Today, TechFreedom filed comments in response to the Federal Communications Commission’s (FCC) Report and Order and Notice of Proposed Rulemaking (NPRM) on the assessment and collection of regulatory fees for FY 2023. In these comments, TechFreedom  addresses whether the FCC should adopt “new regulatory fee categories”—and explains that the Commission’s actions must be grounded in clear statutory authority. 

“The FCC has no statutory authority to impose regulatory fees on unregulated entities,” said James Dunstan, TechFreedom General Counsel. “For at least the third year in a row, the Commission asks whether it should create ‘new regulatory fee categories.’ In prior years, the FCC declined to add such categories, including for those who receive ‘advantages’—previously referred to as ‘benefits’—from the Internet. Before the FCC can regulate an entity, or levy regulatory fees, the Commission must have actual authority over the entity. Courts have addressed this fundamental principle for over 50 years and have several times made clear where the FCC’s ‘ancillary authority’ ends.”

“West Virginia v. EPA limits the extent to which the FCC can regulate through ancillary authority,” Dunstan continued. “Agencies are not free to find a vague provision in their governing statute and use it as a launching point to regulate. Even worse, given that every individual is ‘advantaged’ by the FCC’s efforts to expand broadband and close the digital divide, the FCC would be free to collect regulatory fees from every consumer, every business, and even every machine connected to the Internet. The FCC effectively would be erecting massive toll booths on the Internet.” 

“Imposing such fees goes against decades of FCC policy,” Dunstan concluded. “These fees run contrary to any notion of jurisdictional limits on the FCC. For example, the Commission has made clear that social media platforms and other edge (content) providers on the Internet are not subject to its jurisdiction. To reverse course now and claim authority over the edges of the Internet violates Congress’s goal in the 1996 Telecom Act ‘to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.’”

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About TechFreedom:

TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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