Originally published: February 23, 2014
Last updated: March 5, 2014 - 8:49am
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.
Earlier this year, the DC 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 fear the agency’s use of the new powers could open the door to other regulatory actions.
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 Chairman 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. 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 Chairman 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.