FCC broadband report claims regulation authority; will court follow?

The FCC released another broadband report, and while this one is replete with arcane FCC jargon and not easily followed, it’s a pretty revolutionary change. The jist of the report is that the FCC concludes that broadband services are not being provided to “all Americans” as Section 706 of the Telecom Act mandates. That finding has never been made before.

The FCC then says it intends to follow the path Section 706 dictates: “take immediate action to accelerate deployment of [advanced telecommunications] capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.” The action the FCC proposes to take is to implement the National Broadband Plan.

In many respects, the move here is almost rhetorical; the National Broadband Plan has already been declared the FCC’s policy. What’s different here is that the FCC has invoked its 706 authority, which includes “utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”

In other words, what the FCC has done here is to explicitly create the regulatory framework for intervening in telecom policy as necessary (“consistent with the public interest, convenience, and necessity”) to assure universal broadband.

Prior to this report, meaning absent a finding that access to advanced telecommunications services was not available to all Americans, the FCC had no legal way of doing much beyond what’s already been done. Now, as the quote from Section 706 shows, it has very substantial latitude. Obviously the FCC intends to exercise is authority, but just as obviously, there’s going to be a lot of opposition.

Virtually all network operators and virtually all Republicans oppose this viewpoint. Reading (or trying to read) past the rhetoric, the dispute is whether the language of the Telecom Act — which says that the Commission must determine whether “advanced services are being deployed” means that those services are in the process of deployment or that they are in fact being used.

We think a previous reference makes it clear that the goal is not “progress” but a realization, and obviously it would be difficult to say that there was a problem at any point in broadband deployment if only progress were required. Mustn’t success come at some point? In any event, this is going to end up in federal court, but we think the FCC just might win it.