FCC Commissioner Michael O'Rielly warns that the FCC could use its proposed new network neutrality rules and their reliance on Sec. 706 authority to target edge providers as well as ISPs.
In an op ed in The Hill, O'Rielly, who was no fan of the old network neutrality rules, says that Pandora, Google, Facebook and others should be worried that their practices could fall within the FCC's "newly invented" authority.
The D.C. federal appeals court that remanded the FCC's anti-blocking and anti-unreasonable discrimination provisions told the FCC that it had the power to support some form of both rules using Sec. 706 authority, which empowers it to take regulatory action to promote the timely deployment of advanced telecom to all Americans.
FCC Chairman Tom Wheeler is using that authority to restore essentially the same anti-blocking rule and a variant of the anti-unreasonable discrimination rule, the latter turned around to be a case-by-case approval of "commercially reasonable" discrimination, rather than a ban, which struck the court as too much like common carrier regs to pass muster. Wheeler has signaled paid priority would likely be a tough ask under the new rules, as it was under the old.
“We now live in a world where the FCC can arguably adopt almost any rule that conceivably promotes broadband deployment," said O'Rielly. "Ironically, the FCC could now start meddling with the very edge providers it has always claimed needed protection from meddling by broadband providers. And the FCC could try to use Section 706 to intervene in many other areas."
Under Sec. 706 of the 1996 Telecommunications Act, the FCC is directed to determine whether advanced telecommunications "capability" is being deployed in a reasonable and timely manner to all Americans, and if it determines that is not the case, it may impose "price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment."
But O'Rielly has pointed out before, and did again, that he was in the room when the section was drafted--as a Hill staffer--and Congress did not mean that to give the FCC the authority to regulate broadband as it has attempted to do.
O'Rielly was clearly arguing for the FCC not to extend its 706 authority to the edge, or to us it to justify new net neutrality regs on ISPs, either. "Expect clever regulatory attorneys to fill the record with arguments that using Section 706 to impose nondiscrimination rules on Google’s or Microsoft’s search algorithms or Apple’s operating system are needed to encourage broadband deployment," he wrote. "So I worry that the FCC is about to go down a slippery slope that will create burdensome regulations and uncertainty for broadband providers and edge providers alike."