Net Neutrality Order Cites VoIP, Streaming for Ancillary Authority
The FCC has ancillary authority to adopt and enforce net neutrality rules because VoIP, online broadcasting and video streaming are all competing with regulated services, Chairman Julius Genachowski’s proposed net neutrality order states, said an industry official and two high-ranking agency officials. The draft order also says that the commission has the direct authority to enforce net neutrality because it has already found that broadband Internet is not being deployed in a “reasonably and timely fashion,” they noted (CD Dec 3 p1).
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Section 706 of the Communications Act gives the FCC authority to act if it finds that advanced communications aren’t spreading at a reasonable or timely rate. Last summer, the FCC released its sixth broadband deployment report, saying 14 million-24 million Americans couldn’t get high-speed access to the Internet and the prospect for helping them was “bleak” (CD July 21 p1). Industry groups and Republican Commissioners Robert McDowell and Meredith Baker condemned that report immediately, saying the FCC had changed the speed metrics. At the time, the chairman’s office dismissed concerns that the report could lead to more regulation.
The broadband deployment report now is a key element in Genachowski’s order, the industry official and FCC officials said. The FCC officials had read the order and the industry representative was briefed on its contents. When Genachowski said that he was putting net neutrality on the December FCC meeting agenda, senior staff said that part of the argument rested on Section 706, but did not discuss specifics (CD Dec 2 p1). Genachowski’s spokeswoman declined to comment.
Proceeding under Title I has helped Genachowski patch together a coalition of public interest and industry groups that view the net neutrality order as a painful but necessary compromise. Some on the eighth floor are still skeptical the order is sufficient to answer the U.S. Court of Appeals for the D.C. Circuit’s concerns in the Comcast decision, agency officials said Wednesday. One said the order’s ancillary argument was “interesting and maybe cute” but doubted it could survive a legal challenge.