FCC Basing Network Neutrality Authority, In Part, on Broadband Deployment Argument

The Federal Communications Commission has better arguments to shore up its authority to enforce network management rules than Section 706 of the Telecommunications Act of 1996. Really. Trust us.

Section 706 requires the agency to make an annual report to Congress on whether broadband is being deployed to all Americans in a reasonable and timely manner. In instances when the agency concludes "no," the act also empowers the FCC to move toward fixing that. But the notion that network neutrality rules would help spur deployment is overwhelmingly rejected by rules opponents, who say such regulations would actually hinder investment. Even the most ardent network neutrality proponents rarely cite deployment as a reason to enact such rules, preferring to wage arguments about promoting free expression and forestalling potential Internet fees. The argument that net-neutrality rules would promote deployment goes like this: the rules ensure that Internet companies can get their content to users and continue producing more content, increasing the bandwidth demands on broadband providers and spurring them to build out their networks.

But when FCC Chairman Julius Genachowski used that logic, network neutrality-opponents balked. “It is possible that the FCC has new economic research to unveil, but the vast majority of economists, analysts and investors agree that new Internet regulations and policy uncertainty will deter investment, slow job creation and undermine broadband deployment,” Internet Innovation Alliance Co-Chairman Bruce Mehlman told The Hill at the time.

It's not just industry that questions the use of Section 706. The public interest community, which wants the agency to use the most solid argument possible to underpin the rules, recoiled at the notion that Section 706 can be used to justify the commission's net-work neutrality actions. "This argument has procedural problems, legal problems, and no basis in the record. It would apply only to the 14-24 million Americans the FCC found lacked adequate access to broadband," said Harold Feld, legal director at Public Knowledge.