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CFA: Tenth Circuit Decision Boosts FCC Net Neutrality Approach

The Consumer Federation of America argues that the Tenth Circuit Court of Appeals decision declining petitions to review FCC Universal Service Fund intercarrier comp reforms buttresses the FCC's ability to regulate network neutrality using Sec. 706 authority, as FCC Chairman Tom Wheeler has proposed.

CWA points out that it had urged the FCC to assert §706 authority for the Open Internet order, Sec. §254 authority for Universal Service, and consider invoking Title II to justify both.

Sec. 254 empowers the FCC to preserve and advance universal access to telecommunications service, while Sec. 706 empowers the FCC to ensure that that "advanced telecommunications capability" is "being deployed to all Americans in a reasonable and timely fashion."

The Tenth Circuit ruling, it argues, gives a "huge boost" to that strategy in the following ways:

• "It finds that §254 is an independent source of authority to include broadband access service in the definition of universal service."
• "It identified §706 as a separate basis of authority that complements the §254 authority.
• "It recognizes the important role that flexibility has always played in implementation of the Communications Act and explains the logic of the new approach to flexibility embodied in the Telecommunications Act of 1996.
• "It systematically and thoroughly dispenses with a wide range of arguments that are little more than screeds against change."