On Friday, TechFreedom filed comments on the FCC’s annual inquiry into whether broadband is being deployed in a “reasonable and timely” fashion under Section 706(b) of the 1996 Telecommunications Act. The Notice of Inquiry seeks comment on how concerns about privacy and cybersecurity may slow broadband adoption, thus signalling that the FCC may expand its use of Section 706 beyond net neutrality to reach edge providers as well, despite having no specific statutory authority to do so.

“A chill wind blows through Silicon Valley from the East,” warned Berin Szoka, President of TechFreedom. “In 2010, after the courts first said the FCC didn’t have authority to regulate net neutrality, the FCC announced that, upon re-reading the Act, it had found in Section 706 a blank check for regulating the entire Internet, which the Commission had somehow previously failed to notice. This Notice reminds America’s tech sector that net neutrality may only be the beginning, and that the FCC may be coming for them next.”

The Commission’s reinterpretation of Section 706 would authorize regulation not merely over broadband providers but also Google, Twitter, Facebook and the countless startups building new apps and services.

“The Inquiry doesn’t just signal that a regulatory winter is coming,” continued Szoka. “It will inevitably have a quasi-regulatory effect, especially over small companies, who must now begin worrying that the next shoe could drop at any moment. Under the FCC’s preposterous re-interpretation of Section 706, the FCC apparently would not be required to engage in formal rulemakings, but could bring enforcement actions against practices it deems to raise concerns that discourage broadband adoption and thus slow broadband deployment. This will chill entrepreneurs and investors trying to deliver sites, apps and services.”

“The FCC can’t put the 706 genie back in the bottle, but it can ask Congress for clear legislative authority over net neutrality and appropriately narrow power to remove barriers to broadband deployment,” concluded Szoka. “Those urging the FCC to invoke Title II because of the dangers of Section 706 miss the point: grounding new net neutrality rules in Title II will not stop the FCC from using Section 706 to regulate privacy, cybersecurity, copyright, indecency or anything else the FCC asserts relates to broadband deployment. Reclassification would simply give the FCC a second source of broad power.”

The FCC’s Notice of Inquiry also proposes to raise the minimum speed threshold, which would allow the FCC to pooh-pooh progress on broadband deployment and thus make it easier for the FCC to justify using its purported powers under Section 706. “The FCC’s regulatory agenda has blinded it to the enormous progress made in broadband deployment,” said Tom Struble, Legal Fellow at TechFreedom, citing massive increases in both wireline and wireless broadband since 2010.

“Those urging the FCC to manipulate the data to justify regulation of broadband today may find the FCC using the same outcome-driven methodology against them tomorrow. Rather than inventing arbitrary baselines on how Americans ought to use broadband, the FCC should focus on assessing actual broadband usage patterns and objective measures of investment and competition,” concluded Struble.

Szoka and Struble are available for comment at media@techfreedom.org.

Find/share this release on Facebook or Twitter, and see our other work on Section 706 and promoting broadband deployment, including:

  • “The Feds Lost on Net Neutrality, But Won Control of the Internet,” Berin Szoka and Geoffrey Manne in Wired.com
  • “Don’t Blame Big Cable. It’s Local Governments That Choke Broadband Competition,” Berin Szoka and Jon Henke in Wired.com
  • “Net Neutrality Regulation is Bad for Consumers and Probably Illegal,” a summary of TechFreedom’s legal comments to the FCC on Net Neutrality