#section 706

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All briefs in the case are available here. See more of our work on Section 706 and the FCC, including:

“The Feds Lost on Net Neutrality, But Won Control of Internet,” an op-ed in Wired by Berin Szoka and Geoffrey Manne

“Congress could have resolved this issue years ago—and likely would have if the FCC had stayed within the bounds of law,” explained Szoka. “Republicans led a veto-proof majority in 2006 to give the FCC clear authority over core net neutrality concerns. Democrats tried to broker a deal in 2010. This year, Republicans have offered to essentially reinstate the FCC’s 2010 rules. All that remains in the way of a legislative deal is the FCC’s obstinance — and the angry clicktivist mob that has made it impossible for Congressional Democrats to finally resolve this fight without giving the FCC a blank check to regulate the Internet or impose billions in new broadband taxes.”

“In 2010, the FCC’s institutional obsession with self-aggrandizement led it to the preposterous claim that Section 706 allows it to regulate any form of ‘communications’ in any way that it claims, however tenuously, will promote broadband investment,” continued Szoka. “After the court struck down the FCC’s 2010 rules last year, the FCC could have used this power to tailor its rules to ensure that they did not impose full-blown common carriage. Instead, the FCC chose the most draconian route possible: equating the Internet with the telephone network in order to claim the sweeping discretion given to the FCC in 1934 to both tame and perpetuate the AT&T telephone monopoly.”

”The FCC claims it will only use its vast new powers to police broadband, but its legal theories erase the once-clear line that protected ‘edge’ companies from heavy-handed Title II regulation,” warned Szoka. “Even worse, expanding the definition of ‘telecommunications’ could allow the FCC to give the FBI what it knows Congress cannot, politically: a ban on end-to-end encryption. The FCC could use its logic for reclassifying mobile broadband to impose the 1994 Community Assistance to Law Enforcement Act on edge services like chat and video platforms.”

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We can be reached for comment at [email protected]. See some of our work on net neutrality and Title II, including:

TechFreedom’s opening brief and reply brief challenging the FCC’s Internet regulation

“3 Reasons Why We’re Challenging the FCC in Court,” a statement from TechFreedom summarizing its motion to intervene against the FCC’s Open Internet Order

Highlights from legal and policy comments filed by TechFreedom and the International Center for Law & Economics on net neutrality, and our reply comments

“The FCC’s Net Neutrality Victory is Anything But,” an op-ed by Geoffrey Manne, in Wired

Coalition letter urging Congress to rein in the FCC’s authority to regulate the Internet

The Commission is currently failing to adequately promote broadband deployment, but there are several steps it could take to remedy this problem. For a start, the FCC should evaluate what progress has been made under the Broadband Action Agenda within the National Broadband Plan, and then produce an updated version of the plan with clear steps and benchmarks for promoting broadband.

The FCC should also work to revitalize the Federal-State Advanced Services Joint Conference. The Conference, which was established to facilitate dialogue among federal and state governments on broadband deployment, has convened only once since 2009, and its members consist only of the five FCC commissioners and four public utility commission members from around the country. Because of the limitations on membership in the Conference, the Commission should also establish an advisory committee with members from the federal, state and local levels of government, as well as from the private sector, academia and other interested organizations.

“This is a polarizing distraction from the real issue: clearing barriers to broadband deployment and building fiber-ready infrastructure, primarily at the local level,” continued Szoka. “If cities want faster broadband and more competition, they should start by cutting fees and red tape. Every time a street is dug up, a ‘Dig Once’ conduit should be installed underneath and leased to private providers. Such policies could greatly speed up broadband upgrades and entry by new providers like Google Fiber. Ultimately, these pro-deployment reforms must be implemented by Congress, state legislators and municipalities. Federal preemption legislation to set consistent standards may well be appropriate, just as it was when Congress clearly ordered the FCC to ensure that local zoning laws didn’t hamstring home installation of satellite TV dishes. But by starting yet another partisan fight about the FCC’s overreach, Tom Wheeler is poisoning the waters for real pro-deployment reforms.”

“The FCC is trying to sidestep its 2004 loss at the Supreme Court on this issue,” explained Szoka, citing Nixon v. Missouri Municipal League, in which the Court struck down the FCC’s preemption of an outright state ban on muni broadband because, while Section 253 of the Communications Act specifically authorized FCC preemption, it failed to make “unmistakably clear” whether that applied to state laws governing muni broadband.

“The FCC knows it’s on far weaker legal ground today,” concluded Szoka. “Section 706 doesn’t mention preemption at all; indeed, only by claiming that Section 706 is inherently ambiguous can the FCC argue with any plausibility that Section 706 confers any authority at all. Of course, Section 706 can’t be both ambiguous and unmistakably clear, so the FCC is trying to change the legal standard, claiming the Communications Act gives it sweeping preemption powers over any state laws governing telecom services short of outright bans. This flies in the face of other Supreme Court decisions recognizing states’ ‘absolute discretion’ to limit the powers of their municipal corporations. And even before a court reaches these federalism questions, it may reject the FCC’s absurd claim that Section 706 gives the agency carte blanche to do whatever it asserts will somehow promote broadband.”

Szoka can be reached for comment at [email protected], and and see our other work on Section 706 and promoting broadband deployment, including:

“We Need More Google Fibers, Not Government-Run Internet,” a statement on President Obama’s white paper on “Community-Based Broadband Solutions”

“The FCC’s Section 706 Power Grab is Dangerous, and Ignores Marketplace Realities,” a summary of our comments on the FCC’s annual report on broadband deployment

“The Feds Lost on Net Neutrality, But Won Control of the Internet,” Berin Szoka and Geoffrey Manne in Wired.com

“Don’t Blame Big Cable. It’s Local Governments That Choke Broadband Competition,” Berin Szoka and Jon Henke in Wired.com

“Net Neutrality Regulation is Bad for Consumers and Probably Illegal,” a summary of TechFreedom’s legal comments to the FCC on Net Neutrality

“Pretending broadband providers aren’t staying ahead of user demand provides some political and legal cover for Wheeler to justify the two biggest power grabs in FCC history,” continued Szoka. “First, the more negative the FCC’s depiction of the broadband market, the more emboldened it will be to exercise the power it has, absurdly, claimed under Section 706 to regulate the entire Internet. Wheeler’s plan to use 706 to preempt state laws on muni broadband is just more political theater, since it’s sure to fail in court on federalism grounds. Next up may be FCC regulation of privacy and cybersecurity — Silicon Valley, beware! Second, Wheeler will cite the supposed lack of broadband competition to justify reclassifying broadband under Title II rules designed for true monopolies — and to back off his promises of broad forbearance from Title II’s many unnecessary provisions.”

“Meanwhile, in the real world, the broadband picture has never been brighter. 2013 saw continued increases in broadband speeds, and the U.S. far outstripped the rest of the world in mobile broadband,” concluded Szoka. “2014 also saw massive upgrades of outdated telco DSL networks to next-generation VDSL2 technologies, bringing 25+ Mbps service to over half the country, but you won’t see any of that in the report because it’s based entirely on 2013 data — measured against a benchmark that won’t be needed for years. The sooner the FCC stops playing Report Theater, the sooner we can focus on what Congress intended: ensuring that all Americans have meaningful Internet access, not the ‘needs’ of urban elites and — and the sooner we can focus on making private broadband deployment easier, especially by new players like Google Fiber.”

Background

The FCC’s own data show that the number of connections of at least 10 Mbps increased by 104% in 2013.

In 2013, U.S. carriers spent about four times more on network infrastructure per subscriber than the rest of the world, and 4G LTE networks reaching 30% of Americans, compared to just 4% of Europeans.

An estimated 2% of Americans have a 4K television and not until 2018 is the number expected to reach even 10%.

Americans sit an average of 7-10’ from their televisions. At 8’, the difference between HD and 4K is imperceptible on screens smaller than 60”. At 10’, the screen must be at least 75’.

Netflix has admitted that a 4K stream will only require 15 Mbps anyway but consistently overstates its ‘recommendations’. Even on Google Fiber’s 1,000 Mbps service, the average Netflix streaming speed is just 3.7 Mbps.

Szoka can be reached for comment at [email protected], and and see our other work on Section 706 and promoting broadband deployment, including:

“The FCC’s Section 706 Power Grab is Dangerous, and Ignores Marketplace Realities,” a summary of our comments on the FCC’s annual report on broadband deployment

“The Feds Lost on Net Neutrality, But Won Control of the Internet,” Berin Szoka and Geoffrey Manne in Wired.com

“Don’t Blame Big Cable. It’s Local Governments That Choke Broadband Competition,” Berin Szoka and Jon Henke in Wired.com

“Net Neutrality Regulation is Bad for Consumers and Probably Illegal,” a summary of TechFreedom’s legal comments to the FCC on Net Neutrality

“If Republicans really want to stop the FCC from imposing Title II on the Internet, they need to offer a grand bargain,” suggested Szoka. “Republicans can’t accept a deal that leaves the FCC with a blank check to regulate the Internet. The same edge companies also pushing for net neutrality regulation should also fear that the FCC will use Section 706 to regulate them, too. Democrats are fixated on letting the FCC use 706 to preempt state laws on muni broadband, yet delude themselves if they think this will stand up in court. The solution is obvious: clarify that Congress never intended 706 as a sweeping grant of authority but preempt state laws that truly hinder muni broadband deployment. Most Congressional Democrats voted for that compromise in the Comm Act Update of 2006.”

“Muni broadband should be authorized only as a last resort,” concluded Szoka. “Cities should first have to cut red tape and fees, and offer to lease access to smart infrastructure like Dig Once conduits and poles. There are a host of other ways Congress could implement the lessons learned by Google Fiber, Verizon and other private companies as they’ve struggled to deploy new networks. If Democrats won’t even discuss that deal, we’ll know that their talk of net neutrality and broadband competition has merely been cover for their real goal: returning to the bad old days of regulated monopoly.”

Szoka can be reached for comment at [email protected]. See more of our work on net neutrality and Title II, including:

Coalition letter urging Congress to rein in the FCC’s authority on net neutrality, which was entered into the Congressional record today

DontBreakThe.Net, TechFreedom-led grassroots, coalition effort against Title II

There’s No Middle Ground on Title II, Berin Szoka

A Third Way on Muni Broadband: Governments Must Remove Barriers to Private Broadband Deployment, Berin Szoka

Tech Policy Offers Republicans Best Opportunity to Lead, Berin Szoka