Some advocates fear the agency is just creating more problems for itself and net neutrality by trying to rework the rules under the authority of Section 706, with O’Boyle saying, “706 is gonna give us several more years of litigation and uncertainty.”
Williams said Wheeler’s strategy is on a “shaky legal foundation” and that it will be a challenge for the agency to advance net neutrality rules using that section of law. “The courts have said the FCC cannot do anything common carrier-like using that authority,” he said.
But some other groups who support reclassification are more open to the idea of moving forward under Section 706. That provision provides some opportunities and is “worth exploring” as long as it doesn’t go too far, said Clarissa Ramon, government affairs and outreach associate at Public Knowledge.
“That’s the big, great, unanswered question — how far does this authority go?” asked Christopher S. Yoo, a professor at the University of Pennsylvania Law School.
FCC Commissioner Mike O’Rielly thinks the agency could go too far in using Section 706. “As I have said before, my view is that section 706 does not provide any affirmative regulatory authority,” O’Rielly said in a statement last week. “We should all fear that this provision ultimately may be used not just to regulate broadband providers, but eventually edge providers.”
Partisan Divide on Capitol Hill
In Congress, Democrats generally praised the FCC’s announcement last week, while Republicans slammed it as unwarranted and an effort at government control of the Internet.
Mississippi Sen. Roger Wicker, the ranking Republican on the Senate Commerce, Science and Transportation Subcommittee on Communications, Technology and the Internet, criticized even leaving Title II on the table as an option.
“Reserving the option of applying outdated Title II regulations to modern technologies through ‘reclassification’ will only add uncertainty to the marketplace and stifle innovation,” Wicker said in statement.
The ranking Republican on the full Commerce Committee also criticized the move. “The Chairman must have little faith that the FCC’s latest attempt to regulate the Internet will hold up under legal review, otherwise why bother keeping the Title II reclassification docket open?” Sen. John Thune of South Dakota said in a statement.
But Minnesota Democratic Sen. Al Franken questions whether the FCC can achieve its net neutrality goals without resorting to reclassification.
“It’s critically important that the approach the FCC takes achieves that goal [of net neutrality], and there are some real questions about whether the path they’ve chosen will actually accomplish that,” Franken said in a statement last week. “With that in mind, over the next several months I will be working to make sure that the FCC’s action to protect net neutrality is enduring and effective.”
House Energy and Commerce Committee member Marsha Blackburn, R-Tenn., has introduced a bill to overturn the 2010 rules and prohibit any future ones, like the effort that Wheeler and FCC staff are working on now.
Earlier this month, before Wheeler’s announcement, the Energy and Commerce panel’s ranking Democrat, Henry A. Waxman of California, introduced a bill that would temporarily reinstate the FCC’s original 2010 rules until the agency responds with final action.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.