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FCC Could Have Broadband’s Number: 706

WASHINGTON — It looks like Federal Communications Commission chairman Tom Wheeler wants to give Section 706 of the Communications Act quite a workout.

In addition to proposing to reinstate Open Internet rules under that general authority, the latest Section 706 report, per a Notice of Inquiry the FCC released last week, will potentially get to usage-based pricing, broadband speed and other hot-button issues via their impact on advanced telecommunications service, depending on whether, or more likely how, the FCC redefines that.

Advocacy groups were already hailing the FCC’s signal it might use its “broad” Section 706 powers to get to at some of those issues.

Pointing to its Universal Service Fund reform proposal, the Notice of Inquiry suggested the FCC “may want to” similarly propose adding speed, latency and usage allowances to the definition of advanced telecommunications’ reasonable and timely deployment.

It is only a notice of inquiry, and Republicans were said to have gotten a number of their edits on the item, but it at least leaves the door open to more regulation in the name of Sec. 706.

An FCC source called that a fair assessment, but pointed to the Republican edits of the item as evidence that all the questions it raises may not translate to action.

Section 706 is the provision in the Telecommunications Act of 1996 that directs the FCC to determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion and, if not, to take “immediate action” to accelerate said deployment by removing barriers to investment and promoting competition.

The statute defines advanced telecom as “high-speed, switched broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics and video telecommunications using any technology.

In the NOI, the FCC suggested its definition of “highspeed” needs to be increased from the current 4 Megabits per second upstream/1 Mbps downstream to at least 10/1.5 and that it may have to go as high as 25/6 Mbps to accommodate or anticipate all those cloud-storing, video watching, online educating Americans (see chart). But it is looking beyond speed to myriad other potential factors to shape the definition of the advanced telecom it can regulate.

Commissioner Ajit Pai was certainly concerned about that possibility, choosing not to vote yes but instead only to concur, a step below support. “I concur to the extent this notice perpetuates the recent trend of reading section 706 of the Telecommunications Act of 1996 as a roving mandate to do something — anything — about broadband,” Pai said last week.

The National Cable & Telecommunications Association had no immediate comment about the NOI.