Net Neutrality advocates claim they want the FCC to micromanage the Internet to prevent Internet Service Providers (ISPs) from discriminating against their competitors’ content. Many of these advocates want the FCC to use its authority under Section 706 of the 1996 Telecom Act to “promote broadband deployment” as a legal basis for banning paid prioritization.

As we argued in our legal comments to the FCC on Net Neutrality, this logic would not hold up in court. But in the meantime, lengthy litigation would cripple investment and discourage ISPs from upgrading their networks.

Proponents of the FCC’s new interpretation of Section 706 have assured their critics that the FCC would simply stop at regulating ISPs, and that edge/content providers, such as Google and Facebook, wouldn’t get caught in the fray. Given the FCC’s broad interpretation of Section 706, however, this scenario is unlikely. As TF’s Berin Szoka explained in Comm Daily (subscription only):

“No matter what the FCC does right now, the authority it has claimed under [Telecom Act] Section 706 would allow it to regulate any edge provider just as it would allow [the agency] to regulate any broadband provider,” Szoka said. The FCC has already “opened the door” to the regulation of edge companies, he said.