Arguing that “a five-member panel at the FCC should not be dictating how Internet services will be provided to millions of Americans,” Senator Ted Cruz (R-Texas) on Wednesday announced his plan to introduce a new bill that would revoke the authority of the Federal Communications Commission to tinker with broadband speeds under an obscure provision in the Telecommunications Act of 1996.
“I will be introducing legislation that would remove the claimed authority for the FCC to take such actions, specifically the Commission’s nebulous Sec. 706 authority,” said Cruz.
Section 706 of the Telecommunications Act affords the FCC, in conjunction with State utility service commissions, to take swift action against broadband providers if the FCC determines in its annual report to Congress that they are not, “in a reasonable and timely fashion,” providing convenient, consistent and affordable internet access to customers.
It’s a vague provision that, given the FCC’s proclivity to interpret its administrative powers broadly, gives the agency enormous enforcement power that borders on lawmaking. It was written nearly 20 years ago, when Congress was far more concerned with other networked infrastructure based on cable television and telephone services.
Writing for the Federalist Society in 2012, Howard Waltzman described the contemporary problems posed by the FCC’s reliance on Section 706 to force its square-peg regulatory agenda into a round hole:
Section 706 of the ’96 Act was a somewhat obscure, but now highly debated, provision of the law. Section 706(a) provides that the Commission and State Public Utility Commissions must “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans . . . by 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.” Section 706(b) requires the Commission to conduct regular inquiries into “the availability of advanced telecommunications capability to all Americans.” If the Commission determines that such capability is not being deployed to all Americans “in a reasonable and timely fashion,” the Commission is required to “take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”
… But, if nothing else, the complexity and fluidity of the Internet market demonstrates that Section 706 is an unsustainable framework for this rapidly changing market. Congress needs to provide clearer guidance to the Commission beyond simply prodding the agency to incentivize infrastructure investment. Rather than simply telling the Commission that there needs to be more broadband network deployment, Congress should establish a clear framework regarding the Commission’s authority (or lack thereof) over broadband services and infrastructure; the relationship between broadband network providers and applications providers; and what, if any, rules apply to the transmission of applications over the Internet. Twenty-first century technology and services warrant a twenty -first century framework.
That was in 2012. Cruz’ new proposal, on the heels of a fresh eruption of the FCC’s role in the net neutrality debate, would mark the first step in doing exactly what Waltzman recommends: putting Congress, and not a Federal agency chaired by a Presidential appointee, in charge of establishing a framework for the way a Nationwide Internet infrastructure will serve Americans.
Cruz isn’t a maverick on the net neutrality issue, either: Congressional action of one kind or another has bipartisan support. Senator Al Franken (D-Minn.) told FCC chairman Tom Wheeler last week that the FCC should not be in the business of turning Internet access into a shop-your-speed bandwith store that favors wealthy content pushers.
“I believe [Obama] pledged to appoint FCC commission that would honor net neutrality and keep net neutrality as law,” Franken told Time magazine in an interview recapping his letter to the FCC. “[But] The latest proposed rules by Wheeler — what he’s really talking about is creating a fast lane where people can pay to have their content treated unequally. That’s not net neutrality. That’s pay for play. That’s antithetical to net neutrality.”
Cruz’ statement on his new bill takes direct aim at that concern.
“More than $1 trillion has already been invested in broadband infrastructure, which has led to an explosion of new content, applications, and Internet accessibility,” said Cruz.
“Congress, not an unelected commission, should take the lead on modernizing our telecommunications laws. The FCC should not endanger future investments by stifling growth in the online sector, which remains a much-needed bright spot in our struggling economy.”