Net Neutrality, USF Broadband Boost Seen From a Negative Section 706 Report Finding
The FCC would bolster its statutory authority to regulate net neutrality, and help undergird the ability to parcel out USF money for broadband, by deciding for another year that Web service isn’t being sufficiently deployed, said agency and industry officials. They said in interviews last week that a negative finding over reasonable and timely deployment of broadband service in the annual Communications Act Section 706 report wouldn’t likely be required for net neutrality and USF broadband authority. That’s under last month’s 10th U.S. Circuit Court of Appeals ruling upholding FCC authority over broadband USF (CD May 27 p1) and January’s D.C. Circuit remand of net neutrality rules.
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The FCC would buttress its authority over net neutrality under the D.C. Circuit ruling and broadband-service subsidies under the 10th Circuit ruling, if it says Section 706(b) isn’t being met, as happened under Chairman Julius Genachowski, said agency and industry officials. Chairman Tom Wheeler May 30 circulated a notice of inquiry on the annual report, after one wasn’t issued last year (CD June 4 p1). The NOI would ask whether to raise by 250 percent to 10 Mbps the minimum download speed to be considered broadband, agency officials have said. Ten Mbps is considered by many to be sufficient for most residential uses. That will be explored in the next installment of this story, in Tuesday’s issue.
The D.C. Circuit’s ruling is seen as giving the commission authority over net neutrality if Section 706(b), on having broadband be timely and reasonably deployed, isn’t met and also under Section 706(a), which tasks the agency with encouraging such deployment. Since regardless of whether deployment is going as it should, the agency has authority to oversee it, the commission still would have a legal case under that section even if it found deployment were acceptable, said industry and other officials. It would be safer for the FCC to rely on both sections, in both court cases, some said. The 10th Circuit ruled the FCC retains USF authority under Section 254, so if a Section 706(b) finding couldn’t be made, the agency would keep broadband-service funding authority, said industry and other lawyers. They said the court also ruled that Section 706(b) gives the agency authority, without addressing 706(a) authority.
"It’s more of a wrinkle” under both rulings if the FCC lacks a negative Section 706 report, said telecom lawyer John Nakahata of Harris, Wiltshire, who hasn’t taken sides on net neutrality. Lacking a negative determination “would add to their sort of explanation burden of why are they undertaking these measures to encourage something that already happened,” he said of net neutrality. “But I don’t think they couldn’t do it.” An FCC spokesman referred us to part of the net neutrality NPRM. It seeks comment on Section 706 authority, a Title II common carrier approach to barring certain kinds of ISP discrimination over content and other issues (http://bit.ly/1iZ2Tvp).
The FCC is “gratified” the D.C. and 10th circuits “recognize the substantive authority of the FCC to use Section 706 in order to accelerate broadband deployment to all Americans,” emailed the commission spokesman Friday. “That provides important legal support for both the Open Internet NPRM and implementation of the Commission’s USF policies."
Going to court with a Section 706(b) finding is like a “belt and suspenders approach with two sections instead of just one,” said Christopher Yoo, professor at the University of Pennsylvania Law School about 706(a) and 706(b). “I don’t think they would be in trouble” without (b), said Yoo, who opposed the 2010 net neutrality order remanded by the D.C. Circuit because it wasn’t a case-by-case enforcement approach. Broadband deployment is reasonable and timely, and any issue with subscription rates being too low is a different issue, he said. He released a paper last week saying 25 Mbps and above service is more widely available in the U.S. than in Europe (CD June 5 p3). The paper was funded by Broadband for America, which represents ISPs and other high-technology companies. “The primary reason people don’t subscribe is they don’t think they need it,” said Yoo. “That’s not an investment problem.”
Raising the speeds considered broadband won’t be “an end run” at net neutrality, said Public Knowledge Senior Staff Attorney Jodie Griffin. Strengthening its Section 706 authority and raising the floor of what’s considered reasonable wouldn’t get the FCC past the D.C. Circuit opinion’s prohibition against banning Web-content blocking, she said. The extra authority wouldn’t “supplant the FCC’s need to reclassify broadband as a telecommunications service in order to implement robust net neutrality rules,” she said. “This is really just recognizing that standards evolve,” Griffin said: Ten Mbps is “reasonable” when some areas could be receiving gigabit speeds. ,