FCC grasps for expanded powers with net neutrality push

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A renewed push at the Federal Communications Commission (FCC) for net neutrality rules could solidify a major expansion of the agency’s authority over the Internet.

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Earlier this year, the D.C. Circuit Court of appeals overturned the FCC’s “Open Internet Order,” which kept Internet providers from blocking or slowing access to certain websites, on the grounds that the agency had overstepped its authority.

But in a major win for the FCC, the court said the agency could rewrite the rules under Section 706 of the Telecommunications Act, which deals with broadband adoption.

Now FCC Chairman Tom Wheeler is seizing on the authority under the telecommunications law to rebuild net neutrality from the ground up. 

Both proponents and critics of net neutrality agree fear the agency’s use of the new powers could open the door to other regulatory actions.

“Once the FCC has a foothold into managing how Internet service providers run their networks they will essentially be deciding which content goes first, second, third, or not at all,” said Rep. Marsha Blackburn (R-Tenn.), a vocal critic of net neutrality rules.

Blackburn on Friday introduced the Internet Freedom Act, which would block the FCC’s new net neutrality plan.

“It’s time for Congress to slam the FCC’s regulatory back-door shut, lock it and return the keys to the free market,” she said.

Other critics of the FCC and its rules worry that the agency will use its broader, undefined authority under Section 706 to justify regulating parts of the Internet ecosystem that have previously been untouched.

The agency could use the authority to write regulations in areas that arguably affect broadband deployment but have traditionally been out of the FCC’s jurisdiction, according to Berin Szoka, president of TechFreedom.

Szoka pointed to the things like cybersecurity standards and copyright enforcement as things the FCC could try to regulate under Section 706.

And while Wheeler is conducting a formal process to rewrite the net neutrality rules, the agency wouldn’t need to conduct a formal rulemaking process every time it wanted to use its Section 706 authority to regulate a new part of the Internet, Szoka said.

In that scenario, “regulation can happen without rulemaking,” he said.

Even groups that support the FCC’s net neutrality rules worry that the court’s interpretation of Section 706 could threaten Internet freedom.

Mitch Stoltz, staff attorney at the Electronic Frontier Foundation, said he fears that a future FCC could force Internet providers to prevent online piracy or allow for government surveillance under the guise of promoting broadband deployment.

“We are all walking a fine line here right now between concerns about overbearing regulation and concerns about monopolistic or abusive practices by Internet providers,” Stoltz said. “I think we’re at risk for both.”

Matt Wood, policy director at Free Press, said his group shares those concerns but noted that it is more concerned about the agency setting a precedent than Wheeler using the expansive power.

“Whatever the current people promise to use or not use, they can’t bind their successors” to those promises, he said.

Since announcing his plan to revive net neutrality, Wheeler and other FCC officials have declined to comment on what exactly the rules might do.

“We’re in the process right now of developing the specifics of what those rules are going to say,” Wheeler said during the FCC’s February open meeting last week.

Wheeler said he would not discuss specifics of the new rules “until we’ve actually written the rules.”

Rather than rewriting the rules under Section 706, Wood said the agency should reclassify Internet providers so that it can regulate them the way it regulates telephone companies.

Reclassifying Internet providers is “the best way to make sure that the FCC has authority over the network but not, as some people say, regulating the Internet,” he said.

Wheeler has repeatedly said he is not taking off the table the option of reclassifying Internet access to more heavily regulate it.

“There are all kinds of tools in the toolbox,” Wheeler said during the agency’s February open meeting. “We’re adding, not subtracting to what’s in that toolbox.”

As the agency rewrites its net neutrality rules under Section 706, most are expecting the FCC to face a legal challenge, regardless of what the new rules say.

"It is inevitable that this rulemaking will lead to a challenge," Szoka said.