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FCC Expected to Announce New Tack on Net Neutrality Soon

A section of the Telecommunications Act of 1996 could be the legal backbone for future rules.


Federal Communications Commission chairman Tom Wheeler said at a conference this afternoon that he will announce “in the coming days” what he plans to do about the agency’s now-defunct net neutrality rules, which were struck down by a federal appeals court last month.

Wheeler is expected to roll out his new plans for net neutrality rules within the next week or so, according to one FCC official. But he provided a glimpse into his thinking about the matter today, when he highlighted how the court’s decision bolstered the FCC’s authority to act.

Wheeler has said before that the agency doesn’t plan to give up on enforcement of net neutrality rules, which would prevent broadband providers from deliberately slowing or blocking legal content.

Despite striking down the net neutrality rules, the federal appeals court upheld the agency’s assertion that it had legal authority over Internet providers under a section of the Telecommunications Act of 1996. The FCC argued that Section 706 of the law, which wasn’t written with the Internet in mind, gives the agency authority to encourage the spread of high-speed broadband networks. The federal appeals court agreed.

Wheeler hinted broadly today that the agency would use Section 706 as the legal backbone for future rules to police Internet lines and prevent discriminatory behavior by broadband providers. He said in the speech:

(The court) affirmed that Section 706 of the Telecommunications Act of 1996 gives the FCC authority to encourage broadband deployment by, among other things, removing barriers to infrastructure deployment and promoting competition. It also found that the goals of the Open Internet Order are within the scope of authority granted to the Commission. … Bigger picture, the FCC has the authority it needs to provide what the public needs -– open, competitive, safe and accessible broadband networks. Indeed, that we have authority is well-settled. What remains open is not jurisdiction, but rather the best path to securing the public interest.

Some net neutrality proponents have argued that it would be safer for the agency to re-regulate Internet lines under rules written for phone networks to avoid more successful legal challenges to net neutrality rules by broadband providers. The FCC won’t take that option off the table, according to one FCC official, although it isn’t the preferred method of moving forward. Instead, Wheeler may just propose new net neutrality rules based on the legal authority recently affirmed by the court and take the agency’s usual complaint-based approach to enforcement.

People who didn’t agree with the FCC’s efforts to write net neutrality rules during its first two attempts aren’t expected to be happy about the next try, either. Several have taken to their keyboards to complain. Activists at the free market tech think tank TechFreedom have already begun sounding alarm bells that the appeals court decision gives the FCC freedom to regulate basically anything on the Internet.

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