FCC’s grab for new regulatory power could go beyond broadband providers

Wednesday, May 7, 2014
By Paul Martin

TheHill.com
MAY 5, 2014

Internet application and content companies, what some refer to as “edge providers,” are increasingly concerned by the Federal Communications Commission’s (FCC) newfound ability to regulate the Internet, and rightfully so.

For years, edge providers — Pandora, Google, LinkedIn, Facebook, WhatsApp, to name just a few — have flourished from the government’s hands-off approach to the Internet. Both Republicans and Democrats championed a structure that allowed the “application layer” of Internet architecture to be free from government intervention, apart from occasional Federal Trade Commission activity. That is now subject to change.

A very real threat is that edge providers could fall within the reach of the FCC’s newly invented authority to regulate the Internet under Section 706 of the Telecommunications Act of 1996.

Congress never intended to give the FCC that authority. I know because I was in the room, as a congressional staffer, when that deal was made. For years, the FCC held the same conclusion. But in 2010, when the FCC’s attempt to use other statutory provisions to regulate broadband providers failed, it re-interpreted Section 706 as a new legal basis to impose net neutrality restrictions. Although, the D.C. Circuit vacated most of those restrictions in January, the decision explicitly sanctioned Section 706 as an independent grant of regulatory authority.

As a result, we now live in a world where the FCC can arguably adopt almost any rule that conceivably promotes broadband deployment. As Judge Laurence Silberman summarized in his dissent: “Presto, we have a new statute granting the FCC virtually unlimited power to regulate the Internet.”

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