Commissioner Warns Of FCC Power Grab

Michael O'Rielly

The FCC's Michael O’Rielly, one of two Republican commissioners since being sworn into office last November, Tuesday warned against the commission using what he called "newly invented authority to regulate the Internet," according to arstechnica.com.

FCC Chairman Tom Wheeler has declined to reclassify broadband as a telecommunications service, which would open Internet Service providers up to the same type of common carriage rules that apply to the country's phone system. But, according to O'Rielly,  he's continuing to use Section 706 of the Telecommunications Act of 1996, which requires the FCC to accelerate broadband deployment, as justification for a new set of net neutrality rules—despite a federal appeals court striking down anti-blocking and anti-discrimination rules previously implemented using that authority.

Net neutrality advocates have argued that Section 706 doesn't provide strong enough authority to prevent ISPs from abusing their market power. O'Rielly agrees in a sense, though unlike net neutrality supporters, he isn't pushing the FCC to use its common carriage powers, either. In an op-ed for The Hill, O'Rielly wrote:

For years, edge providers—Pandora, Google, LinkedIn, Facebook, WhatsApp, to name just a few—have flourished from the government’s hands-off approach to the Internet. Both Republicans and Democrats championed a structure that allowed the “application layer” of Internet architecture to be free from government intervention, apart from occasional Federal Trade Commission activity. 

That is now subject to change. 

A very real threat is that edge providers could fall within the reach of the FCC’s newly invented authority to regulate the Internet under Section 706 of the Telecommunications Act of 1996. 

Congress never intended to give the FCC that authority. I know because I was in the room, as a congressional staffer, when that deal was made.

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