comment: One commenter stated that
a definition of lead-bearing material
should be added and should include
such characteristics as the material
should be semi-granular, have a lead
content of greater than 10 percent, and
produce visible fugitive emissions when
handled or transported.
Response: As noted above, we have
added a definition of lead-bearing
material to the regulatory text. However,
we believe that a 10 percent lead
content is too high. We have defined
lead-bearing material in the rule as
material with lead content of 5 mgll or
greater as measured by the TCLP
(Method 1311), which means that
materials would need to contain at least
100 ppm of lead. This is equivalent to
the toxicity characteristic level for a
hazardous waste containing lead as
defined at 40 CFR 261.24.
Comment: One commenter noted that
40 CFR 63.544(d) of the proposed rule
makes reference to the requirements in
subsections (d)(1) through (d)(4).
However, as the commenter points out,
573
there are eight subsections applicable to commenter contends that the East Penn
40 CFR 63.544(d) and subsection (d)(2)
facility currently conducts biannual
testing for lead and still maintains
further refers to meeting requirements
through (d)(B).
compliance with the lead NAAQS and
Response: The EPA agrees with the
applicable subpart X emission
commenter and has made the suggested standards. The commenter further
change in the regulatory text at 40 CFR
argued that the EPA has not
63.544(d).
demonstrated any environmental
Comment: One commenter noted that benefits associated with annual testing
proposed 40 CFR 63.543(i) requires that versus biannual testing for well
sources conduct testing for process
controlled facilities. The commenter
vents, "* * * under such conditions as contends that the East Penn facility has
the administrator specifies based on
made strategic decisions to invest
representative performance of the
capital resources to reduce lead
affected source for the period being
emissions and that the removal of the
tested." The commenter requested that
biannual testing exemption would
the EPA replace this "cumbersome"
unnecessarily increase the annual
language with "* * * under normal
operating costs ofthe facility.
operating conditions."
Response: We have modified the text
commenter that a biannual testing
to require sources to conduct testing
exemption for well performing facilities
"under maximum representative
can be retained in this NESHAP. We
operating conditions for the process."
have added an exemption for any stacks
that report a lead concentration of 0.1
The term maximum is included to
ensure that the testing occurs during a
mg/dscm or lower allowing biannual
testing. The concept of decreased testing
time period of full production at the
frequency for well-performing sources
facility that is representative of normal
operation. This language allows sources was discussed in the proposal as a part
of the fence line monitoring approach
to develop test conditions which
(see 76 FRat 29057).
approximate the variability they can
Comment: Two commenters disagreed
reasonably encounter during normal
with the annual testing requirement for
operation. Parametric monitoring
total hydrocarbons (THC). One
requirements, based on parameters
commenter stated that since the risk
measured during the performance test,
assessment did not identify significant
would then reasonably reflect this
risks drivers among the organic HAP
operating variability and afford the
represented by THC, the THC testing
source flexibility in its day-to-day
should be conducted concurrently with
operation. Cf. Cement Kiln Recycling
Coalition v. EPA, 255 F.855, 866-67 (DC the dioxin and furan tests every 5 years
with continuous compliance
Cir. 2001) (upholding use of such data
demonstrated via afterburner
to set MACT standards under CAA
temperature monitoring. Another
section 112(d)(3)).
Comment: One commenter noted that commenter stated that requiring annual
THC tests is redundant and unnecessary
Table 3 of the proposed rule is
if a CEMS is installed and operated per
improperly labeled, "table 3 to Subpart
40 CFR 63.543(k).
X of Part 60-Toxic Equivalency
Response: We disagree with the
Factors." As the commenter points out,
commenter that THC testing should be
the table is included in 40 CFR part 63,
conducted on the same schedule as
not 40 CFR part 60.
dioxins and furans. Testing for THC is
commenter and has made the suggested substantially less expensive than testing
for dioxins and furans and we do not
change to Table 3 of the proposed rule.
believe annual THC testing presents an
Comment: Two commenters pointed
out that there is a typographical error in unnecessary burden. However, we have
added an exemption allowing biannual
Equation 2 of the proposed rule at 40
testing of THC for any stack that reports
CFR 63.543(c). The definition of the
concentrations that are less than half of
term CEu includes the word lead,
though the equation is not applicable to the applicable emissions limit. Annual
stack testing is obviously not required if
lead.
a THC CEMS is used.
commenter and has adjusted the
that the EPA should allow facilities to
definition of the term CEu in Equation
use EPA Method 12 for lead compounds
2 of 40 CFR 63.543(c) accordingly.
to calculate compliance with the
G. Emission Testing Methods and
process vent limitations in order to be
Frequency
consistent with testing requirements
Comment: Two commenters stated
that exist in many facility permits.
their support for biannual testing for
Response: We agree that facilities
should be given the option of using EPA
well performing facilities. One
574
Method 12. The regulatory text has been

edited accordingly.
that the BLDS exemption for baghouses
equipped with HEPA filters should be
retained. One commenter stated that to
install BLDS's on HEPA filtered stacks
is excessive and unwarranted. The
commenter also believes that annual
stack testing for sources equipped with
HEPA filtration is not necessary.
Another commenter argued that the cost
associated with using BLDS is not
commensurate with their limited ability.
The commenter stated that BLDS's are
inherently reactive whereas baghouses
equipped with HEPA filtration actually
prevent emissions in the event of a bag
failure. Further, the commenter argued
that HEP A secondary collection
pressure differential is an effective
method to monitor baghouse
performance. The commenter contends
that the BLDS requirement will pose an
unnecessary and redundant burden on
facilities that proactively chose to install
HEP A filtration systems and that the
proposed revisions are a disincentive for
facilities to install HEPA filters. Finally,
the commenter stated that the proposed
BLDS requirement and the elimination
of the BLDS exemption for HEP A filters
are arbitrary and not supported by test
data.
commenters that baghouses equipped
with HEPA filters do not need bag leak
detection systems as well. The
measurement of pressure drop across a
HEPA filter provides the indicia of
superior performance for determining
continuous compliance. However, we
disagree that sources should be exempt
from annual stack testing based solely
on the use of a HEP A filter. The
emission standard includes calculation
of a facility-wide emission average and
testing the process vents subject to that
limit is needed to determine
compliance. Monitoring pressure drop
across HEP A filters is a means for
determining continuous compliance,
similar to a bag leak detection system in
baghouses without HEPA filters. In both
cases, periodic stack tests are necessary
to ensure that lead emissions are below
the applicable emission standard.
However, we note that we have
included a biannual testing exemption
for stacks that report lead
concentrations less than 0.1 mg/ dscm.
H. Startup, Shutdown, and Malfunction

Comment: One commenter expressed
concerns related to the total
hydrocarbon (THC) standard during
start-up periods. According to the
commenter, it will be impossible to
meet the minimum temperature at
which compliance with the THC

standard has been demonstrated during
startup of a furnace. The blast furnace
crucible must be heated for up to 12
hours before raw materials can be
charged. The reverberatory furnace cold
startups occur over an extended period
also. There is no introduction of
feedstock during the warm-up process
and, therefore, no emissions of processrelated THC emissions. Emissions
during this time period will consist
entirely of combustion products
associated with the fuels natural gas and
foundry coke. The afterburner or post
combustion system are equipped with
rudimentary burners that provide
supplementary heat but rely on the
excess heat contained within the
combined furnace exhaust gases during
production operations to achieve an
afterburner temperature that assures the
efficient combustion of the process offgases. The afterburner supplementary
burners are not sufficient to maintain
the required temperature during furnace
startup and shutdown sequences. The
proposed revisions to subpart X should
include definitions of startup and
shutdown for collocated blast and
reverberatory furnaces that clearly
define when alternative THC standards
would apply and how compliance with
an alternative standard is monitored.
Response: The EPA has revised this
final rule to require sources to meet a
work practice standard that requires the
development of standard operating
procedures designed to minimize
emissions of THC for each start-up and
shutdown scenario anticipated for all
units subject to THC emission limits.
We considered whether temperature
(the metric used to determine
continuous compliance for the THC
standard in this rule) or performance
testing and enforcement of numeric
emission limits would be practicable
during periods of startup and shutdown.
The EPA determined that there are a
number of significant technical
challenges associated with emissions
measurements of THC emissions during
periods of startup and shutdown for this
industry. These challenges make
establishing and complying with
numerical emissions limits
impracticable.
There are multiple factors informing
this decision. Temperature is obviously
an inappropriate measure to determine
continuous compliances for these
furnaces during periods of startup and
shutdown when the furnaces are being
heated during startup (or cooled during
shutdown) from ambient to the steady
state operating temperature. The
furnaces are heated during periods of
startup through slow feeding of natural
gas and small amounts of coke with no

lead acid batteries fed to the furnace. It
is impossible for furnace exhaust to be
maintained within the window
prescribed by 40 CFR 63.548(h)(4)
However, the inability to maintain this
temperature in secondary lead smelter
furnace exhaust does not indicate high
emissions of THC during these periods.
In fact, the emissions are likely minimal
because there are no plastics being fed
to the furnace and minimal fuel use
(mostly natural gas). Temperature is
thus not the appropriate measure of
continuous compliance during these
periods and we are unaware of another
metric that can be used to determine
continuous compliance with a
numerical standard for these furnaces
during startup and shutdown. In terms
of staff scheduling, test crews would
have to be on-site and ready to begin
THC testing at the beginning cif a period
of startup or shutdown, have multiple
test crews on site for startup or
shutdown periods lasting longer than
12 hours, and be prepared to stop and
restart measurements to coincide with
process trips that can occur during
startup and shutdown of secondary lead
smelting furnaces. Since startups and
shutdowns of these furnaces are not
necessarily scheduled long in advance,
scheduling such testing to coincide with
the beginning of startup or shutdown
periods would require having testing
crews on-site nearly full time. These
staff resource issues would dramatically
increase the cost of testing during
startup and shutdown periods.
For these technical and economic
reasons, we have determined that
conducting manual test methods during
these secondary lead furnace startup or
shutdown periods for THC to be
impracticable within the meaning of
CAA section 112(h)(2)(B). As a result,
we have established a separate work
practice standard for emissions of THC
This work practice standard requires the
development of standard operating
emissions of THC for each start-up and
shutdown scenario anticipated for all
units subject to THC limits.
This startup and shutdown work
practice applies only to the THC
emission limits. We have no reason to
provide startup or shutdown provisions
for emissions of lead .from any source
because the fabric filters used to control
particulate and lead emissions are not
less effective during startup or
shutdown periods (nor would we expect
sources to have any difficulty meeting
the lead standard since lead-bearing
feed is not charged during either startup

or shutdown conditions). Additionally,
the metrics for determining continuous
compliance with these standards are
appropriate for periods of startup and
shutdown. Therefore, we have
established the separate work practice
standard only for THC for periods of
startup and shutdown.
During these periods, we do not
believe dioxins and furans can form
because there are no chlorinated plastics
or flame-retardants being fed as these
materials are only introduced as
impurities with the lead feed material.
Therefore, we have not included a
standard for dioxins and furans during
periods of startup and shutdown
because these pollutants are not
emitted.
Periods of startup, normal operations,
and shutdown are all predictable and
routine aspects of a source's operations.
However, by contrast, malfunction is
defined as a "sudden, infrequent, and
not reasonably preventable failure of air
pollution control and monitoring
equipment, process equipment or a
manner* * *" (40 CFR 63.2). The EPA
has determined that malfunctions
should not be viewed as a distinct
operating mode and, therefore, any
emissions that occur at such times do
not need to be factored into
development of CAA section 112(d)
standards, which, once promulgated,
apply at all times.
VI. Sununary of Cost, Environmental,
and Economic Impacts
A. What are the affected facilities?

We anticipate that the 15 secondary
lead smelting facilities currently or
recently operating in the continental
United States and Puerto Rico as well as
one facility currently under
construction in South Carolina will be
affected by this final rule.
B. What are the air quality impacts?
The EPA estimated the emissions
reductions that are expected to result
from these final amendments to the
1997 NESHAP compared to the 2009
baseline emissions estimates calculated
based on ICR data. The ICR data and
RTR emissions memo are available in
the docket to this action. A detailed
documentation of the analysis can be
found in the document in the docket
titled: Cost Impacts of the Revised
Smelting Source Category.
Emissions of lead and arsenic from
secondary lead smelters have declined
over the last 15 years as a result of
federal rules, state rules and on the
industry's own initiative. The final rule
575
will cut lead and arsenic emissions by

estimate methods used for this analysis
and is available in the docket.
an estimated 68 percent from current
The majority of the capital costs
actual emission levels based on the ICR
estimated for compliance with this
data collected for this rulemaking. The
final rule will result in estimated annual action are for purchasing new
enclosures and the associated control
lead emissions redm lions of 7.2 tpy
devices that would be required for these
from process and process fugitive
enclosures. For each facility, we
sources and annual lead emissions
estimated the square footage of new
reductions of 6.4 tpy from fugitive dust
enclosures required based on the size of
sources from 2009 bnseline emissions
(for a total annual reduction of 13.6 tons enclosures currently in place compared
to facilities that we considered to be
per year). The expected annual
reduction in total nwtal HAP 8 is 8.2 tpy totally enclosed with a similar
production capacity. We further
from process and process fugitive
assumed that the facilities that required
sources and the expected annual
a substantial degree of new enclosure
reduction is 7.2 tpy from fugitive dust
would re-configure their facilities,
sources (total annual metal HAP
particularly the storage areas, to reduce
reductions are estimated at 15.4 tons).
We estimate that these controls will also the footprint of areas subject to total
enclosure requirements.
reduce emissions of particulate matter
Based on our analysis of the facility
(PM) (combined total affine and coarse
configurations,
seven facilities were
PM) by 135 tpy.
Based on the emissions data available considered already to be totally
enclosed. Two facilities are currently
to the EPA, we believe that all facilities
installing enclosure structures and
will be able to comply with the final
equipment that we anticipate will meet
emissions limits for THC and D/F
the requirements. Consequently, the
without additional controls. However,
capital costs do not include estimates
we expect that emissions reductions
for these nine facilities. We estimate
will occur due to increased
that the remaining six facilities will
temperatures of afterburners and from
improved work practices. Nevertheless, require new building installations,
thereby incurring capital costs. For the
it is difficult to estimate accurate
one facility currently under
reductions from those actions and,
construction, we estimated one
therefore, we are not providing
additional baghouse would be required.
quantified estimates of reductions for
Typical enclosure costs were
THCandD/F.
estimated using information and
C. What are the cost impacts?
algorithms from the Permanent Total
Enclosures chapter in the EPA Air
As a result of this final rule, certain
Pollution Control Cost Manual. New
secondary lead smelling facilities are
baghouse costs were estimated using a
expected to incur capital costs for the
model based primarily on the cost
following types of cJntrol measures:
information for recent baghouse
replacement of existing baghouses with
installations submitted by facilities in
new, higher-performing baghouses,
the
ICR survey. The total capital cost
replacement of bags in existing
estimate for the enclosures, the
baghouses with better-performing
ductwork system, and control devices at
materials, construction of new
the
seven facilities is approximately $38
enclosures for processes not currently
million, at an annualized cost of $6.4
enclosed, modification of partially
million in 2009 dollars (an average of
enclosed structures to meet the
about
$1 million per facility).
requirements of total enclosure, and
We also estimated annual costs for the
installation of fabric filters on
required work practices in this action.
enclosures.
The capital costs for each facility were Based on the ICR survey information,
we estimated that additional costs
estimated based on the number and
would be required to implement the
types of upgrades we estimate that
work practices at 12 of the 16 facilities.
facility will require. Each facility was
evaluated for its ability to meet the final The total annual costs to implement the
fugitive emissions work practices are
limits for lead emissions, THC
approximately $3 million per year.
emissions, D/F emissions, and fugitive
For compliance with the stack lead
dust emissions. The memorandum
concentration limit, we compared each
titled: Cost Impacts of the Revised
stack emission point's lead
concentration (reported to the EPA
Smelting Source Category includes a
under the ICR) to the requirement of 1.0
complete description of the cost
mg/dscm oflead for any one stack. If the
reported concentration exceeded 0.5
Total metal HAP consists ofantimonv, arsenic,
mg/dscm (one half the standard), we
beryllium, cadmium, chromium, lead, manganese,
nickel and selenium.
assumed that the facility would either
576
upgrade the baghouse with new bags

and additional maintenance or
completely replace the baghouse,
depending on the age of the baghouse
(as explained further below). This cost
estimate presents an upper-end estimate
of the cost impacts of the final rule that
assumes facilities will strive to operate
well below the standard to ensure
process variability does not cause
emission rates approaching the
maximum level allowed by the
standard. If the baghouse was less than
10 years old and the lead concentration
in the outlet was not appreciably over
one half the standard (i.e., 0.5 mg/
dscm), we assumed that the baghouse
would require maintenance and bag
replacement. If the baghouse was more
than 10 years old and the lead
concentration was appreciably over the
standard, we assumed the baghouse
would be replaced. We then compared
each facility's emissions with the flowweighted, facility-wide concentration
limit of 0.20 mg/dscm using the
assumption that baghouses needing
replacement based on the 1.0 mg/dscm
individual stack limit would be
replaced with units that performed at
least as well as the average baghouse

identified in our data set. These
analyses indicate that nine baghouses
would need to be replaced, and two
baghouses would require additional
maintenance. To estimate costs, we used
a model based primarily on the cost
information submitted in the ICR for
recent baghouse installations in this
industry. We assumed an increase in
maintenance cost based on more
frequent bag changes (from once every
5 years to once every 2 years). The total
capital cost for nine new baghouses at
five facilities is estimated to be
approximately $11.5 million, and total
annual costs were estimated to be
approximately $2.7 million.
New limits are being promulgated for
THC and D/F emissions from
reverberatory and electric furnaces. We
anticipate all operating affected units
will be able to meet the limits without
installing additional controls; however,
we have estimated additional costs of
$260,000 per year for facilities to
increase the temperature of their
existing afterburners to ensure
continuous compliance with the
standards. (We also considered this
additional energy use as part of our

analysis of whether the standards are
warranted under CAA section 112(d)(6).
See Cost Impacts of the Revised
docket ID EP A-HQ-OAR-2011-0344, at
page 7.)
The capital cost estimated for
additional differential pressure monitors
for total enclosures is $106,000. The
cost for all additional monitoring and
recordkeeping requirements, including
the baghouse 'monitoring, is estimated at
$791,000.
The total annualized costs for the
final rule are estimated at $13.4 million
(2009 dollars). Table 5 of this preamble
provides a summary of the estimated
costs and emissions reductions
associated with the final amendments to
the Secondary Lead Smelting NESHAP
presented in today's action. More detail
on the estimated costs of to day's final
rule can be found in Cost Impacts of the
revised NESHAP for the Secondary Lead
the docket ID EPA-HQ-OAR-20110344.
TABLE 5-ESTIMATED COSTS AND REDUCTIONS FOR THE PROMULGATED STANDARDS IN THIS ACTION
Final amendment
Estimated
capital cost
($MM)
Revised stack lead emissions limit ...
11.5
Total enclosure of fugitive emissions

sources.
Fugitive control work practices .........
38
THC and D/F concentration limits .....

Additional testing and monitoring ......
0
0.3
Estimated
annual cost
($MM)
Total HAP emissions reductions

(tons per year)
2.7 8.2 of metal HAP (7.2 of which is

lead).
6.4 5.2 of metal HAP a (4.6 of which is
lead).
3.0 2.0 of metal HAP a (1.8 of which is
lead).
0.3 29.6b .................................................
0.79 N/A ....................................................
Cost effectiveness in $ per ton total

HAP reduction
($ per pound)
$0.33 MM per ton, ($170 per
pound).
$1.0 MM per ton, ($500 per pound).
$1.5 MM per ton, ($750 per pound).
$0.01 MM per ton.
N/A.
Metal HAP consisting of antimony, arsenic, beryllium, cadmium, chromium, lead, manganese, nickel, and selenium.
bBased on total organic HAP reductions as a co-benefit of compliance with standards for dioxins and furans.
The EPA notes that the cost
effectiveness of the controls for stack
emissions of metal HAP are within the
range of values the agency has
determined to be reasonable in other
section 112 rules. Indeed, EPA
determined that a value of $175 per
pound of metal HAP removed was
reasonable when determining standards
for the iron and steel foundry source
category, an area source standard
reflecting the less rigorous Generally
Available Control Technology under
section 112(d)(5). See 73 FRat 249.
Thus, EPA regards the cost effectiveness
of the standards for metal HAP here as
reasonable, for purposes of the
standards adopted pursuant to sections
112()(2) (ample margin of safety
determination) and 112(d)(6). The
measures required to control fugitive
emissions are also cost effective, based

largely on the fact that much of the
industry has implemented some or all of
the measures required in this final rule.
The cost effectiveness for THC and D/
F is presented as a point of information.
Since those standards are MACT floor
standards adopted pursuant to sections
112(d)(3), considerations of cost and
cost-effectiveness played no part in
EPA's consideration.
D. What are the economic impacts?

We performed an economic impact
analysis for secondary lead consumers
and producers nationally. Most
secondary lead producers will incur
annual compliance costs of much less
than 1 percent of their sales, but one
firm will incur costs of greater than 1
percent. Both demand and supply in
this sector are generally inelastic to

price changes as shown in the Economic
Impact Analysis at page 4. Thus, if
producers could pass through the entire
cost of the rule to consumers, we would
expect prices to increase by no more
than one percent, with no change in
output. Conversely, if producers could
not pass through any of the cost by
increasing the price, we would expect
output to decline by less than one
percent.
Hence, the overall economic impact of
this proposed rule should be low on
most of the affected industry and its
consumers. For more information,
please refer to the Economic Impact
Analysis for this rulemaking that is in
docket ID EPA-HQ-OAR-2011-0344.
E. What are the benefits?

The estimated reductions in lead
emissions that will be achieved by this
final rule will provide significant
benefits to public health. For example,
the EPA's 2008 Regulatory Impact
Analysis (RIA) that was completed for
the lead NAAQS (which is available in
the docket for this action and also on
the EPA's Web site) 9 described
monetized benefits calculated for that
action associated with reduced exposure
to lead.
As noted in that RIA, there were also

several other lead-related health effects
for which the EPA was unable to
quantify a monetized benefitparticularly among adults. These
potential impacts included
hypertension, non-fatal strokes,
reproductive effects and premature
mortality, among others.
When viewed in this context, the
reductions in concentrations of ambient
lead that will be achieved with this RTR
for secondary lead smelters are expected
to provide important benefits to both
children and adults. The EPA did not
quantify these benefits because this rule
did not trigger the requirement for
conducting an RIA under Executive
Order 12866, in addition to resource
and data limitations for this rule.
However, as noted at proposal, this rule
should result in areas attaining the lead
NAAQS where the secondary lead
smelting source dominates the areas'
ambient lead concentrations. See 76 FR
at 29063-64. Although these standards
are not adopted to implement the lead
NAAQS, and rest on legal and policy
justifications that are unrelated to the
requirements for adopting, revising, and
implementing a NAAQS (e.g., CAA
sections 112(d)(2), (3), 6 and CAA
section 112(f)(2) as opposed to CAA
sections 107-110), nonetheless these
rules will aid in the attainment ofthe
lead NAAQS.1o
In addition to the benefits likely to be
achieved for lead reductions, we also
estimate that this final RTR rule will
achieve about 39 to 63 tons of
reductions in PM2.s emissions as a cobenefit of the HAP reductions annually.
See Development of the RTR Emissions
Dataset for the Secondary Lead
Smelting Source Category at section 8.3,
which is available in the docket for
information on how the PM2.s emission
9 http://www.epa.gov/ttn/ecas/regdata/RIAsl
finalpbriach5.pdf.
10 It is possible that SIPs may require some of the
same types of controls on these sources (or may rely
on the controls in these rules as part of a control
strategy). EPA cannot, of course, pre-judge the SIP
process. What is clear is that this rule should
contribute significantly to attainment of the lead
NAAQS.
reductions were calculated based on

total PM reductions. Reducing exposure
to PM2.s is associated with significant
human health benefits, including
avoiding mortality and respiratory
morbidity. Researchers have associated
PM2.s exposure with adverse health
effects in numerous toxicological,
clinical and epidemiological studies
(U.S. EPA, 2009).n When adequate data
and resources are available and an RIA
is required, the A generally quantifies
several health effects associated with
exposure to PM2.s (e.g., U.S. EPA,
2010) 12 . These health effects include
premature mortality for adults and
infants, cardiovascular morbidities such
as heart attacks, hospital admissions,
and respiratory morbidities such as
asthma attacks, acute and chronic
bronchitis, hospital and emergency
department visits, work loss days,
restricted activity days, and respiratory
symptoms. Although the EPA has not
quantified certain outcomes including
adverse effects on birth weight, pre-term
births, pulmonary function and other
cardiovascular and respiratory effects,
the scientific literature suggests that
exposure to PM2.s is also associated with
these impacts (U.S. EPA, 2009).
Finally, the final rule will provide
human health benefits through
reductions in arsenic and cadmium
emissions, as well as reductions in
emissions of organic HAP (including
dioxins and furans).
VII. Statutory and Executive Order
Reviews
A. Executive Orders 12866: Regulatory
Planning and Review, and Executive

Order 13563: Improving Regulation and
Regulatory Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is a
"significant regulatory action." This
action is a significant regulatory action
because it raises novel legal and policy
issues. Accordingly, the EPA submitted
this action to the Office of Management
and Budget COMB) for review under
Executive Order 12866 and Executive
Order 13563 (76 FR 3821, January 21,
2011), and any changes made in
response to OMB recommendations
"U.S. Environmental Protection Agency (U.S.
EPA). 2009. Integrated Science Assessment for
Particulate Matter (Final Report). EPA-600-R-OB139F. National Center for Environmental
Assessment-RTF Division. <http://cfpub.epa.gov/
ncea/cfmlrecordisplay.cfm?deid=216546>.
12 U.S. Environmental Protection Agency (U.S.
EPA). 2010. Regulatory Impact Analysis for the
Proposed Federal Transport Rule. Office of Air
Quality Planning and Standards, Research Triangle
Park, NC. <http://www.epa.gov/ttn/ecas/regdata/
RlAs/proposoltrriaJinal.pdf>.
577
have been documented in the docket for

this action.
B. Paperwork Reduction Act

The information collection
requirements in this rule have been
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. The Information Collection
Request (ICR) document prepared by the
EPA has been assigned EPA ICR number
1686.09. The information collection
requirements are not enforceable until
OMB approves them. The information
requirements are based on notification,
recordkeeping, and reporting
requirements in the NESHAP General
Provisions (40 CFR part 63, subpart A),
which are mandatory for all operators
subject to national emissions standards.
These recordkeeping and reporting
requirements are specifically authorized
by CAA section 114 (42 U.S.C. 7414).
All information submitted to the EPA
pursuant to the recordkeeping and
reporting requirements for which a
claim of confidentiality is made is
safeguarded according to agency
policies set forth in 40 CFR part 2,
subpart B.
We are promulgating new paperwork
requirements to the Secondary Lead
Smelting source category in the form of
stack testing for THC and D/F as
described in 40 CFR 63.543(h)-(k). In
conjunction with setting THC limits for
reverberatory and electric furnaces,
additional monitoring and
recordkeeping is required for furnace
outlet temperature on these units. We
believe temperature monitors currently
exist in these locations and that the
facilities will not incur a capital cost
due to this requirement (and received
no comments to indicate otherwise).
Additionally, increased monitoring is
required for demonstrating negative
pressure in all total enclosures. To
provide the public with an estimate of
the relative magnitude ofthe burden
associated with an assertion of the
affirmative defense position adopted by
a source, the EPA has provided
administrative adjustments to this ICR
to show what the notification,
recordkeeping and reporting
requirements associated with the
assertion of the affirmative defense
might entail. The EPA's estimate for the
required notification, reports and
records for any individual incident,
including the root cause analysis, totals
$3,141 and is based on the time and
effort required of a source to review
relevant data, interview plant
employees, and document the events
surrounding a malfunction that has
caused an exceedance of an emissions
578
limit. The estimate also includes time to

produce and retain the record and
reports for submission to the EPA. The
EPA provides this illustrative estimate
of this burden because these costs are
only incurred if there has been a
violation and a source chooses to take
advantage ofthe affirmative defense.
Given the variety of circumstances
under which malfunctions could occur,
as well as differences among sources'
operation and maintenance practices,
we cannot reliably predict the severity
and frequency of malfunction-related
excess emissions events for a particular
source. It is important to note that the
EPA has no basis currently for
estimating the number of malfunctions
for which an affirmative defense to
penalties might be asserted. Current
historical records would be an
inappropriate basis, as source owners or
operators previously operated their
facilities in recognition that they were
exempt from the requirement to comply
with emissions standards during
malfunctions. Of the number of excess
emissions events reported by source
operators, only a small number would
be expected to result from a malfunction
(based on the definition above), and
only a subset of excess emissions caused
by malfunctions would result in the
source choosing to assert the affirmative
defense. Thus we believe the number of
instances in which source operators
might be expected to assert the
affirmative defense will be extremely
small. For this reason, we estimate no
more than 2 or 3 such occurrences for
all sources subject to subpart X over the
3-year period covered by this ICR. We
expect to gather information on such
events in the future and will revise this
estimate as better information becomes
available. We estimate 16 regulated
entities are currently subject to subpart
X and will be subject to all standards.
The annual monitoring, reporting, and
recordkeeping burden for this collection
(averaged over the first 3 years after the
effective date of the standards) for these
amendments to subpart X (Secondary
Lead Smelting) is estimated to be
$790,000 per year. This includes 1,600
labor hours per year at a total labor cost
of $347,000 per year, and total non-labor
capital and operation and maintenance
(O&M) costs of $440,000 per year. This
estimate includes performance tests,
notifications, reporting, and
recordkeeping associated with the new
requirements for front-end process vents
and back-end process operations. The
total burden for the federal government
(averaged over the first 3 years after the
effective date of the standard) is
estimated to be 1,150 hours per year at
a total labor cost of $52,000 per year.

Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for the EPA's regulations in 40
CFR are listed in 40 CFR part 9. When
these ICRs are approved by OMB, the
agency will publish a technical
amendment to 40 CFR part 9 in the
Federal Register to display the OMB
control numbers for the approved
information collection requirements
contained in the final rules.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this final rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise that is independently owned
and operated and is not dominant in its
field.
For this source category, which has
the NAICS code 331419 (i.e., Secondary
Smelting and Refining of Nonferrous
Metal (except copper and aluminum)),
the SBA small business size standard is
750 employees according to the SBA
small business standards definitions.
We have estimated the cost impacts and
have determined that the impacts do not
constitute a significant economic impact
on a substantial number of small entities
(see: Small Business Analysis for the
Category, which is available in the
docket for this action).
After considering the economic
impacts of to day's final rule on small
entities, I certify that this action will not
. have a significant economic impact on
a substantial number of small entities.
Two of the eight parent companies
affected are considered a small entity
per the definition provided in this
section. However, we estimate that this
action will not have a significant

economic impact on those companies
(see: Small Business Analysis for the
Category). All other affected parent
companies are not small businesses
according to the SBA small business
size standard for the affected NAICS
code (NAICS 331419).
Although this final rule will not have
a significant economic impact on a
substantial number of small entities, the
EPA nonetheless has tried to reduce the
impact of this rule on small entities. To
reduce the impacts, we are
promulgating stack limits for lead that
allow sources to meet a standard based
on aggregated emissions that are based
on a weighted average approach (with
each stack required to achieve a
specified minimum level of control) and
have been established at the least
stringent levels that we estimate will
still result in acceptable risks to public
health with an ample margin of safety.
Moreover, the compliance testing
requirements were established in a way
that minimizes the costs for testing and
reporting while still providing the
agency the necessary information
needed to ensure continuous
compliance with the standards. For
more information, please refer to Small
Business Analysis for the Secondary
Lead Smelting Source Category, which
is available in docket ID EP A-HQOAR-2011-0344.
D. Unfunded Mandates Reform Act

This action does not contain a federal
mandate under the provisions of Title II
of the Unfunded Mandates Reform Act
of 1995 (UMRA), 2 U.S.C. 1531-1538 for
state, local, or tribal governments or the
private sector. The action would not
result in expenditures of $100 million or
more for state, local, and tribal
governments, in aggregate, or the private
sector in any 1 year. The action imposes
no enforceable duties on any state, local
or tribal governments or the private
sector. Thus, this action is not subject to
the requirements of sections 202 or 205
of the UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments
because it contains no requirements that
apply to such governments nor does it
impose obligations upon them.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
579
V.A of this preamble and the Residual

f. Executive Order 12898: Federal
Risk Assessment for the Secondary Lead Actions To Address Environmental
Justice in Minority Populations and
Smelting Source Category, which is
available in the docket for this action,
Low-Income Populations
for discussions of post-control risks.
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes federal
H. Executive Order 13211: Actions
executive policy on environmental
Concerning Regulations That
justice. Its main provision directs
Significantly Affect Energy Supply,
federal agencies, to the greatest extent
Distribution, or Use
practicable and permitted by law, to
F. Executive Order 13175: Consultation
This action is not a "significant
make environmental justice part of their
and Coordination With Indian Tribal
energy action" as defined in Executive
mission by identifying and addressing,
Governments
Order 13211 (66 FR 28355 (May 22,
as
appropriate, disproportionately high
This action does not have tribal
2001)), because it is not likely to have
and adverse human health or
implications, as specified in Executive
a significant adverse energy effect on the environmental effects of their programs,
Order 13175 (65 FR 67249, November 9, supply, distribution, or use of energy.
policies, and activities on minority
2000). It will not have substantial direct This action will not create any new
populations and low-income
effect on tribal governments, on the
requirements for sources in the energy
populations in the United States.
relationship between the federal
supply, distribution, or use sectors.
The EPA has determined that this
government and Indian tribes, or on the Further, we have concluded that these
final rule will not have
distribution of power and
final rules are not likely to have any
disproportionately high and adverse
responsibilities between the federal
adverse energy effects (and indeed,
human health or environmental effects
government and Indian tribes, as
rejected certain types of control options, on minority or low-income populations
specified in Executive Order 13175.
such as standards based on use of wet
because it increases the level of
Thus, Executive Order 13175 does not
electrostatic precipitators, in part
environmental protection for all affected
apply to this action.
because of adverse energy implications). populations without having any
G. Executive Order 13045: Protection of I. National Technology Transfer and
disproportionately high and adverse
Children From Environmental Health
human health or environmental effects
Advancement Act
Risks and Safety Risks
on any population, including any
Section 12(d) of the National
minority or low-income population.
This action is not subject to Executive
Technology Transfer and Advancement
To examine the potential for any
Order 13045 (62 FR 19885, April23,
Act of1995 (NTTAA), Public Law 104- environmental justice issues that might
1997) because it is not economically
113, 12(d) (15 U.S.C. 272 note) directs
be associated with each source category,
significant as defined in Executive
the
EPA to use voluntary consensus
we evaluated the distributions of HAP
Order 12866. However, the agency does
standards (VCS) in its regulatory
related cancer and non-cancer risks
believe there is a disproportionate risk
activities, unless to do so would be
across different social, demographic,
to children due to current emissions of
and economic groups within the
lead from this source category. Children inconsistent with applicable law or
otherwise impractical. VCS are
populations living near the facilities
living near secondary lead smelters are
technical standards (e.g., materials
where these source categories are
the subpopulation most susceptible to
effects of air-borne lead, as explained in specifications, test methods, sampling
located. The development of
procedures, and business practices) that demographic analyses to inform the
detail in Section V.A above. The
are developed or adopted by VCS
primary NAAQS for lead targets
consideration of environmental justice
bodies. NTT AA directs the EPA to
protection to this population, and is a
issues in EPA rule makings is evolving.
provide Congress, through 0:MB,
In the case of Secondary Lead
reasonable measure for evaluating
explanations when the agency decides
Smelting, we focused on populations
acceptability of risk here, again as
not to use available and applicable VCS. within 50 km of the 15 facilities in this
explained in Section V.A. Modeled
This action involves technical
source category with emissions sources
ambient air lead concentrations, based
standards. The EPA requires use of
on actual emission levels, from about 9
subject to the MACT standard. More
ASME PTC 19.10-1981, "Flue and
specifically, for these populations we
of the 15 facilities in this source
evaluated exposures to HAP that could
category are in excess of the NAAQS for Exhaust Gas Analyses" for its manual
methods of measuring the oxygen or
result in cancer risks of 1-in-1 million
lead. Also, the results of the
carbon dioxide content of the exhaust
demographic analysis indicate that of
or greater, or population exposures to
gas. These parts of ASME PTC 19.10the 84,000 people exposed to a cancer
ambient air lead concentrations above
1981 are acceptable alternatives to EPA
risk greater than 1-in-1 million, the age
the level of the NAAQS for lead. We
Method 3B. This standard is available
compared the percentages of particular
0 to 17 demographic percentage (of 30
from the American Society of
percent) is 3 percentage points higher
demographic groups within the focused
Mechanical Engineers (ASME), Three
than the corresponding national
populations to the total percentages of
Park Avenue, New York, NY 10016percentage for this demographic group
those demographic groups nationwide.
5990.
(of 27 percent). This suggests that
The results of this analysis are
Under 40 CFR 63.7(f) and 40 CFR
children may be at a slightly
documented in the technical report:
63.8 (f) of subpart A of the General
disproportionate risk of exposure to
Risk and Technology Review-Final
Provisions, a source may apply to the
cancer risks from this source category.
Analysis of Socio-Economic Factors for
EPA for permission to use alternative
However, the control measures
Populations Living Near Secondary
promulgated in this notice will result in test methods or alternative monitoring
Lead Smelting Facilities which can be
lead concentration levels at or below the requirements in place of any required
found in the docket for this rulemaking.
lead NAAQS at all facilities, thereby
testing methods, performance
The actions in today's final rule will
mitigating the risk of future adverse
specifications, or procedures in the final significantly decrease the risks due to
health effects to children. See Section
rule.
HAP emissions from this source
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. These final
rules primarily affect private industry,
and do not impose significant economic
costs on state or local governments.
Thus, Executive Order 13132 does not
apply to this action.
580
category for all demographic groups and

mitigate any disproportionate risks due
to those emissions.
K. Congressional Review Act
53.541 Applicability.
53.542 Definitions.
53.543 What are my standards for process
vents?
53.544 What are mv total enclosure
standards?
53.545 What are my standards for fugitive
dust sources?
53.545 Compliance dates.
53.547 Test methods.
53.548 Monitoring requirements.
53.549 Notification requirements.
53.550 Recordkeeping and reporting
requirements.
53.551 Implementation and enforcement.
53.552 Affirmative defense to civil
penalties for exceedance of emissions
limit during malfunction.
Table 1 to Subpart X of Part 53-General
Provisions Applicability to Subpart X
Table 2 to Subpart X of Part 53-Emissions
Limits for Secondary Lead Smelting
Furnaces
Table 3 to Subpart X of Part 53-Toxic
Equivalency Factors
The Congressional Review Act, 5

U.S.C. 801, et seq., as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that, before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The EPA will
submit a report containing this final rule
and other required information to the
.United States Senate, the United States
House of Representatives, and the
Comptroller General of the United
States prior to publication of the final
rule in the Federal Register. A major
rule cannot take effect until 60 days
after it is published in the Federal
Subpart X-National Emission
Register. This action is not a "major
Standards For Hazardous Air
rule" as defined by 5 U.S.C. 804(2). The
Pollutants From Secondary Lead
final rules will be effective on January
Smelting
5, 2012.
List of Subjects for 40 CFR Part 63
Environmental protection,
Administrative practice and procedures,
Air pollution control, Hazardous
substances, Incorporation by reference,
Intergovernmental relations, Reporting
and recordkeeping requirements.
63.541
Applicability.
continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.
2. Section 63.14 is amended by
revising paragraph (p)(2) to read as
follows:
(a) You are subject to this subpart if

you own or operate any of the following
affected sources at a secondary lead
smelter: Blast, reverberatory, rotary, and
electric furnaces: refining kettles;
agglomerating furnaces; dryers; process
fugitive emissions sources; buildings
containing lead bearing materials; and
fugitive dust sources. The provisions of
this subpart do nol apply to primary
lead processors, lead refiners, or lead
remelters.
(b) Table 1 to Lhis subpart specifies
the provisions of subpart A of this part
that apply to owners and operators of
secondary lead smelters subject to this
subpart.
(c) If you are subject to the provisions
of this subpart, you are also subject to
title V permitting requirements under 40
CFR parts 70 or 71, as applicable.
(d) Emissions standards in this
subpart apply at all times.
63.14 Incorporations by reference.
63.542
Dated: December 15, 2011.

Lisa P. Jackson,
Administrator.
For the reasons stated in the

preamble, part 63 of title 40, chapter I,
of the Code of Federal Regulations is
amended as follows:
PART 63-[AMENDED]
1. The autKority citation for part 63
(p) * * *
(2) Office Of Air Quality Planning

And Standards (OAQPS), Fabric Filter
Bag Leak Detection Guidance, EPA-454/
R-98-015, September 1997, IBR
approved for 63.548(e)(4),
63.7525(j)(2), and 63.11224(f)(2).
*
*
*
*
*
3. Revise subpart X to read as follows:
Subpart X-National Emission Standards
for Hazardous Air Pollutants From
Sec.
Definitions.
Terms used in this subpart are

defined in the Clean Air Act, in subpart
A of this part, or in this section as
follows:
Affected source means any of the
following sources at a secondary lead
smelter: Blast, reverberatory, rotary, and
electric furnaces; refining kettles;
agglomerating furnaces; dryers; process
fugitive emissions sources; buildings
containing lead bearing materials; and
fugitive dust sources.
Affirmative defense means, in the
context of an enforcement proceeding, a
response or defense put forward by a
defendant, regarding which the

defendant has the burden of proof, and
the merits of which are independently
and objectively evaluated in a judicial
or administrative proceeding.
Agglomerating furnace means a
furnace used to melt into a solid mass
flue dust that is collected from a
.baghouse.
Bag leak detection system means an
instrument that is capable of monitoring
particulate matter (dust) loadings in the
exhaust of a baghouse in order to detect
bag failures. A bag leak detection system
includes, but is not limited to, an
instrument that operates on
triboelectric, light scattering,
transmittance or other effect to monitor
relative particulate matter loadings.
Battery breaking area means the plant
location at which lead-acid batteries are
broken, crushed, or disassembled and
separated into components.
Blast furnace means a smelting
furnace consisting of a vertical cylinder
atop a crucible, into which lead-bearing
charge materials are introduced at the
top of the furnace and combustion air is
introduced through tuyeres at the
bottom of the cylinder, and that uses
coke as a fuel source and that is
operated at such a temperature in the
combustion zone (greater than 980
Celsius) that lead compounds are
chemically reduced to elemental lead
metal.
Blast furnace charging location means
the physical opening through which raw
materials are introduced into a blast
furnace.
Collocated blast furnace and

reverberatory furnace means operation
at the same location of a blast furnace
and a reverberatory furnace where the
vent streams of the furnaces are mixed
before cooling, with the volumetric flow
rate discharged from the blast furnace
being equal to or less than that
discharged from the reverberatory
furnace.
Dryer means a chamber that is heated
and that is used to remove moisture
from lead-bearing materials before they
are charged to a smelting furnace.
Dryer transition equipment means the
junction between a dryer and the charge
hopper or conveyor, or the junction
between the dryer and the smelting
furnace feed chute or hopper located at
the ends of the dryer.
Electric furnace means a smelting
furnace consisting of a vessel into which
reverberatory furnace slag is introduced
and that uses electrical energy to heat
the reverberatory furnace slag to such a
temperature (greater than 980 Celsius)
that lead compounds are reduced to
elemental lead metal.
Fugitive dust source means a
stationary source of hazardous air
pollutant emissions at a secondary lead
smelter that is not associated with a
specific process or process fugitive vent
or stack. Fugitive dust sources include,
but are not limited to, roadways, storage
piles, lead bearing material handling
transfer points, lead bearing material
transport areas, lead bearing material
storage areas, other lead bearing
material process areas, and buildings.
Furnace and refining/casting area
means any area of a secondary lead
smelter in which:
(1) Smelting furnaces are located;
(2) Refining operations occur; or
(3) Casting operations occur.
Lead alloy means an alloy in which
the predominant component is lead.
Lead bearing material means material
with a lead content equal to or greater
than 5 mg/1 as measured by EPA
Method 1311 (Under Method 1311, only
materials with at least 100 ppm lead
will be considered to be lead bearing).
Leeward wall means the furthest
exterior wall of a total enclosure that is
opposite the windward walL
Maintenance activity means any of
the following routine maintenance and
repair activities that could generate
fugitive lead dust:
(1) Replacement or repair of
refractory, or any internal or external
part of equipment used to process,
handle or control lead-containing
materials.
(2) Replacement of any duct section
used to convey lead-containing exhaust.
(3) Metal cutting or welding that
penetrates the metal structure of any
equipment, and its associated
components, used to process leadcontaining material such that lead dust
within the internal structure or its
components can become fugitive lead
dust.
(4) Resurfacing, repair or removal of
ground, pavement, concrete, or asphalt.
Materials storage and handling area
means any area of a secondary lead
smelter in which lead-bearing materials
(including, but not limited to, broken
battery components, reverberatory
furnace slag, flue dust, and dross) are
stored or handled between process steps
including, but not limited to, areas in
which materials are stored in open
piles, bins, or tubs, and areas in which
material is prepared for charging to a
smelting furnace.
Natural draft opening means any
permanent opening in an enclosure that
remains open during operation of the
facility and is not connected to a duct
in which a fan is installed.
New source means any affected source
at a secondary lead smelting facility the
581
construction or reconstruction of which

Rotary furnace (also known as a rotary
is commenced after May 19, 2011. A
reverberatory furnace) means a furnace
building that is constructed for the
consisting of a refractory-lined chamber
that rotates about a horizontal axis and
purpose of controlling fugitive
emissions from an existing source is not that uses one or more flames to heat the
considered to be a new source.
walls of the furnace and lead-bearing
scrap to such a temperature (greater
Partial enclosure means a structure
than 980 Celsius) that lead compounds
comprised of walls or partitions on at
are chemically reduced to elemental
least three sides or three-quarters of the
lead metal.
perimeter surrounding stored materials
Secondary lead smelter means any
or process equipment to prevent the
facility at which lead-bearing scrap
entrainment of particulate matter into
material, primarily, but not limited to,
the air.
lead-acid batteries, is recycled into
Pavement cleaning means the use of
elemental lead or lead alloys by
vacuum equipment, water sprays, or a
smelting.
combination thereof to remove dust or
Shutdown means the period when no
other accumulated material from the
paved areas of a secondary lead smelter. lead bearing materials are being fed to
the furnace and smelting operations
Plant roadway means any area of a
secondary lead smelter outside of a total have ceased during which the furnace is
cooled from steady-state operating
enclosure that is subject to vehicle
temperature to ambient temperature.
traffic, including traffic by forklifts,
Smelting means the chemical
front-end loaders, or vehicles carrying
reduction of lead compounds to
whole batteries or cast lead ingots.
elemental lead or lead alloys through
Excluded from this definition are
processing in high-temperature (greater
employee and visitor parking areas,
provided they are not subject to traffic
than 980 Celsius) furnaces including,
but not limited to, blast furnaces,
by vehicles carrying lead-bearing
reverberatory furnaces, rotary furnaces,
materials.
and electric furnaces.
Pressurized dryer breaching seal
means a seal system connecting the
Startup means the period when no led
dryer transition pieces which is
bearing materials have been fed to the
maintained at a higher pressure than the furnace and smelting operations have
inside of the dryer.
not yet commenced during which the
furnace is heated from ambient
Process fugitive emissions source
temperature to steady-state operating
means a source of hazardous air
temperature.
pollutant emissions at a secondary lead
Total enclosure means a containment
smelter that is associated with lead
smelting or refining, but is not the
building that is completely enclosed
primary exhaust stream from a smelting with a floor, walls, and a roof to prevent
furnace, and is not a fugitive dust
exposure to the elements and to assure
source. Process fugitive emissions
containment of lead bearing material
sources include, but are not limited to,
with limited openings to allow access
smelting furnace charging points,
and egress for people and vehicles. The
total enclosure must provide an
smelting furnace lead and slag taps,
refining kettles, agglomerating furnaces, effective barrier against fugitive dust
and drying kiln transition pieces.
emissions such that the direction of air
flow through any openings is inward
Process vent means furnace vents,
and the enclosure is maintained under
dryer vents, agglomeration furnace
vents, vents from battery breakers, vents constant negative pressure.
Vehicle wash means a device for
from buildings containing lead bearing
removing dust and other accumulated
material, and any ventilation system
material from the wheels, body, and
controlling lead emissions.
underside of a vehicle to prevent the
Refining kettle means an open-top
vessel that is constructed of cast iron or inadvertent transfer of lead
contaminated material to another area of
steel and is indirectly heated from
a secondary lead smelter or to public
below and contains molten lead for the
purpose of refining and alloying the
roadways.
Wet suppression means the use of
lead. Included are pot furnaces,
receiving kettles, and holding kettles.
water, water combined with a chemical
surfactant, or a chemical binding agent
Reverberatory furnace means a
refractory-lined furnace that uses one or to prevent the entrainment of dust into
the air from fugitive dust sources.
more flames to heat the walls and roof
Windward wall means the exterior
of the furnace and lead-bearing scrap to
wall of a total enclosure that is most
such a temperature (greater than 980
Celsius) that lead compounds are
impacted by the wind in its most
prevailing direction determined by a
chemically reduced to elemental lead
wind rose using available data from the
metal.
Federal Register I Vol. 77, No. 3 I Thursday, January 5, 2012 I Rules and Regulations
582
closest representative meteorological

station.
process vent gas at or below 0.20

milligrams of lead per dry standard
cubic meter (0.000087 grains of lead per
63.543 What are my standards for
dry standard cubic foot).
process vents?
(c) You must meet the applicable
(a) For existing sources, you must
emissions limits for total hydrocarbons
maintain the concentration of lead
and dioxins and furans from furnace
compounds in any process vent gas at
sources specified in Table 2 of this
or below 1.0 milligrams oflead per dry
subpart. There are no standards for
standard cubic meter (0.00043 grains of dioxins and furans during periods of
lead per dry standard cubic foot). You
startup and shutdown.
must maintain the flow-weighted
(d) If you combine furnace emissions
average concentration of lead
from multiple types of furnaces and
compounds in vent gases from a
these furnaces do not meet the
secondary lead smelting facility at or
definition of collocated blast and
below 0.20 milligrams of lead per dry
reverberatory furnaces, you must
standard cubic meter (0.000087 grains of calculate your emissions limit for the
lead per dry standard cubic foot).
combined furnace stream using
(1) You must demonstrate compliance Equation 2 of this section.
with the flow weighted average
n
emissions limit on a 12-month rolling
average basis, calculated monthly using
the most recent test data available.
i=l
(2) Until 12 monthly weighted average
(Eq. 2)
emissions rates have been accumulated,
calculate only the monthly average
weighted emissions rate.
(3) You must use Equation 1 of this
Where:
section to calculate the flow-weighted
Ca = Flow-weighted average emissions limit
(concentration) of combined furnace
compounds from process vents:
vents.
process vent (no later than 12 calendar

months following the previous
compliance test), unless you install and
operate a CEMS meeting the
requirements of 63.8.
[2) If an annual compliance test
demonstrates that a process vent
emitted lead compounds at 0.10
milligram of lead per dry standard cubic
meter or less during the time of the
annual compliance test, you may submit
a written request to the Administrator
applying for an extension of up to 24
calendar months from the previous
compliance test to conduct the next
compliance test for lead compounds.
(h) Following the initial performance
or compliance test to demonstrate
compliance with the total hydrocarbons
emissions limits in paragraphs (c) and
(f) of this section, you must conduct an
annual performance test for total
hydrocarbons emissions from each
process vent that has established limits
for total hydrocarbons (no later than 12
calendar months following the previous
compliance test), unless you install and
operate a CEMS meeting the
requirements of 63 .8. If an annual
compliance test demonstrates that a
process vent emitted total hydrocarbons
at less than 50 percent of the allowable
n = Number of furnace vents.
limit during the time of the annual
F; = Flow rate from furnace vent i in dry
compliance test, you may submit a
standard cubic feet per minute.
written request to the Administrator
CEu =Emissions limit (concentration) of
pollutant in furnace vent i as specified
applying for an extension of up to 24
in Table 2 of this subpart.
calendar months from the previous
compliance test to conduct the next
(e) If you combine furnace emissions
compliance test for total hydrocarbons.
with the furnace charging process
(i) Following the initial performance
fugitive emissions and discharge them
to the atmosphere through a common
compliance with the dioxins and furans
emissions point, you must demonstrate
emissions limits specified in paragraph
compliance with the applicable total
(c) of this section, you must conduct a
hydrocarbons concentration limit
specified in paragraph (c) of this section performance test for dioxins and furans
at a location downstream from the point emissions from each process vent that
has established limits for dioxins and
at which the two emissions streams are
furans at least once every 6 years
combined.
following the previous compliance test.
(f) If you do not combine the furnace
(j) You must conduct the performance
charging process fugitive emissions with
tests specified in paragraphs (g) through
the furnace process emissions, and
(i) of this section under maximum
discharge such emissions to the
representative operating conditions for
atmosphere through separate emissions
the process. During the performance
points, you must maintain the total
test, you may operate the control device
hydrocarbons concentration in the
at maximum or minimum representative
exhaust gas at or below 20 parts per
operating conditions for monitored
million by volume, expressed as
control device parameters, whichever
propane and corrected to 4 percent
results in lower emission reduction.
carbon dioxide.
Upon request, you must make available
(g) Following the initial performance
to the Administrator such records as
compliance with the lead emissions
may be necessary to determine the
limits specified in paragraph (a) or (b)
conditions of performance tests.
(k) At all times, you must operate and
of this section, you must conduct
maintain any affected source, including
performance tests according to the
associated air pollution control
schedule in paragraph (g)(1) or (2) of
equipment and monitoring equipment,
this section.
(1) Conduct an annual performance
in a manner consistent with safety and
test for lead compounds from each
good air pollution control practices for
L.f;XCELi
ll
L:F;xCi
i=l
(Eq. 1)
Where:
CFWA =Flow-weighted average concentration
of all process vents.
n =Number of process vents.
F; = Flow rate from process vent i in dry
standard cubic feet per minute, as
measured during the most recent
compliance test.
C; = Concentration of lead in process vent i,
as measured during the most recent
compliance test.
(4) Each month, you must use the

concentration of lead and flow rate
obtained during the most recent
compliance test performed prior to or
during that month to perform the
calculation using Equation 1 of this
section.
(5) If a continuous emissions
monitoring system (CEMS) is used to
measure the concentration of lead in a
vent, the monthly average lead
concentration and monthly average flow
rate must be used rather than the most
recent compliance test data.
(b) For new sources that begin
construction or reconstruction after May
19, 2011 you must maintain the
concentration of lead compounds in any
Federal Register/Val. 77, No. 3 /Thursday, January 5, 2012/Rules and Regulations

minimizing emissions. Determination of
whether such operation and
maintenance procedures are being used
will be based on information available
to the Administrator that may include,
but is not limited to, monitoring results,
review of operation and maintenance
procedures, review of operation and
maintenance records, and inspection of
the source.
(1) If you own or operate a unit subject
to emission limits in Table 2 of this
subpart, you must minimize the unit's
startup and shutdown periods following
the manufacturer's recommended
procedures, if available. You must
develop and follow standard operating
emissions of total hydrocarbon for each
startup or shutdown scenario
anticipated. You must submit a signed
statement in the Notification of
Compliance Status report that indicates
that you conducted startups and
shutdowns according to the
manufacturer's recommended
procedures, if available, and the
standard operating procedures designed
to minimize emissions of total
hydrocarbons.
(m) In addition to complying with the
applicable emissions limits for dioxins
and furans listed in Table 2 to this
subpart, you must operate a process to
separate plastic battery casing materials
from all automotive batteries prior to
introducing feed into a furnace.
63.544 What are my total enclosure
standards?
(a) You must operate the process

fugitive emissions sources and fugitive
dust sources listed in paragraphs (a)(1)
through (9) of this section in a total
enclosure that is maintained at negative
pressure at all times and vented to a
control device designed to capture lead
particulate. The total enclosure must
meet the requirements specified in
paragraph (c) of this section.
(1) Smelting furnaces.
(2) Smelting furnace charging areas.
(3) Lead taps, slag taps, and molds
during tapping.
(4) Battery breakers.
(5) Refining kettles, casting areas.
(6) Dryers.
(7) Agglomerating furnaces and
agglomerating furnace product taps.
(8) Material handling areas for any
lead bearing materials except those
listed in paragraph (b) ofthis section.
(9) Areas where dust from fabric
filters, sweepings or used fabric filters
are processed.
(b) Total enclosures are not required
in the following areas: lead ingot
product handling areas, stormwater and
wastewater treatment areas, intact
battery storage areas, areas where lead

bearing material is stored in closed
containers or enclosed mechanical
conveyors, and areas where clean
battery casing material is handled.
(c) You must construct and operate
total enclosures for the sources listed in
paragraph (a) of this section as specified
in paragraphs (c)(1) and (2) of this
section. The total enclosure must be free
of significant cracks, gaps, corrosion or
other deterioration that could cause lead
bearing material to be released from the
primary barrier. Measures must be in
place to prevent the tracking of lead
bearing material out of the unit by
personnel or by equipment used in
handling the material. An area must be
designated to decontaminate equipment
and any rinsate must be collected and
properly managed.
(1) You must ventilate the total
enclosure continuously to ensure
negative pressure values of at least 0.013
mm of mercury (0.007 inches ofwater).
(2) You must maintain an inward flow
of air through all natural draft openings.
(d) You must inspect enclosures and
facility structures that contain any leadbearing materials at least once per
month. You must repair any gaps,
breaks, separations, leak points or other
possible routes for emissions of leaQ. to
the atmosphere within one week of
identification unless you obtain
approval for an extension from the
Administrator before the repair period is
exceeded.
63.545 What are my standards for
fugitive dust sources?
(a) You must prepare, and at all times

operate according to, a standard
operating procedures manual that
describes in detail the measures that
will be put in place and implemented to
control the fugitive dust emissions from
the sources listed in paragraphs (a)(1)
through (7) of this section.
(1) Plant roadways.
(2) Plant buildings.
(3) Accidental releases.
(4) Battery storage area.
(5) Equipment maintenance.
(6) Material storage areas.
(7) Material handling areas.
(b) You must submit the standard
operating procedures manual to the
Administrator or delegated authority for
review and approval when initially
developed and any time changes are
made.
(c) The controls specified in the
standard operating procedures manual
must at a minimum include the
requirements specified in paragraphs
(c)(1) through (7) of this section.
(1) Cleaning. Where a cleaning
practice is specified, you must clean by
583
wet wash or a vacuum equipped with a

filter rated by the manufacturer to
achieve 99.97 percent capture efficiency
for 0.3 micron particles in a manner that
does not generate fugitive lead dust.
(2) Plant roadways and paved areas.
You must pave all areas subject to
vehicle traffic and you must clean the
pavement twice per day, except on days
when natural precipitation makes
cleaning unnecessary or when sand or a
similar material has been spread on
plant roadways to provide traction on
ice or snow. Limited access and limited
use roadways such as unpaved roads to
remote locations on the property may be
exempt from this requirement if they are
used infrequently (no more than one
round trip per day).
(3) Accidental releases. You must
initiate cleaning of all affected areas
within one hour after detection of any
accidental release of lead dust that
exceeds 10 pounds (the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) reportable quantity for lead at
40 CFR 302.4).
(4) Battery storage areas. You must
inspect any batteries that are not stored
in a total enclosure once each week and
move any broken batteries to an
enclosure within 72 hours of
identification. You must clean residue
from broken batteries within 72 hours of
identification.
(5) Materials storage and handling
areas. You must wash each vehicle at
each exit of the material storage arid
handling areas. The vehicle wash must
include washing of tires, undercarriage
and exterior surface of the vehicle
followed by vehicle inspection.
(6) Equipment maintenance. You
must perform all maintenance activities
that could generate lead dust in a
manner that minimizes emissions of
fugitive dust. This must include one or
more of the following:
(i) Performing maintenance inside a
total permanent enclosure maintained at
negative pressure.
[ii) Performing maintenance inside a
temporary enclosure and use a vacuum
system either equipped with a filter
rated by the manufacturer to achieve a
capture efficiency of 99.97 percent for
0.3 micron particles or routed to an
existing control device permitted for
this activity.
(iii) Performing maintenance inside a
partial enclosure and use of wet
suppression sufficient to prevent dust
formation.
(iv) Decontamination of equipment
prior to removal from an enclosure.
(v) Immediate repair of ductwork or
structure leaks without an enclosure if
the time to construct a temporary
584
enclosure would exceed the time to

make a temporary or permanent repair,
or if construction of an enclosure would
cause a higher level of emissions than
if an enclosure were not constructed.
(vi) Activities required for inspection
of fabric filters and maintenance of
filters that are in need of removal and
replacement are not required to be
conducted inside of total enclosures.
Used fabric filters must be placed in
sealed plastic bags or containers prior to
removal from a baghouse.
(7) Material transport. You must
collect and transport all lead bearing
dust (i.e. lead bearing material which is
a dust) within closed conveyor systems
or in sealed, leak-proof containers
unless the collection and transport
activities are contained within a total
enclosure. All other lead bearing
material must be contained and covered
for transport outside of a total enclosure
in a manner that prevents spillage or
dust formation. Intact batteries and lead
ingot product are exempt from the
requirement to be covered for transport.
[d) Your standard operating
procedures manual must specify that
records be maintained of all pavement
cleaning, vehicle washing, and battery
storage inspection activities performed
to control fugitive dust emissions.
(e) You must pave all grounds on the
facility or plant ground cover sufficient
to prevent wind-blown dust. You may
use dust suppressants on unpaved areas
that will not support a groundcover
(e.g., roadway shoulders, steep slopes,
limited access and limited use
roadways).
(f) As provided in 63.6(g), as an
alternative to the requirements specified
in this section, you can demonstrate to
the Administrator (or delegated State,
local, or Tribal authority) that an
alternative measure(s) is equivalent or
better than a practice(s) described in
this section.
63.546
Compliance dates.
(a) For affected sources that

commenced construction or
reconstruction on or before May 19,
2011, you must demonstrate compliance
with the requirements of this subpart no
later than January 6, 2014.
(b) For affected sources that
commenced construction or
reconstruction after May 19, 2011, you
must demonstrate compliance with the
requirements of this subpart by January
5, 2012 or upon startup of operations,
whichever is later.
63.547 Test methods.
(a) You must use the test methods

from appendix A of part 60 as listed in
paragraphs (a)(1) through (5) of this

section to determine compliance with
the emissions standards for lead
compounds specified in 63.543(a) and
(b).
(1) EPA Method 1 at 40 CFR part 60,
appendix A-1 to select the sampling
port location and the number of traverse
points.
appendix A-1 or EPA Method 5D at 40
CFR part 60, appendix A-3, section 8.3
for positive pressure fabric filters, to
measure volumetric flow rate.
(3) EPA Method 3, 3A, or 3B at 40
CFR part 60, appendix A-2 to determine
the dry molecular weight of the stack
gas.
appendix A-3 to determine moisture
content of the stack gas.
(5) EPA Method 12 or Method 29 at
40 CFR part 60, appendix A-8 to
determine compliance with the lead
compound emissions standards. The
minimum sample volume must be 2.0
dry standard cubic meters (70 dry
standard cubic feet) for each run. You
must perform three test runs and you
must determine compliance using the
average of the three runs.
(b) You must use the follov.'ing test
methods in appendix A of part 60 listed
in paragraphs (b)(1) through (4) ofthis
section, as specified, to determine
compliance with the emissions
standards for total hydrocarbons
specified in 63.543(c) through (f).
port location and number of traverse
points.
(2) The Single Point Integrated
Sampling and Analytical Procedure of
Method 3B to measure the carbon
dioxide content of the stack gases when
using either EPA Method 3A or 3B at 40
CFR part 60, appendix A-2.
appendix A-3 to measure moisture
content of the stack gases.
(4) EPA Method 25A at 40 CFR part
60, appendix A-7 to measure total
hydrocarbons emissions. The minimum
sampling time must be 1 hour for each
run. You must perform a minimum of
three test runs. You must calculate a 1hour average total hydrocarbons
concentration for each run and use the
average of the three 1-hour averages to
determine compliance.
(c) You must correct the measured
total hydrocarbons concentrations to 4
percent carbon dioxide as specified in
paragraphs (c)(1) through (3) of this
section.
(1) If the measured percent carbon

dioxide is greater than 0.4 percent in
each compliance test, you must
determine the correction factor using
Equation 2 of this section.
(Eq. 2)
Where:
f =Correction factor (no units).
C02 =Percent carbon dioxide measured
using EPA Method 3A or 3B at 40 CFR
part 60, appendix A-2, where the
measured carbon dioxide is greater than
0.4 percent.
(2) If the measured percent carbon

dioxide is equal to or less than 0.4
percent, you must use a correction
factor (F) of 10.
(3) You must determine the corrected
total hydrocarbons concentration by
multiplying the measured total
hydrocarbons concentration by the
correction factor (F) determined for each
compliance test.
(d) You must use the following test
methods in appendix A of part 60 listed
in paragraphs (d)(1) through (5) of this
section, as specified, to determine
standards for dioxins and furans
specified in 63.543(c).
port location and the number of traverse
points.
appendix A-1 or EPA Method 5D at 40
CFR part 60, appendix A-3, section 8.3
for positive pressure fabric filters to
measure volumetric flow rate.
(3) EPA Method 3A or 3B at 40 CFR
part 60, appendix A-2 to determine the
oxygen and carbon dioxide
concentrations of the stack gas.
appendix A-3 to determine moisture
content of the stack gas.
appendix A-7 to determine the dioxins
and furans concentration.
(e) You must determine the dioxins
and furans toxic equivalency by
following the procedures in paragraphs
(e)(1) through (3) of this section.
(1) Measure the concentration of each
dioxins and furans congener shown in
Table 3 of this subpart using EPA
Method 23 at 40 CFR part 60, appendix
A-7. You must correct the concentration
of dioxins and furans in terms of toxic
equivalency to 7 percent 02 using
Equation 3 of this section.
Federal Register/Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations
Cad'= Cmeas(20.9 -7)

lJ
(20.9-%02)
Where:
C"i = Dioxins and furans concentration
adjusted to 7 percent oxygen.

= Dioxins and furans concentration
measured in nanograms per dry standard
cubic meter.
(20.9-7) = 20.9 percent oxygen-7 percent
oxygen (defined oxygen correction
basis).
20.9 =Oxygen concentration in air, percent.
%0 2 =Oxygen concentration measured on a
dry basis, percent.
Cmcos
(2) For each dioxins and furans

congener measured as specified in
paragraph (e)(1) of this section, multiply
the congener concentration by its
corresponding toxic equivalency factor
specified in Table 3 to this subpart.
(3) Sum the values calculated as
specified in paragraph (e)(2) of this
section to obtain the total concentration
of dioxins and furans emitted in terms
of toxic equivalency.
63.548
Monitoring requirements.
(a) You must prepare, and at all times

operate according to, a standard
operating procedures manual that
describes in detail procedures for
inspection, maintenance, and bag leak
detection and corrective action plans for
all baghouses (fabric filters or cartridge
filters) that are used to control process
vents, process fugitive, or fugitive dust
emissions from any source subject to the
lead emissions standards in 63.543,
63.544, and 63.545, including those
used to control emissions from building
ventilation.
(b) You must submit the standard
operating procedures manual for
baghouses required by paragraph (a) of
this section to the Administrator or
delegated authority for review and
approval.
(c) The procedures that you specify in
the standard operating procedures
manual for inspections and routine
maintenance must, at a minimum,
include the requirements of paragraphs
(1) Daily monitoring of pressure drop
across each baghouse cell.
(2) Weekly confirmation that dust is
being removed from hoppers through
visual inspection, or equivalent means
of ensuring the proper functioning of
removal mechanisms.
(3) Daily check of compressed air
supply for pulse-jet baghouses.
(4) An appropriate methodology for
monitoring cleaning cycles to ensure
proper operation.
(Eq.
(5) Monthly check of bag cleaning

mechanisms for proper functioning
through visual inspection or equivalent
means.
(6) Monthly check of bag tension on
reverse air and shaker-type baghouses.
Such checks aro not required for shakertype baghouses using self-tensioning
(spring loaded) devices.
(7) Quarterly confirmation of the
physical integrity of the baghouse
through visual inspection of the
baghouse interior for air leaks.
[8) Quarterly inspection of fans for
wear, material buildup, and corrosion
through visual inspection, vibration
detectors, or equivalent means.
(9) Except as provided in paragraphs
(g) and (h) of this section, continuous
operation of a bag leak detection system,
unless a system meeting the
requirements of paragraph (m) of this
section for a continuous emissions
monitoring system is installed for
monitoring the concentration of lead.
(d) The procedures you specify in the
standard operating procedures manual
for baghouse maintenance must include,
at a minimum, a preventative
maintenance schedule that is consistent
with the baghouse manufacturer's
instructions for routine and long-term
maintenance.
(e) The bag leak detection system
required by paragraph (c)(9) of this
section, must meet the specification and
requirements of paragraphs (e)(1)
through (8) of this section.
(1) The bag leak detection system
must be certified by the manufacturer to
be capable of detecting particulate
matter emissions at concentrations of
1.0 milligram per actual cubic meter
(0.00044 grains per actual cubic foot) or
less.
sensor must provide output of relative
particulate matter loadings.
must be equipped with an alarm system
that will alarm when an increase in
relative particulate loadings is detected
over a preset level.
(4) You must install and operate the
bag leak detection system in a manner
consistent with the guidance provided
in "Office of Air quality Planning and
Standards (OAQPS) Fabric Filter Bag
Leak Detection Guidance" EPA-454/R98-015, September 1997 (incorporated
by reference, see 63.14) and the
manufacturer's written specifications
and recommendations for installation,
operation, and adjustment of the system.
585
3)
(5) The initial adjustment of the

system must, at a minimum, consist of
establishing the baseline output by
adjusting the sensitivity (range) and the
averaging period of the device, and
establishing the alarm set points and the
alarm delay time.
(6) Following initial adjustment, you
must not adjust the sensitivity or range,
averaging period, alarm set points, or
alarm delay time, except as detailed in
the approved standard operating
procedures manual required under
paragraph (a) of this section. You cannot
increase the sensitivity by more than
100 percent or decrease the sensitivity
by more than 50 percent over a 365 day
period unless such adjustment follows a
complete baghouse inspection that
demonstrates that the bag house is in
good operating condition.
(7) For negative pressure, induced air
baghouses, and positive pressure
baghouses that are discharged to the
atmosphere through a stack, you must
install the bag leak detector downstream
of the baghouse and upstream of any
wet acid gas scrubber.
(8) Where multiple detectors are
required, the system's instrumentation
and alarm may be shared among
detectors.
(f) You must include in the standard
operating procedures manual required
by paragraph (a) of this section a
corrective action plan that specifies the
procedures to be followed in the case of
a bag leak detection system alarm. The
corrective action plan must include, at
a minimum, the procedures that you
will use to determine and record the
time and cause of the alarm as well as
the corrective actions taken to minimize
emissions as specified in paragraphs
(f)(1) and (f)(2) of this section.
(1) The procedures used to determine
the cause of the alarm must be initiated
within 30 minutes of the alarm.
(2) The cause of the alarm must be
alleviated by taking the necessary
corrective action(s) that may include,
but not be limited to, those listed in
paragraphs (f)(2)(i) through (vi) ofthis
section.
(i) Inspecting the baghouse for air
leaks, torn or broken filter elements, or
any other malfunction that may cause
an increase in emissions.
(ii) Sealing off defective bags or filter
media.
(iii) Replacing defective bags or filter
media, or otherwise repairing the
control device.
586
(iv) Sealing off a defective baghouse

compartment.
(v) Cleaning the bag leak detection
system probe, or otherwise repairing the
bag leak detection system.
[vi) Shutting down the process
producing the particulate emissions.
(g) Baghouses equipped with high
efficiency particulate air (or HEPA)
filters as a secondary filter used to
control emissions from any source
subject to the lead emission standards in
65.543(a) or (b), are exempt from the
requirement to be equipped with a bag
leak detection system. Yau must
monitor and record the pressure drop
across each HEPA filter system daily. If
the pressure drop is outside the limit(s)
specified by the filter manufacturer, you
must take appropriate corrective
measures, which may include but not be
limited to those given in paragraphs
(g)(1) through (4) of this section.
(1) Inspecting the filter and filter
housing for air leaks and torn or broken
filters.
(2) Replacing defective filter media, or
otherwise repairing the control device.
(3) Sealing off a defective control
device by routing air to other control
devices
(4) Shutting down the process
producing the particulate emissions.
(h) Baghouses followed by a wet
electrostatic precipitator used as a
secondary control device for any source
subject to the lead emission standards in
63.543(a) or (b), are exempt from the
requirement to be equipped with a bag
leak detection system.
(i) If you use a wet scrubber to control
particulate matter and metal hazardous
air pollutant emissions from a process
vent to demonstrate continuous
standards, you must monitor and record
the pressure drop and water flow rate of
the wet scrubber during the initial
performance or compliance test
conducted to demonstrate compliance
with the lead emissions limit under
63.543(a) or (b). Thereafter, you must
monitor and record the pressure drop
and water flow rate values at least once
every hour and you must maintain the
pressure drop and water flow rate at
levels no lower than 30 percent below
the pressure drop and water flow rate
measured during the initial performance
or compliance test.
(j) You must comply with the
requirements specified in paragraphs
(j)(l) through (4) of this section to
demonstrate continuous compliance
with the total hydrocarbons and dioxins
and furans emissions standards. During
periods of startup and shutdown, the
requirements of paragraph (j)(4) of this
section do not apply. Instead, you must
demonstrate compliance with the

standard for total hydrocarbon by
meeting the requirements of 63.543(1).
(1) Continuous temperature
monitoring. You must install, calibrate,
maintain, and continuously operate a
device to monitor and record the
temperature of the afterburner or
furnace exhaust streams consistent with
the requirements for continuous
monitoring systems in 63.8.
(2) Prior to or in conjunction with the
initial performance or compliance test
to determine compliance with
63.543(c), you must conduct a
performance evaluation for the
temperature monitoring device
according to 63.8(e). The definitions,
installation specifications, test
procedures, and data reduction
procedures for determining calibration
drift, relative accuracy, and reporting
described in Performance Specification
2, 40 CFR part 60, appendix B, sections
2, 3, 5, 7, 8, 9, and 10 must be used to
conduct the evaluation. The
temperature monitoring device must
meet the following performance and
equipment specifications:
(i) The recorder response range must
include zero and 1.5 times the average
temperature identified in paragraph
(j)(3) of this section.
(ii) The monitoring system calibration
drift must not exceed 2 percent of 1.5
times the average temperature identified
in paragraph (j)(3) of this section.
(iii) The monitoring system relative
accuracy must not exceed 20 percent.
(iv) The reference method must be a
National Institute of Standards and
Technology calibrated reference
thermocouple-potentiometer system or
an alternate reference, subject to the
approval of the Administrator.
(3) You must monitor and record the
temperature of the afterburner or the
furnace exhaust streams every 15
minutes during the initial performance
or compliance test for total
hydrocarbons and dioxins and furans
and determine an arithmetic average for
the recorded temperature
measurements.
(4) To demonstrate continuous
compliance with the standards for total
hydrocarbons and dioxins and furans,
you must maintain an afterburner or
exhaust temperature such that the
average temperature in any 3-hour
period does not fall more than 28
Celsius (50 Fahrenheit) below the
average established in paragraph (j)(3) of
this section.
(k) You must install, operate, and
maintain a digital differential pressure
monitoring system to continuously
monitor each total enclosure as
described in paragraphs (k)(1) through

(5) of this section.
(1) You must install and maintain a
minimum of one building digital
differential pressure monitoring system
at each of the following three walls in
each total enclosure that has a total
ground surface area of 10,000 square
feet or more:
(i) The leeward wall.
(ii) The windward wall.
(iii) An exterior wall that connects the
leeward and windward wall at a
location defined by the intersection of a
perpendicular line between a point on
the connecting wall and a point on its
furthest opposite exterior wall, and
intersecting within plus or minus ten
meters of the midpoint of a straight line
between the two other monitors
specified. The midpoint monitor must
not be located on the same wall as either
of the other two monitors.
(2) You must install and maintain a
minimum of one building digital
at the leeward wall of each total
enclosure that has a total ground surface
area of less than 10,000 square feet.
(3) The digital differential pressure
monitoring systems must be certified by
the manufacturer to be capable of
measuring and displaying negative
pressure in the range of 0.01 to 0.2
millimeters mercury (0.005 to 0.11
inches of water) with a minimum
accuracy of plus or minus 0.001
millimeters of mercury (0.0005 inches of
water).
(4) You must equip each digital
with a continuous recorder.
(5) You must calibrate each digital
in accordance with manufacturer's
specifications at least once every 12
calendar months or more frequently if
recommended by the manufacturer.
(l) Except as provided in paragraphs
(1)(2) or (3) of this section, all new or
reconstructed sources subject to the
requirements under 63.543 must
install, calibrate, maintain, and operate
a CEMS for measuring lead emissions.
In addition to the General Provisions
requirements for CEMS in 63.8(c) that
are referenced in Table 1 to this subpart,
you must comply with the requirements
for CEMS specified in paragraph (m) of
this section.
(1) Sources subject to the emissions
limits for lead compounds under
63.543(b) must install a CEMS for
measuring lead emissions within 180
days of promulgation by the EPA of
performance specifications for lead
CEMS.
(2) Prior to 180 days after the EPA
promulgates performance specifications
for CEMS used to measure lead
concentrations, you must use the
procedure described in 63.543(g)(1) to
determine compliance.
(3) Vents from control devices that
serve only to control emissions from
buildings containing lead bearing
materials are exempt from the
requirement to install a CEMS for
measuring lead emissions.
(m) If a CEMS is used to measure lead
emissions, you must install a
continuous emissions monitoring
system with a sensor in a location that
provides representative measurement of
. the exhaust gas flow rate at the sampling
location of the CEMS used to measure
lead emissions, taking into account the
manufacturer's recommendations. The
flow rate sensor is that portion of the
system that senses the volumetric flow
rate and generates an output
proportional to that flow rate.
(1) The continuous emissions
monitoring system must be designed to
measure the exhaust gas flow rate over
a range that extends from a value of at
least 20 percent less than the lowest
expected exhaust flow rate to a value of
at least 20 percent greater than the
highest expected exhaust gas flow rate.
[2) The continuous emissions
monitoring system must be equipped
with a data acquisition and recording
system that is capable of recording
values over the entire range specified in
paragraph (m)(1) of this section.
(3) You must perform an initial
relative accuracy test of the continuous
emissions monitoring system in
accordance with the applicable
Performance Specification in appendix
B to part 60 of this chapter.
(4) You must operate the continuous
emissions monitoring system and record
data during all periods of operation of
the affected facility including periods of
starlup, shutdown, and malfunction,
except for periods of monitoring system
malfunctions, repairs associated with
monitoring system malfunctions, and
required monitoring system quality
assurance or quality control activities
including, as applicable, calibration
checks and required zero and span
adjustments.
(5) If you have a CEMS to measure
lead emissions, you must calculate the
average lead concentration and flow rate
monthly to determine compliance with
63.543(a).
(6) When the continuous emissions
monitoring system is unable to provide
quality assured data, the following
apply:
[i) When data are not available for
periods of up to 48 hours, the highest
recorded hourly emissions rate from the
previous 24 hours must be used.
(ii) When data are not available for 48

or more hours, the maximum daily
emissions rate based on the previous 30
days must be used.
63.549 Notification requirements.
(a) You must comply with all of the

notification requirements of 63.9.
Electronic notifications are encouraged
if suitable for the specific case (e.g., by
electronic media such as Excel
spreadsheet, on CD or hard copy), and
when required by this subpart.
(b) You must submit the fugitive dust
control standard operating procedures
manual required under 63.545(a) and
the standard operating procedures
manual for baghouses required under
63.54B(a) to the Administrator or
delegated authority along with a
notification that the smelter is seeking
review and approval of these plans and
procedures. You must submit this
notification no later than January 7,
2013. For sources that commenced
construction or reconstruction after
January 5, 2012, you must submit this
notification no later than 180 days
before startup of the constructed or
reconstructed secondary lead smelter,
but no sooner than January 5, 2012. For
an affected source that has received a
construction permit from the
Administrator or delegated authority on
or before January 5, 2012, you must
submit this notification no later than
January 7, 2014.
63.550 Recordkeeping and reporting
requirements.
(a) You must comply with all of the

recordkeeping and reporting
requirements specified in 63.10 that
are referenced in Table 1 to this subpart.
(1) Records must be maintained in a
form suitable and readily available for
expeditious review, according to
63.10(b)(1). However, electronic
recordkeeping and reporting if suitable
for the specific case (e.g., by electronic
media such as Excel spreadsheet, on CD
or hard copy), and when required by
this subpart.
(2) Records must be kept on site for
at least 2 years after the date of
occurrence, measurement, maintenance,
corrective action, report, or record,
according to 63.10(b)(1).
(b) The standard operating procedures
manuals required in 63.545(a) and
63.54B(a) must be submitted to the
Administrator in electronic format for
review and approval of the initial
submittal and whenever an update is
made to the procedure.
(c) You must maintain for a period of
5 years, records of the information listed
in paragraphs (c)(1) through (13) of this
section.
587
(1) Electronic records of the bag leak

detection system output.
(2) An identification of the date and
time of all bag leak detection system
alarms, the time that procedures to
determine the cause of the alarm were
initiated, the cause of the alarm, an
explanation of the corrective actions
taken, and the date and time the cause
of the alarm was corrected.
(3) All records of inspections and
maintenance activities required under
63.54B(c) as part of the practices
described in the standard operating
procedures manual for baghouses
required under 63.548(a).
(4) Electronic records of the pressure
drop and water flow rate values for wet
scrubbers used to control metal
hazardous air pollutant emissions from
process fugitive sources as required in
63.54B(i).
(5) Electronic records of the output
from the continuous temperature
monilor required in 63.54B(j)(1), and
an identification of periods when the 3hour average temperature fell below the
minimum established under
63.54B(j)(4), and an explanation of the
corrective actions taken.
(6) Electronic records of the
continuous pressure monitors for total
enclosures required in 63.54B(k), and
an identification of periods when the
pressure was not maintained as required
in 63.544(c)(1).
(7) Records of any time periods power
was lost to the continuous pressure
monitors for total enclosures required in
63.54B(k) and records of loss of power
to the air handling system maintaining
negative pressure on total enclosures.
(B) Records of the inspections of
facility enclosures required in
63.544(d).
(9) Records of all cleaning and
inspections required as part of the
practices described in the standard
operating procedures manual required
under 63.545(a) for the control of
fugitive dust emissions.
(10) Electronic records of the output
of any CEMS installed to monitor lead
emissions meeting the requirements of
63.54B(m).
(11) Records of the occurrence and
duration of each malfunction of
operation (i.e., process equipment) or
the air pollution control equipment and
monitoring equipment.
(12) Records of actions taken during
periods of malfunction to minimize
emissions in accordance with
63.543(k), including corrective actions
to restore malfunctioning process and
air pollution control and monitoring
equipment to its normal or usual
manner of operation.
588
(13) Records of any periods of startup

or shutdown of a furnace and actions
taken to minimize emissions during that
period in accordance with 63.543(1).
(d) You must comply with all of the
reporting requirements specified in
63.10 of the General Provisions that
are referenced in Table 1 to this subpart.
(1) You must submit reports no less
frequent than specified under
63.10(e)(3) of the General Provisions.
(2) Once a source reports a violation
of the standard or excess emissions, you
must follow the reporting format
required under 63.10(e)(3) until a
request to reduce reporting frequency is
approved by the Administrator.
(e) In addition to the information
required under the applicable sections
of 63.10, you must include in the
reports required under paragraph (d) of
this section the information specified in
paragraphs (e)(1) through (14) of this
section.
(1) Records of the concentration of
lead in each process vent, and records
of the rolling 12-month flow-weighted
compounds in vent gases calculated
monthly as required in 63.543(a),
except during the first year when the
concentration is calculated using the
method described in 63.543(a)(2).
(2) Records of the concentration of
total hydrocarbon and dioxins and
furans in each process vent that has
established limits for total hydrocarbon
and dioxins and furans as required in
63.543(c).
(3) Records of all periods when
monitoring using a CEMS for lead or
total hydrocarbon was not in
compliance with applicable limits.
(4) Records of all alarms from the bag
leak detection system specified in
63.548.
(5) A description of the procedures
taken following each bag leak detection
system alarm pursuant to 63.548(f)(1)
and (2).
(6) A summary of the records
maintained as part of the practices
described in the standard operating
procedures manual for baghouses
required under 63.548(a), including an
explanation of the periods when the
procedures were not followed and the
corrective actions taken.
(7) An identification of the periods
when the pressure drop and water flow
rate of wet scrubbers used to control
process fugitive sources dropped below
the levels established in 63.548(i), and
an explanation of the corrective actions

taken.
(8) Records of the temperature
monitor output, in 3-hour block
averages, for those periods when the
temperature monitored pursuant to
63.548(j) fell below the level
established in 63.548(j)(4).
(9) Certification that the plastic
separation process for battery breakers
required in 63.543(m) was operated at
all times the battery breaker was in
service.
(10) Records of periods when the
pressure was not maintained as required
in 63.544(c) or power was lost to the
continuous pressure monitoring system
as required in 63.548(k).
(11) If a malfunction occurred during
the reporting period, the report must
include the number, duration, and a
brief description for each type of
malfunction that occurred during the
reporting period and caused or may
have caused any applicable emissions
limitation to be exceeded. The report
must also include a description of
actions taken during a malfunction of an
affected source to minimize emissions
in accordance with 63.543(k).
including actions taken to correct a
malfunction.
(12) A summary of the fugitive dust
control measures performed during the
required reporting period, including an
procedures outlined in the standard
operating procedures manual pursuant
to 63.545(a) were not followed and the
corrective actions taken. The reports
must not contain copies of the daily
records required to demonstrate
compliance with the requirements of the
standard operating procedures manuals
required under 63.545(a).
(13) Records of any periods of startup
or shutdown of a furnace including an
procedures required in 63.543(1) were
not followed and the corrective actions
taken.
(14) You must submit records
pursuant to paragraphs (e)(14)(i)
through (iii) of this section.
(i) As ofJanuary 1, 2012 and within
60 days after the date of completing
each performance test, as defined in
63.2 and as required in this subpart,
you must submit performance test data,
except opacity data, electronically to
EPA's Central Data Exchange by using
the Electronic Reporting Tool (see
http ://wt1rw. epa.govlttn/chief!ert/ert_
tool.html!). Only data collected using
test methods compatible with the

Electronic Reporting Tool are subject to
this requirement to be submitted
electronically into EPA's WebFIRE
database.
(ii) Within 60 days after the date of
completing each CEMS performance
evaluation test, as defined in 63.2 and
required by this subpart, you must
submit the relative accuracy test audit
data electronically into EPA's Central
Data Exchange by using the Electronic
Reporting Tool as mentioned in
paragraph (e)(14)(i) of this section. Only
data collected using test methods
compatible with the Electronic
Reporting Tool are subject to this
requirement to be submitted
electronically into EPA's WebFIRE
database.
(iii) All reports required by this
subpart not subject to the requirements
in paragraph (e)(14)(i) and (ii) of this
section must be sent to the
Administrator at the appropriate
address listed in 63.13. The
Administrator or the delegated authority
may request a report in any form
suitable for the specific case (e.g., by
electronic media such as Excel
spreadsheet, on CD or hard copy). The
Administrator retains the right to
require submittal of reports subject to
paragraph (e)(14)(i) and (ii) of this
section in paper format.
63.551
Implementation and enforcement.
(a) This subpart can be implemented

and enforced by the U.S. EPA, or a
delegated authority such as the
applicable State, local, or tribal agency.
If the U.S. EPA Administrator has
delegated authority to a State, local, or
tribal agency, then that agency, in
addition to the U.S. EPA, has the
authority to implement and enforce this
subpart. Contact the applicable U.S.
EPA Regional Office to find out if this
subpart is delegated to a State, local, or
tribal agency.
(b) In delegating implementation and
enforcement authority of this subpart to
a State, local, or tribal agency under
subpart E of this part, the authorities
contained in paragraph (c) of this
section are retained by the
Administrator of U.S. EPA and cannot
be transferred to the State, local, or
tribal agency.
(c) The authorities that cannot be
delegated to State, local, or tribal
agencies are as specified in paragraphs
Federal Register I Vol. 77, No. 3 I Thursday, January 5, 2012 /Rules and Regulations
(ii) Could not have been prevented
(1) Approval of alternatives to the
requirements in 63.541, 63.543
through careful planning, proper design
through 63.544, 63.545, and 63.546.
or better operation and maintenance
(2) Approval of major alternatives to
practices.
test methods under 63.7(e)(2)(ii) and
(iii) Did not stem from any activity or
(f), as defined in 63.90, and as required event that could have been foreseen and
in this subpart.
avoided, or planned for.
(iv) Were not part of a recurring
monitoring under 63.8(f), as defined in pattern indicative of inadequate design,
63.90, and as required in this subpart.
operation, or maintenance.
(2) Repairs were made as
recordkeeping and reporting under
expeditiously as possible when the
63.10(f), as defined in 63.90, and as
applicable emissions limitations were
required in this subpart.
being exceeded. Off-shift and overtime
labor were used, to the extent
63.552 Affirmative defense to civil
practicable to make these repairs.
penalties for exceedance of emissions limit
(3) The frequency, amount and
during malfunction.
In response to an action to enforce the duration of the excess emissions
(including any bypass) were minimized
standards set forth in this subpart, you
to the maximum extent practicable
may assert an affirmative defense to a
claim for civil penalties for exceedances during periods of such emissions.
(4) If the excess emissions resulted
of such standards that are caused by
from a bypass of control equipment or
malfunction, as defined at 63.2.
a process, then the bypass was
Appropriate penalties may be assessed,
however, if you fail to meet your burden unavoidable lo prevent loss of life,
of proving all of the requirements in the personal injury, or severe property
damage.
affirmative defense. The affirmative
(5) All possible steps were taken to
defense shall not be available for claims
minimize the impact of the excess
for injunctive relief.
emissions on ambient air quality, the
(a) Affirmative defense. To establish
environment and human health.
the affirmative defense in any action to
(6) All emissions monitoring and
enforce such a limit, you must timely
control systems were kept in operation
meet the notification requirements in
if at all possible, consistent with safety
paragraph (b) of this section, and must
and good air pollution control practices.
prove by a preponderance of evidence
(7) All of the actions in response to
that:
the excess emissions were documented
(1) The excess emissions:
(i) Were caused by a sudden,
by properly signed, contemporaneous
infrequent, and unavoidable failure of
operating logs.
(8) At all times, the affected source
air pollution control and monitoring
equipment, process equipment, or a
was operated in a manner consistent
with good practices for minimizing
emissions.
manner.
(9) A written root cause analysis has

been prepared, the purpose of which is
to determine, correct, and eliminate the
primary causes of the malfunction and
the excess emissions resulting from the
malfunction event at issue. The analysis
shall also specify, using best monitoring
methods and engineering judgment, the
amount of excess emissions that were
the result of the malfunction.
(b) Notification. The owner or
operator of the affected source
experiencing an exceedance of its
emissions limit(s) during a malfunction,
shall notify the Administrator by
telephone or facsimile transmission as
soon as possible, but no later than two
business days after the initial
occurrence of the malfunction, it wishes
to avail itself of an affirmative defense
to civil penalties for that malfunction.
The owner or operator seeking to assert
an affirmative defense, shall also submit
a written report to the Administrator
within 45 days of the initial occurrence
of the exceedance of the standard in this
subpart to demonstrate, with all
necessary supporting documentation,
that it has met the requirements set forth
in paragraph (a) of this section. The
owner or operator may seek an
extension of this deadline for up to 30
additional days by submitting a written
request to the Administrator before the
expiration of the 45-day period. Until a
request for an extension has been
approved by the Administrator, the
owner or operator is subject to the
requirement lo submit such report
within 45 days of the initial occurrence
of the exceedance.
TABLE 1 TO SUBPART X OF PART 53-GENERAL PROVISIONS APPLICABILITY TO SUBPART X
Reference
Applies to subpart X
63.1 ...... ,............................................................................

63.2 ...................................................................................
63.3 ...................................................................................
63.4 ...................................................................................
63.5 ...................................................................................
63.6(a), (b), (c) .................................................................
63.6(d) ..............................................................................
63.6(e)(1 )(i) .......................................................................
63.6(e)(1)(ii) ......................................................................
63.6(e)(1)(iii) .....................................................................
63.6(e)(2) ..........................................................................
63.6(e)(3) ..........................................................................
63.6(1)(1) ...........................................................................
63.6(g) ..............................................................................
63.6(h) ..............................................................................
63.6(i) ...............................................................................
63.6(j) ...............................................................................
63.7(a)-(d) ........................................................................
63.7(e)(1) ..........................................................................
63.7(e)(2)-(e)(4) ...............................................................
63.7(f), (g), (h) ..................................................................
63.8(a)-(b) ........................................................................
63.8(c)(1)(i) .......................................................................
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
No. ......................................
No. ......................................
No.
Yes.
No. ......................................
No.
No.
Yes.
No. ......................................
Yes.
Yes.
Yes.
No. ......................................
Yes.
Yes.
Yes.
No. ......................................
589
Comment
Section reserved.
See 63.543(k) for general duty requirement.
Section reserved.
No opacity limits in rule.
See 63.543(j).
See 63.543(k) for general duty requirement.
590
TABLE
1 TO
SUBPART
OF PART 53-GENERAL PROVISIONS APPLICABILITY TO SUBPART
Reference
Applies to subpart X
X-Continued
Comment
63.8(c)(1 )(ii) ...................................................................... Yes.

63.8(c)(1)(iii) ..................................................................... No ...................................... .
63.8(c)(2)-(d)(2) ............................................................... Yes.
63.8(d)(3) .......................................................................... Yes, except for last sentence.
63.8(e)-(g) ........................................................................ Yes.
63.9(a), (b), (c), (e), (g), (h)(1 )through (3), (h)(5) and (6), Yes.
(i) and G).
63.9(1) ............................................................................... No.
63.9(h)(4) .......................................................................... No. ...................................... Reserved.
63.10 (a) ........................................................................... Yes.
63.10 (b)(1) ....................................................................... Yes.
63.1 O(b)(2)(i) ..................................................................... No.
63.1 O(b)(2)(ii) .................................................................... No. ...................................... See 63.550 for recordkeeping of occurrence and duration of malfunctions and recordkeeping of actions
taken during malfunction.
63.1 O(b)(2)(iii) ................................................................... Yes.
63.1 O(b) (2)(iv)-(b)(2) (v) .................................................... No.
63.1 O(b)(2)(vi)-(b)(2)(xiv) ................................................. Yes.
63.(1 O)(b)(3) ..................................................................... Yes.
63.1 O(c)(1 )-{9) .................................................................. Yes.
63.1 O(c)(1 0)-(11) .............................................................. No. ...................................... See 63.550 for recordkeeping of malfunctions.
63.10(c)(12)-(c)(14) ......................................................... Yes.
63.1 O(c)(15) ...................................................................... No.
63.1 O(d)(1 )-(4) ................................................................. Yes.
63.1 O(d)(5) ........................................................................ No. ...................................... See 63.550(e)(11) for reporting of malfunctions.
63.10(e)-(f) ....................................................................... Yes.
63.11 ................................................................................. No. ...................................... Flares will not be used to comply with the emission limits.
63.12to 63.15 .................................................................. Yes.
TABLE 2 TO SUBPART X OF PART 63-EMISSIONS LIMITS FOR SECONDARY LEAD SMELTING FURNACES
You must meet the following emissions limits . . . a
Dioxin and luran (dioxins and
furans) nanograms/dscm
expressed as TEO corrected to
7 percent Oz
For vents from these processes . . .
Total hydrocarbon ppm by volume

expressed as propane corrected to
4 percent carbon dioxide
Collocated blast and reverberatory furnaces (new and existing) ...........

Collocated blast and reverberatory furnaces when the reverberatory
furnace is not operating for units that comments construction or reconstruction before June 9, 1994.
Collocated blast and reverberatory furnaces when the reverberatory
furnace is not operating for units that commence construction or reconstruction after June 9, 1994.
Blast furnaces that commence construction or reconstruction before
June 9, 1994.
Blast furnaces that commence construction or reconstruction after
June 9, 1994.
Blast furnaces that commence construction or reconstruction after May
19, 2011.
Reverberatory and electric furnaces that commence construction or reconstruction before May 19, 2011.
Reverberatory and electric furnaces that commence construction or reconstruction after May 19, 2011.
20 ppmv .........................................
360 ppmv .......................................
0.50 ng/dscrn.
170 ng/dscm.
70 ppmv .........................................
170 ng/dscm.
360 ppmv .......................................
170 ng/dscm.
70 ppmv .........................................
170 ng/dscrn.
70 ppmv .........................................
10 ng/dscm.
12 pprnv .........................................
0.20 ng/dscm.
12 ppmv .........................................
0.10 ng/dscm.
There are no standards for dioxins and furans during periods of startup and shutdown.
TABLE 3 TO SUBPART
OF PART 63-TOXIC EQUIVALENCY FACTORS
Dioxin/luran congener
2,3,7,8-tetrachlorinated dibenzo-p-dioxin ............................................................................................................................................
1,2,3,7,8-pentachlorinated dibenzo-p-dioxin ........................................................................................................................................
1,2,3,4,7,8-hexachlorinated dibenzo-p-dioxin ......................................................................................................................................
1,2,3,4,6,7,8-heptachlorinated dibenzo-p-dioxin ..................................................................................................................................
octachlorinated dibenzo-p-dioxin .........................................................................................................................................................
Toxic equivalency factor
1
0.5
0.1
0.1
0.1
0.01
0.001
TABLE 3 TO SUBPART
X OF PART 63-TOXIC EQUIVALENCY FACTORS-Continued

Dioxin/luran congener
2,3,7,8-tetrachlorinated dibenzofuran ..................................................................................................................................................

2,3,4,7,8-pentachlorinated dibenzofuran .............................................................................................................................................
1,2,3,7,8-pentachlorinated dibenzofuran .............................................................................................................................................
1,2,3,4,7,8-hexachlorinated dibenzoturan ...........................................................................................................................................
1,2,3,6,7,8-hexachlorinated dibenzofuran ...........................................................................................................................................
1,2,3,7,8,9-hexachlorinated dibenzofuran ...........................................................................................................................................
[FR Doc. 2011-32933 Filed 1-4-12; 8:45am]

BILLING CODE 6560-50-P
591
Toxic equivalency factor
0.1
0.05
0.5
0.1
0.1
0.1
From:
Sent:
To:
FOIA Exemption 6
Subject:
Sara Morris
Gigi Sohn; Daniel Alvarez; Ruth Milkman; Philip Verveer; Jonathan Sallet; Shannon
Gilson; Stephanie Weiner
FW: FCC To Allow Commercial Discrimination on the Internet
Sent: Wednesday, April 23, 2014 8:37PM

To: Chris Lewis; gkimmelman@publicknowledge.org
Subject: RE: FCC To Allow Commercial Discrimination on the Internet

Chris, Gene:
It is hard for me to see how the "commercial reasonableness standard" inherently permits discrimination when the FCC
hasn't even settled on what factors would help determine what is reasonable or unreasonable. PK should be working with
the Commission and weighing in to help ensure they reach the right conclusions. It is possible that certain types of
arrangements are so toxic that it is nearly per se commercially unreasonable when considered in their totality, without
violating the court's prohibition on common carriage treatment of broadband providers. We are eager to work with you
guys on this.
Shawn
From: Chris Lewis [clewis@publicknowledge.org]
Sent: Wednesday, April 23, 2014 6:03 PM

To: Martyn Griffen; Clarissa Ramon; kforscey
Subject: Fwd: FCC To Allow Commercial Discrimination on the Internet
Good Afternoon,
Below is Public Knowledge's statement on reports that the FCC will propose new "Net Neutrality" rules that
allow discrimination on the Internet.
Feel free to contact me with questions.
Best,
Chris Lewis
Subject: FCC To Allow Commercial Discrimination on the Internet
Reply-To: Bartees Cox, Jr. <bartees{a),publicknowledge.org>
More information available at publicknowledge.org/press
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Contact: Bartees Cox (o) 202-861-0020
(c) 202-815-6457

April23, 2014
FCC To Allow Commercial Discrimination on the Internet
According to press reports the Federal Communications Commission (FCC) will propose new net
neutrality rules this Thursday. It's been reported that the updated rules will prevent internet service
providers (ISPs) from discriminating or blocking websites. However, ISPs would be able to charge
companies for preferential treatment if the ISPs' discrimination is commercially reasonable.
The following can be attributed to Michael Weinberg, Vice President at Public Knowledge:
"The FCC is inviting ISPs to pick winners and losers online. The very essence of a "commercial
reasonableness" standard is discrimination. And the core of net neutrality is non discrimination. This is
not net neutrality. This standard allows ISPs to impose a new price of entry for innovation on the
Internet. When the Commission used a commercial reasonableness standard for wireless data roaming,
it explicitly found that it may be commercially reasonable for a broadband ISP to charge an edge provider
higher rates because its servrce is competitively threatening.
"It is hard to see how the commercial reasonableness standard, which inherently offers less protection
than the standard in the previous Open Internet Rules, can serve the same policy goals. Additionally,
approaching discrimination on a case-by-case basis creates less certainty than clear rules and
disadvantages small businesses and entrepreneurs. The Commission should instead seek to find a way
to ensure true net neutrality, including protections against discrimination by ISPs for commercial
purposes. The DC Circuit Court opinion made it clear that the only way to achieve net neutrality is to
reclassify internet access as a telecommunications service."
This release is linked here.
###
Public Knowledge is a Washington D.C.- based public interest group working to defend consumer rights
in the emerging digital culture. More information is available at http://www.publicknowledge.org
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Promoting a Creative & Connected Future
From: Jon Brodkin

To: Mark Wigfield
Subject: Re: FCC Launches Broad Rulemaking to Protect and Promote the Open Internet
when it says "exclusive contracts that prioritize service to broadband affiliates are unlawful," does that
mean these are allowed as long as they're offered to anyone on commercially reasonable terms?
Jon Brodkin
Senior IT Reporter
Ars Technica
Ars Orbiting HQ
From: Mark Wigfield <Mark.Wigfield@fcc.gov>

Reply-To: Mark Wigfield <Mark.Wigfield@fcc.gov>
Date: Thursday, May 15, 2014 at 12:04 PM
To: press <press@info.fcc.gov>

Subject: FCC Launches Broad Rulemaking to Protect and Promote the Open Internet
Press release and fact sheet below
NEWS MEDIA CONTACT:

Mark Wigfield, 202-418-0253
E-mail: mark.wigfield@fcc.gov

May 15,2014
FCC LAUNCHES BROAD RULEMAKING ON HOW BEST TO PROTECT AND PROMOTE THE OPEN
INTERNET
Seeks Pllhlic lllput over the Next Four Mollths to Find Most Viable Approach
washington, D.C. -The Federal Communications Commission today launched a rulemaking seeking public comment on
how best to protect and promote an open Internet The Notice of Proposed Rulemaking adopted today poses a broad.
range of questions to elicit the broadest range of input from everyone impacted by the Internet, from conswners and smaU
businesses to providers and start-ups.
The Internet is America's most important platfonn for economic growth, innovation, competition, free expression, and
broadband investment and deployment. The Internet has become an essential tool for Americans and for the growth of
American businesses. That's because the Internet has been open to new content, new products and new services, enabling
co.nsumers to choose whatever legal content, services and applications they desire.
The FCC has previously concluded that broadband providers have the incentive and ability to act in ways that threaten
Internet openness. But today, there are no rules that stop broadband providers from trying to limit I:ntemet
openness. That is why the Notice adopted by the FCC todays starts with a fundamental question: "What is the right public
policy to ensure that the Internet remains open?"
The FCC proposes to rely on a legal blueprint set out by the United States Court of Appeals for the District of Columbia
Circuit in its January decision in Verizon v. FCC, using the FCC's authority to promote broadband deployment to all
Americans under Section 706 of the Telecommunications Act of 1996. At the same tirne, the Commission will seriously
consider using its authority under the telecommunications regulation found in Title II of the Communications Act. In
addition, the Notice:
Proposes to retain the definitions and .scope of the 2010 rules, which governed broadband Internet access service
providers, but not services like enterprise services, Internet traffic exchange and specialized services.
Proposes to enhance the existing transparency rule, which was upheld by the D.C. Circuit The proposed
enhancements would provide consumers, edge providers, and the Commission with tailored disclosures, including
information on the nature of congestion that impacts consumers' use of online services and timely notice of new
practices.
As part of the revived "no-blocking" rule, proposes ensuring that all who use the Internet can enjoy robust, fast
and dynamic Internet access.
Tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate should be
considered illegal until proven otherwise.
Asks how to devise a rigorous, multi-factor "screen" to analyze whether any conduct hurts consumers,
competition, free expression and civic engagement, and other criteria under a legal standard tenned "conunercial
reasonableness."
2
Asks a series of detailed questions about what legal authority provides the most effective means of keeping the
Internet open: Section 706 or Title ll.
Proposes a multi-faceted process to promptly resolve and head off disputes, including an ombudsperson to act as a
watchdog on behalf of consumers and.start-ups and small businesses.
Action by the Commission May 15, 2014, by Notice of Proposed Rulemaking (FCC 14-61). Chairman Wheeler and
Commissioner Clyburn \Vith Commissioner Rosenworcel concurring and Commissioners Pai and O'Rielly
dissenting. Chairman Wheeler, Commissioners Clyburn, Rosenworcel, Pai and O'Rielly issuing statements.
-FCCFACT SHEET: Protecting and Promoting the Open Internet

May 15,2014
The Internet is a vital platform for innovation, economic growth and free expression in America. And yet, despite two
prior FCC attempts,there are no rules on the books to prevent broadband providers from limiting Internet openness by
blocking content or discriminating against consumers and entrepreneurs online. The "Protecting and Promoting the Open
Internet" Notice of Proposed Rulemaking (NPRM) begins the process of closing that gap, which was created in January
2014 when the D.C. Circuit struck down key FCC Open Internet rules.
This Notice seeks public comment on the benefits of applying Section 706 of the Telecommunications Act of 1996 and
Title ll of tl1e Communications Act, including the benefits of one approach over the other, to ensure the Internet remains
an open platform for innovation and expression. While the Notice reflects a tentativeconclusion that Section 706 presents
the quickest and most resilient path forward per the court's guidance, it also makes clear that Title II remains a viable
alternative and asks specifically which approach is better. In addition, the proposal asks whether paid prioritization
arrangements, or "fast lanes;" can be banned outright
We Are Listening: An Extended
Public Comment Period is Open
Since February, tens of thousands of

have offered their views to the Commission on how to protect an Open
Internet: The proposal reflects the substantial public input we have received. The Commission wants to continue to bear
from Americans across the country throughout this process. An extended four-month publk comment period on the
on May 15-60 days (until July 15) to submit initial comments and another 57
Commission's proposal will be
clays (until September 10) for reply comments.
The NPRM seeks comment on a number of questions designed to:
Develop the Strongest Legal Framework for Enforceable RuJes of the Road
Reflects the principles that Chairman Wheeler outlined in February, including using the Section 706 bluepriQt for
restoring the Open Internet rules offered by the D.C. Circuit in its decision in Verizon v. FCC, which relies on the
FCC's legal aufuority under Section 706 of the Telecommunications Act of 1996. At ilie same time, the
Commission will seriously consider the use of Title ll of ilie Communications Act as the basis for legal authority.
Seeks comment on the benefits of both Section 706 and Title IT, including the benefits of one approach over the
other to ensure the Internet remains an open platform for innovation and expression.
Explores other available sources of legal authority, including also Title ill for wireless services. The Commission
seeks comment on the best ways to define, prevent, expose and punish the practices that threaten an Open
Internet.
Ensure choices for consumers and opportunity for innovators
Proposes a requirement that all users must have access to fast and robust service: Broadband consumers must
have access to the content, services and applications they desire. Innovators and edge providers must have access
to end-users they can offer new products and services.
Considers ensuring that these standards of service evolve to keep pace with of innovation.
so
Prevent practices that can threaten the Open Internet
Asks if paid pdoritization shoUld be banned outright.

Promises clear rules of the road and aggressive enforcement to prevent unfair treatment of consumers, edge
provi<;lers and innovators.
presumption* that exclusive contracts that prioritize service to broadband affiliates
Includes a
unlawful.
(*Rebuttable presumption is a presumption that is taken to be true unless someone comes forward to contest it and proves
othe1wise)
Expand transparency
Enhance the transparency rules to provide increased and specific information about broadband providers'
practices for edge providers, consumers.
Asks whether broadband providers should be required to disclose specifi.c network practices, performance
characteristics (e.g., effective upload and download speeds, latency and packet Joss) and/or terms and conditions
of service to end users (e.g., data caps).
Tentatively concludes that broadband providers should disclose "meaningful infonnation" about the service,
including (1) tailored disclosures to end users, (2) congestion that may adversely impact the experience of end
users, including at interconnection points, and (3) information about new practices, like any paid prioritization, to
the extent that it is otherwise permitted.
Protect consumers, innovators and startups through new rules and effective enforcement
Proposes the creation of an ombudsperson with significant enforcement authority to serve as a watchdog and
advocate for stan-ups, small businesses and consumers.
Seeks comment on how to ensure that all parties, and especially small businesses and start-ups, have effective
access to the Commission's dispute resolution and enforcement processes.
Considers allowing anonymous reporting of violations to alleviate fears by start-ups of retribution from
broadband providers.
Consider the bnpact on the Digital Divide: Ensuring access for all communities
Considers the impact of the proposals on groups who disproportionately use mobile broadband service.
Asks whether any parts of the nation are being left behind in the deployment of new broadband networks,
including rural America and parts of urban America.
Link to Chairman Wheeler's February Open Internet framework: htUJ:I/www.fcc.gov/documentlstatement-fcc-chainnantom-wheeler-fccs-open-internet-rules

Comment on the Open Internet proposals: http:lfwww.fcc.gov/comments
You have received this release from the FCC Office of Media Relations.
To view all of the latest FCC headlines go to the http://www.fcc.gov .
If you wish to stop receiving releases send a blank email to leave-53734080259.22fln14fb6206382f127c3b9896c7aa@info.fcc.gov
4
One page withheld pursuant to FOIA Exemption 5
From: Shannon Gilson
Sent: Wednesday, April 23, 2014 3:48PM
To: Gigi Sohn; Jonathan Sallet; Mark Wigfield; Stephanie Weiner; Neil Grace
Subject: PN: here is WSJ story -- it says preferential treatment is OK
See below .
. From: Todd Shields (BLOOMBERG/ NEWSROOM:) [mailto:tshields3@bloomberg.net]
Sent: Wednesday, April23, 2014 3:47PM
To: Shannon Gilson

Subject: here is WSJ story -- it says preferential treatment is OK
see para 4 (my asterisks):

FCC to Propose New 'Net Neutrality' Rules
Proposal Would Allow Broadband Providers to Charge Content Companies for Consumer Access
By GAUTHAM NAGESH
April 23, 2014 3:30p.m. ET
WASHINGTON-The Federal Communications Commission plans to propose new open Internet

rules on Thursday that would allow content companies to pay Internet service providers for special
access to consumers, according. to a person familiar with the proposal.
The proposed rules would prevent the service providers from blocking or discriminating against
specific websites, but would allow broadband providers to give some traffic preferential treatment, so
long as such arrangements are available on "commercially reasonable" terms for all interested
2
content companies. Whether the terms are commercially reasonable would be decided by the FCC
on a case-by-case basis.
Companies such as Skype or Netflix that offer phone or video services that rely on broadband
connections could take advantage of such arrangements by paying the broadband providers to
ensure that their traffic reaches consumers without disruption.
**Those companies would be paying for preferential treatment on the "last mile" of broadband
networks that connects directly to consumers' homes. **The proposal does not address the separate
issue of back-end interconnection or peering between content providers and broadband networks
Todd Shields
Bloomberg News
media, tech, telecom reporter- Washington
(202) 624-1909 (office)
<<FCC & TECH I (202) 624-1909 >>
From: Todd Shields (BLOOMBERG/ NEWSROOM:) [mal!to:tshiefds3@bloomberg.netj

To: Neil Grace; Shannon Gilson; Mark Wigfield
Subject: (BN) Web Fast-Lane Backlash Gets FCC's Wheeler to Offer Tougher Plan
hi guys fyi our story is out.

Todd Shields
Bloomberg News
media, tech, teiecom reporter- Washington
(202) 624-1909 (office)
<<FCC & TECH I (202) 624-1909 >>

Web Fast-Lane Backlash Gets FCC's Wheeler to Offer Tougher Plan
2014-05-12 18:21:27.9 GMT
By Todd Shields
May 12 (Bloomberg)-- Federal Communications Commission
Chairman Tom Wheeler will raise the possibility his agency could
set prices for Intemet service as he seeks the votes of
, colleagues who resisted his first plan, an agency official said.
Wheeler's new plan discusses placing Internet providers
under regulations that give the FCC more leeway to set rules,
which carriers say may lead to price regulation. It doesn't
change Wheeler's stance for a case-by-case approach that would
grant the agency Jess power over Web services, said the official
who spoke on condition of not being named because the proposal
hasn't been made public.
The new wording lets the FCC consider a tougher approach
urged by advocacy groups, who say the agency needs to protect
"net neutrality," the concept that all Web traffic is treated
equally. Cable providers and telephone companies such as AT&T
Inc. and Verizon Communications lnc. say such an approach would
deter investment.
Wheeler's revised open-Internet plan offers more checks on
Web fast lanes than what he proposed earlier, which had sparked
1
a backlash with companies such as Google fuc. saying the idea

poses a "grave threat" to an open futernet. He set a
preliminary vote for May 15.
Wheeler is responding to a court's rejection in January of
rules the FCC passed in 2010 --and to objections from two
Democratic colleagues who join him in the FCC's majority.
Commissioner Jessica Rosenworcel last week said she was
concerned with his proposal and called for delaying the vote for
a month. Commissioner Mignon Clyburn said she has been opposed
to payment for faster service.
FCC Votes
The agency's two Republicans have criticized open-futernet
rules, saying they represent unnecessary regulation. In 2010,
rules passed with only Democratic votes at the agency.
Wheeler's revised plan asks whether companies should be
forbidden from allowing fast-lane service for their affiliates,
said the FCC official. Some media companies that offer futernet
service also offer Web content, including Comcast Corp.'s NBC
and on-demand movies.
The revised proposal asks more questions about adopting
rules that would apply a section of law written last century for
telephone networks.
Advocacy groups such as Washington-based Public Knowledge
are asking the FCC to take a stronger approach.
"We are encouraged," Michael Weinberg, vice president at
Public Knowledge, said in an e-mail. "The FCC must take public
concerns about a fast lane and slow lane online seriously, and
the first step to doing so is asking real questions that explore
all of its options."
Robert Quinn, AT&T' s senior vice president for federal
regulatory issues, in a filing posted today on the FCC website
said adopting the more stringent path would pose "risks and
harms" such as deterring investment and "all but scuttle the
administration's ambitious broadband agenda."
President Barack Obama has made it a priority to expand
access to high-speed Internet service, or broadband.
When the FCC considered applying the more-stringent rules
in 2010, AT&T said in a filing the approach could include price
regulation of retail Internet service offerings.
For Related News and Information:
Web Companies See 'Grave Threat' in FCC futernet Fast-Lane Plan
NSN N58ATW6JIJUY <GO>
FCC's Internet Fast-Lane Far From Done Deal as Debate Begins
NSN N4KI006K50XX <GO>
Comcast Bid for Time Warner Cable Dogged by Access Gripes
NSN N59PNH6K50Y7 <GO>
Top Stories:TOP<GO>
FCC stories: NI FCC <GO>
2
ro contact the reporter on thls story:

Todd Shields in Washington at +l--202-624-1909 or
tshields3 @bloomberg.net
To contact the editors respousjble for this story:
Bernard Kohn at +1-202-654-7361 or
bkohn2@bloombem.net
Elizabeth Wasserman, Romaine Bostick
From: Jon Brodkin [mailtQ:jon.brodkln@arsteclmica.com]
Sent: Monday, May 05, 2014 12:32 AM

To: J'.1ark Wigfield; Neil Grace
Subject: Authority for no-blocking rule?
Hopefully a quick question for the morning... did Tom Wheeler ever say what authority the FCC has to prevent ISPs from
blocking content? Wheeler's post from a couple weeks back (http://www.fcc.gov/blog/setting-record-straight-fcc-s-openinternet-rules) says his NPRM will propose "that no legal content may be blocked." But obviously, the court said the FCC can't
impose no-blocking rules with Section 706 authority as I understood it, or at least not with the justification the FCC used. Can
you clarify what legal authority the FCC has to enforce a no-blocking rule that wouldn't involve Title I!?
Jon Brodkin
Senior n' Reporter
Ars Teclmica
Ars Orbiting HQ
From: Schwartz, Matthew [mailto:mschwartz@warren-news.com]

To: Mark Wigfield; Neil Grace
Subject: RE: Peering I interconnection regulation DEFINITELY not going to be considered?
Mark-- In what "other contexts" might the FCC monitor interconnection agreements? Are you referring to the open Title II docket?
Something else?
Matthew S. Schwartz
Wireline Editor
@TechMSS
-----Original Message----From: Mark Wigfield [mailto:Mark.Wigfield@fcc.gov]

Sent: Tue 411/2014 2:05PM
To: Schwartz, Matthew; Neil Grace
That's fine, you can attribute to an FCC spokesman. However, it was not intended as a direct quote, either here or in the other story
From: Schwartz, Matthew [mailto:mschwartz@warren-news.corn]
To: Mark Wigfield; Neil Grace
Why is this on background? It's basically exactly what you toldNJ as an official spokesman. I need this on the record.
Matthew S. Schwartz
Wireline Editor
@TechMSS
---Original Message----From: Mark Wigfield [mailto:Mark.Wigfield@fcc.gov]

Sent: Tue 4/112014 2:03 PM
To: Schwartz, Matthew; Neil Grace
Yes. On background, peering was never part of OI, and the Chairman isn't talking about changing the scope of the OI rules, just
restoring them through use of the court's guidance. But he also said it's an important issue, and the clarification was simply that we're
keeping an eye on it in other contexts.
From: Schwartz, Matthew [mailto:mschwartz@warren-news.com]
To: Neil Grace
Cc: Mark Wigfield
Subject: Peering I interconnection regulation DEFINITELY not going to be considered?
Is this NJ article true? Did a spokesman say this?

http://www .nationaljoumal.com/tech!netfli.x-s-net-neutrality-plea-gets-rej ected-by-tbe-fcc-20 14040 1
"At a press conference Monday, FCC Chairman Tom Wheeler argued that the government has a critical role to play in overseeing how
networks connect to each other. But it is "not a net-neutrality issue," he said.
Asked to clarify the chairman's comment, an FCC spokesman said: "Peering and interconnection are not under consideration in the
Open Internet proceeding, but we are monitoring the issues involved to see if any action is needed in any other context." "
Matthew S. Schwartz
Wireline Editor
@TechMSS
This email has been scanned by the Symantec Email Security.cloud service.
For more information please visit http://www.symanteccloud.com
This email has been scanned by the Symantec Email Security.cloud service.
For more information please visit http://www.symanteccloud.com
Henning Schulzrinne
Monday, February 10, 2014 12:10 PM
Irene Wu
Susan Kimmel
RE: BITAG: on promoting machine-readable data for consumers
From:
Sent
To:
Cc:
Subject:
Henning
From: Irene Wu

Cc: Susan Kimmel
.... - -- .From: Irene Wu
- ..
.. - .... _, .. --
- -------...------

1
-- -------------------- - -- ---- -- ---- .. ..

.,.
To: 'dsicker@bitag.org'
Subject: Re: on promoting machine-readable data for consumers

Yes, then. A standard format that is released in a machine readable form-- better for consumers to comparison shop
and making it easier for the FCC to track what is happening in the mkt.
Am traveling this week, but happy to talk more when I get back.
Best,
Irene
From: dsicker@bitag.org [mailto:dsicker@bitag.org]
Sent: Sunday, February 02, 2014 10:43 AM

To: Irene Wu
Subject: RE: on promoting machine-readable data for consumers
Open Internet Order (and all of the subsequent fall out!).

-------- Original Message -------Subject: Re: on promoting machine-readable data for consumers
From: Irene Wu <Irene.Wu@fcc.gov>
Date: Sun, February 02, 2014 8:34am
To: '"dsicker@bitag.org 111 <dsicker@bitag.org>
Hmmm, probably yes, what's 017
From: dsicker@bitag.org [mailto:dsicker@bitag.org]
Sent: Friday, January 31, 2014 04:00PM

To: Irene Wu
Subject: RE: on promoting machine-readable data for consumers
so let me just ask, do you think that there would be value and BITAG working on a standard
format for 01 related disclosures?
-UIA Exempt1on b
-------- Original Message -------Subject: on promoting machine-readable data for consumers

From: Irene Wu <Irene.Wu@fcc.gov>
Fri, January 31, 2014 9:54am
To: '"ksieh@bitag.org'" <ksieh@bitag.org>, "'dsicker@bitag.org'"
< dsicker@bitag. org >
Dear Doug and Kaleb,
Thanks for your group's presentation at the FCC yesterday. It was good to see you,
Doug, and to make your acquaintance, Kaleb.
On the transparency front, a little over a year ago I was on a White House Task Force to
look at "Smart Disclosure", which in essence examined effective release of data to
consumers, especially data in machine-readable form.
Last year, we released the task
force's final paper. The announcement from the White House is
http://www.whitehouse.gov/blog/2013/05/30/empowering-consumers-through-smartdisclosure-data, the paper itself is
http://www.whitehouse.gov/sites/default/files/microsites/ostp/report of the task force
on smart disclosure.pdf
2
These were is on the heels of an OIRA directive that regulatory agencies, when releasing
data to the public, should release it in machine-readable form (see the memo from Cass
Sunstein, attached). While it doesn't directly bear on what companies do in the market
voluntarily, should a federal agency develop rules that govern disclosure of data, whether
the data is machine-readable would factor into OIRA's review of the rules. This is very in
the weeds in terms of regulatory procedure. Hopefully with your experience at the FCC,
Doug, and your background as an attorney, Kaleb, you understand what this means. If
it's totally confusing, and still of interest to you, I'd be happy to talk to you further.
Several FCC officials were on the task force, and it was led by Joel Gurin, who was chief
of the FCC's Consumer Bureau at the time.
Best,
Irene
From:
Sent
To:
. Subject:
Ruth Milkman
Jonathan Sallet; Shannon Gilson; Gigi Sohn; Philip Verveer; Patrick Halley
FW: Invitation to speak at Media Institute luncheon in March or April...
From: Deborah Ridley

To: Ruth Milkman
Subject: PN: Invitation to speak at Media Institute luncheon in March or April .

Ruth- they are asking for his participation in July or September.
From: Patrick Maines [mailto:maines@mediainstitute.org]
Sent: Monday, April28, 2014 10:58 AM

To: Deborah Ridley
Cc: susanna coto
Subject: Fw: Invitation to speak at Media Institute luncheon in March or April
Dear Ms. Ridley,
As shown in the link embedded in the earlier note, this invitation-only luncheon program attracts an outstanding group of
speakers and attendees.
Appreciate a note from you if the Chairman is interested in finding a date for the purpose.
Patrick Maines
President
The Media Institute
P.S. I admire the Chairman's position on net neuutraliity, as I wrote here:
http://www.mediacompolicy.org/2014/04/articles/digital-technology/net-neutrality-fast-lanes-and-the-usual-suspects/

As you may know, The Media Institute has for years now hosted a highly successful, invitation-only luncheon program,
called Communications Forum. (http://www.mediainstitute.org/CommunicationsForum.php). Virtually every FCC
commissioner and chairman has addressed this group, several more than once.
Commissioner Clyburn is speaking later this month.
I am writing to invite you to be the featured speaker at either our March or April luncheons. We have a hold on hotel space
for the dates of March 26 and 27, and for April 2,3, and 4.
The luncheons begin at noon and end not later than 2pm. The attendees include the sponsors and their guests, Hill staff,
members of the communications bar, media trade association executives, and working journalists. We would expect to
have 1 00+ attendees at any luncheon you addressed.
.
.
Thanks in advance for your timely consideration of this invitation. I'd be happy to answer-any further questions you or an
aide may have.
Patrick Maines
President
The Media Institute
703-243-5700
www.mediainstitute.org

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Federal Communications Commission

Washington, D.C. 20554

VIA ELECTRONIC MAIL

Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:

5 U.S.C. 552(b)(4), 552(b)(5) and 552(b)(6).

Segregation/Review for Discretionary Release

Wireline Competition Bureau

FOIA Officer, FCC

Federal Communications Commission

VIA ELECTRONIC MAIL

Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:

See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).

Wireline Competition Bureau

FOIA Officer, FCC

See 47 C.F.R. 0.461(j).

Federal Communications Commission

VIA ELECTRONIC MAIL

Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:

FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums

5 U.S.C. 552(b)(5); 5 U.S.C. 552(b)(6).

Wireline Competition Bureau

FOIA Officer, FCC

See 47 C.F.R. 0.461G).

Federal Communications Commission

VIA ELECTRONIC MAIL

Freedom of Information Act Request Control No. 2014-400

Dear Mr. Leopold:

5 U.S.C. 552(b)(5); 5 U.S.C. 552(b)(6).

See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).

Wireline Competition Bureau

FOIA Officer, FCC

Examination of Current Policy Concerning the Treatment of Confidential

See 47 C.F.R. 0.4610).

From: Dave Burstein [mailto:daveb@dslprime.com]

Sent: Wednesday, May 07, 2014 7:47 PM

Thursday May 8 10 a.m. California, 1 p.m. New York, 6 p.m. London

From: Latoya Toles On Behalf Of WCBChief

Matthew DelNero, Deputy Bureau Chief

12: 15p- 12:45p

In attendance, will be the following people:

+1 202 637 5600

Please consider the environment before printing this e-mail.

Roisman, Natalie <NRoisman@wbklaw.com>

From: Reisman, Natalie [mailto:NRoisman@wbklaw.com]

From: Roisman, Natalie

Sent: Wednesday, May 07, 2014 8:40PM

Subject: Your panel at the FCBA Annual Seminar, May 17

Dear Julie, Jonathan, and Howard:

Stephens/ Karen <kstephens@ustelecom.org>

If you have any questions, please feel free to contact me,

. Ch.. 'L .S'T'e1econ1

WALTER B. MCCORMICK. JR.

The Honorable Ajit Pai

The Honorable Mignon Clyburn

The Honorable Jessica Rosenworcel

The Honorable Michael O'Rielly

Negative Impact on Investment

Legal Obstacles to Reclassification

Title II Would Fail to Achieve the Objectives Sought by its Proponents

In addition, Title IT regulation would not cover a telecommunication carrier's dealings

NCTA v. Brand X Internet Servs., 545 U.S. 967,991 (2005).