Net Neutrality

Floor Speech

Mr. WARNER. Madam President, I rise in opposition to S.J. Res. 6. This resolution would basically roll back the FCC's compromise over what we have all been debating: net neutrality. This is a subject area I have more than a passing interest in. It is a subject I had the good fortune to be involved in during the practice of my business for over 20 years before I got involved full time in politics and public service.

I, and I know the Presiding Officer and probably all of us in this body, recognize that the power of telecommunications and the power of the Internet to transform people's lives has been remarkable. Demand for Internet use is growing dramatically. Today, nearly 2 billion people use the Internet. By 2015--and that is a mere 4 years from now--that number is expected to reach 2.7 billion.

That is pretty significant: 2.7 billion people using the Internet out of a total worldwide population of 7 billion folks. We are rapidly hitting the point where nearly half the world will use the Internet in one form or another to communicate, to effect commerce, to socially interact. This is a tool. Making sure this tool, this network, this technology, this transformative field truly remains open, free, and available to all and is not unduly hindered by government regulation is something we all aspire to. Yet even as we see this tremendous growth in the Internet, we see constraints--constraints put on by spectrum resources and access to high-speed broadband. Mobile app providers seem to be multiplying exponentially day by day. There are already over 600,000 applications or ``apps'' for the iPhone. Android--a more recent entrant into the market--now has over 500,000 ``apps.''

One of the most incredible things is that the United States lays claim to inventing the Internet which was developed by government research linking a whole series of computer networks back in the late 1980s and into the early 1990s. While the United States has been at the forefront of Internet development, unfortunately due to broadband constraints and spectrum constraints, the United States, which used to be a leader, is no longer in that leadership role. For example, homes in South Korea have greater access to faster, more advanced wireless networks and broadband than we do.

So the question in the resolution we are debating is: How do we make sure we continue to grow access to broadband? How do we make sure the Internet, with all its wonderful new applications, is available in the most open and technology-neutral way?

The FCC has wrestled with this issue for some time, and the FCC is the appropriate place to be wrestling with this issue. Last December, the FCC came out with an order--an order that reached some level of compromise between a series of very strong competing interests. By no means do I believe the FCC December 2010 order is perfect. But it does represent a dramatic step forward in that a majority of the players, candidly, in the industry have reached some accommodation.

I do not believe this order in itself is a sufficient answer. I do believe we in Congress are going to need, at some point, to come back and review the Telecommunications Act of 1996. While that offered great promise--and I was someone who was still in the private sector at that moment in time, someone who thought we were going to see true interconnection opportunities for truly local competitive access in terms of telephone services--that did not come to pass. As a matter of fact, I have a number of companies that went down the tubes that I invested in that assumed that 1996 Act would open those kinds of activities. It did not come to pass.

But having Congress revisit the 1996 Telecommunications Act is not what is being debated today. What is being debated is whether we go ahead and allow the FCC's compromise proposition to move forward or whether we introduce further politics into this issue when we ought not let politics stand in the way of technology and innovation moving forward.

I know some of my colleagues on the other side of the aisle who feel otherwise. They think the FCC's compromise order puts too much government regulation on innovation. I must respectfully disagree. If we were talking about too much government regulation of innovation, I would be strongly standing with those colleagues saying that is not what we ought to be doing.

What we are doing, as we debate this so-called net neutrality issue, is talking about the rights and responsibilities of network owners and operators to manage the Internet and, quite honestly, to allow them to run successful businesses in a free and open way.

We are also talking about the rights of consumers to have access to lawful content on the Internet without any prejudice. Without having that network provider choose one content provider over another in terms of who gets first dibs, first access to their network.

This issue has been debated on and off not just this year but for a number of years. In many ways, the current history on this issue goes back to 2005, when both the Federal Communications Commission and the Supreme Court determined separately that broadband services should be reclassified as information services under the 1996 Telecommunications Act instead of as telecommunications services.

For those who do not live within the rather esoteric world of telecom regulations, what does this mean in plain English? Information services have always had a lighter touch of regulation than have telecommunications services.

Think about the original regulation of telecommunications services going back almost to the 1934 act, when we had, in effect, one telecommunications provider. It was Ma Bell. We could pick our phone of any type, as long as it was black, and everybody paid the same access fee. When we had that kind of monopolistic situation telecommunications had to be regulated in a more appropriate way to make sure the consumers were protected.

As we saw the evolution of telecom services and the breakup of Ma Bell and a move to multiple providers, telecom services still have required a slightly heavier hand of regulation than for information services.

Back in 2005, the Supreme Court and the FCC said that because we have this brand new area of broadband--an area that in 2005 we did not fully realize the potential of, frankly, even in 2011, I am not sure we fully realize the potential--we are going to view this as information services and, consequently, have less regulation. That should be viewed as a good sign.

Contrary to what some in this debate say, there has never been a time when the management of the Internet or the telecommunications networks--which make up, in effect, the backbone of our Internet system--has not been regulated. Again, as I mentioned earlier, networks--whether they are passing voice, data, now video or others--all have had some form of regulation going back to the Telecommunications Act of 1934.

The question we are asked here today is: What kind of rules do we want to have as a society to make sure everyone can have free and unfettered access to the Internet and to lawful content in a way that is not biased or prejudiced by

the telecommunications provider in the background?

To me, that means Internet service providers have the right to manage the networks as best they can. That means network providers have to have the ability to manage some level of traffic so they can generate enough revenues to continue to build out their networks, particularly so rural communities can have access to these services.

I know the Acting President pro tempore knows of parts of northern New Hampshire where there are still areas that do not have full high-speed broadband Internet access. I know in my State of Virginia there are parts of Southside and southwest that do not have access to full high-speed broadband connections.

While broadband connectivity does not guarantee economic success, it is a prerequisite for any community in the 21st century if they are even going to get looked at as a possible location for new jobs. So we have to make sure all communities get access to broadband. That means we have to allow the network providers at least enough of a rate of return to give them the incentive to build out their networks.

But it also means that while they have to be able to manage their networks, these Internet service providers, cannot discriminate against content providers' access to networks. It does not mean a network provider ought to be able to say: I like this content more than that type of content, particularly if the network provider happens to own that content and somehow moves it to the front of the line. That goes against the grain of everything that has been about providing telecommunications in this country since the 1934 Act.

If this was a simple matter, the industry, the FCC, and others would not have been wrestling with it as dramatically as they have over the last 5 or 6 years. The fact is, network management is increasingly complicated. So complicated that sometimes it is hard to tell exactly what is going on behind the scenes.

As a former telecommunications executive and somebody who spent 20 years being involved in helping to try to build out at least part of the wireless network in this country--but as somebody who also is at this point falling behind on all the current technological innovations--I would like to comment I was very current circa 1999, which puts me a bit behind in 2011. While behind, I do recognize and understand that network management in 2011 is extraordinarily challenging.

New technologies that allow for prioritization of network traffic, deep packet inspection, and the increasing use of metered services and usage-based pricing--all these factors, combined with an effort to make sure we are technology neutral in how we get this high-speed broadband information--whether it is wired, wireless, satellites or otherwise. This all makes these issues extraordinarily difficult for policymakers to wrestle with.

It was in that vein that the FCC conducted a 2-year process to address concerns about maintaining competitively neutral access to the Internet. So in December of 2010, the FCC adopted an Open Internet Order which is expected to be implemented on November 20th of this year, 2011. As I said at the outset, the order they put forward is not perfect. There are many in the industry who have a partial bone to pick with various technical components. But the fact is I give Chairman Genachowski great credit for managing to thread the needle in way that while no one is totally happy, no one is totally unhappy. The issue of net neutrality has been dealt with by the order and we can move on to the next step of the debate. That is, we can turn to making sure we actually complete the buildout of broadband networks, particularly to the rural communities around America.

What does the FCC order do? It basically sets three basic rules for how network owners, ISPs, must handle Internet traffic.

First, it offers greater transparency about fixed and mobile network management practices to both consumers and content providers. This is terribly important. Without that transparency, without that knowledge, to see what we are getting as a consumer--or if you are a content provider, making sure your traffic is not being bumped out of line by some large network operator--is terribly important.

Second, it prevents fixed and mobile network providers from blocking traffic generated by competitors to varying degrees. What does this mean? It means if you are a network manager, if you are a network provider--and many network providers are now starting to also own content as well--you have to make sure that competitors are treated fairly. If you are a competitor in terms of being a content provider, you want to be sure the network you may be putting your traffic on that has its own set of content is not allowing its network-owned content to get priority, to get an unfair advantage.

If the networks are going to be open and accessible, neutral networks that we have all come to expect from our telecommunications networks in the past, we have to make sure there is no bias.

The second part of the FCC order tries to make sure these fixed and mobile network providers aren't able to block traffic and give their own content priority.

Third, it prohibits fixed broadband providers from unreasonable, discriminatory practices. Again, this is about content, but it also tries to get at that issue of how do we deal with those folks who have huge amounts of content that can clog the network. We have to make sure that we have open access, but we cannot have people overwhelm the network with their particular content without the ability to price that into the network provider's basic service offerings.

I know many of my colleagues' eyes are starting to glaze. I even see some of the pages' eyes are starting to glaze as we dive into some of the intricacies of telecommunications practices. But at the end of the day, what the FCC did in 2010 will be implemented later this month--unless the Senate rejects it and throws all the work out the window and says let's go back to square one. I think would actually do great harm to the progress made and provide even greater uncertainty to one of the fastest growing areas of our economy, telecommunications and broadband.

If we reject this S.J. Res. 6, which I hope we will, and allow this compromise that the FCC worked out to move forward, I believe it will allow the kind of broadband growth, the kind of Internet growth we have all come to expect. And it will help create new jobs in this country.

A couple final points. The wireless issues are a particularly challenging policy area still to be addressed. Wireless is a newer technology. The FCC decided in the Order to adopt a lighter hand of regulation rather than the more strict, full telecommunications regulation of the 1996 Act. This is because of the tremendous growth in the nascent area of mobile services. As of December 2010, 26 percent of U.S. households were wireless only, compared to about 8 percent of the households 5 years ago. The point here is a dramatic one. I think about my kids who, as they start to move into their own homes or even into college, don't even have a phone in their apartment at college. They rely entirely on wireless. We have to make sure we can continue to build out these wireless networks in the most robust way possible. I think the FCC basically got it right by not putting any more heavy-handed regulation on wireless.

In closing, the real issue is how do we ensure that consumers and content providers are treated fairly. The Internet was designed as an open medium, where every service and Web site had an opportunity to gain a following and to be successful. This philosophy allows bloggers to compete with mainstream media and entrepreneurs across all sectors to compete globally. Small and medium businesses that rely heavily on Web technologies grow and export two times as much as businesses that don't, according to McKinsey.

Some have argued that neither the Congress nor the FCC should do anything in this area because there isn't a widespread problem currently. It is important to remember that the reason the Internet has been so successful has been the fact that no one has been able to control it--no network provider alone, no content provider alone. I hope that never changes.

I do believe the FCC Order should be allowed to be implemented. It helps set minimum rules of the road that will allow Internet growth, broadband growth, mobile growth, all areas where the United States can regain the lead and continue to create jobs and advance prosperity.

With that, I yield the floor and suggest the absence of a quorum.

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