Ed Wyatt has a great profile of the FCC Chairman Tom Wheeler’s first 100 days office, quoting us on the dangerous implications of how broadly the D.C. Circuit’s majority interpreted Section 706:
“It gave the F.C.C. a lot more power to do anything it wants to a lot of Internet companies,” said Berin Szoka, a founder of TechFreedom, which promotes digital rights and privacy. “It means three unchecked bureaucrats at the F.C.C.,” the number required for a majority on the five-member commission, “get to regulate the Internet however they want without any oversight.”
Shortly after the decision came down, Geoff Manne & I explained in Wired that the majority’s decision (correct or not) could be read – and probably will be read – as giving the FCC power to regulate:
- Any company or issue within the FCC’s subject matter jurisdiction (“communications”)
- In a way that doesn’t violate some specific provision of the Communications Act
- Provided it can make some argument that doing so will promote broadband – essentially a blank check, since the court made clear it would defer to the FCC on this.
So, while there are some limits on the FCC’s new-found general power over the Internet, they may not stop the FCC from doing a wide variety of things that Congress never authorized the agency to do, from mandating copyright filtering or decency policies to regulating the very “edge” providers Net neutrality supporters claim to be concerned about. Even some Net neutrality advocates like Harold Feld realize this danger. If the FCC tries to use its Section 706 power informally, through case-by-case enforcement or “agency threats,” even limits #1 and #2 may never actually get litigated.
In a speech today at Silicon Flatirons, FCC chairman Tom Wheeler made clear he interprets Section 706 broadly – and discussed at length the Supreme Court decisions granting broad deference to the FCC on interpreting ambiguous statutory language.
Get ready for a much more “active” FCC. Whatever your views on regulation, you may not like what three FCC Commissioners do with their broad power to decide what’s in the public interest.