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NAB: Court Decision Means FCC Is Free to Charge Big Tech

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The National Association of Broadcasters said a recent appeals court decision has established the precedent for commission authority to levy regulatory fees on Big Tech.

NAB has been pushing the FCC to start charging Big Tech and other unlicensed spectrum users such a fee, as it does broadcasters and other FCC licensees and said it is now clear the FCC has the authority to make it happen.

In initial comments to the FCC, NAB said that the base of payors should be expanded to include unlicensed spectrum users that also take up a "substantial" amount of FCC resources but don't have to pay for the privilege.

Also Read: NAB Says No Free Regulatory Ride for Microsoft, Google, Others

The FCC charges fees based on how many full-time employees are engaged in work related to a particular service--broadcasting, cable and satellite, for example.

In reply comments on the FCC's Notice of Proposed Rulemaking on Fiscal Year 2021 regulatory fees, NAB pointed to a June 4 decision by the U.S. Court of Appeals for the D.C. Circuit dismissing a challenge by Telesat Canada to the FCC's decision to charge it a fee even though it is not an FCC licensee. The court found, said NAB, that it was reasonable for the commission to charge Telesat Canada a regulatory fee because it benefitted from FCC activities.

"Congress made clear that the Commission’s regulatory fee schedule should take account of 'the benefits provided to the payor of the fee by the Commission’s activities,'" the court concluded in denying a challenge to the FCC's decision. "This suggests benefits—not licenses—should be the touchstone for whether it is reasonable for the FCC to collect regulatory fees."

NAB said that directly supports its argument to expand the base of fee payors to include Big Tech, which is one of the big drivers of policy work by the FCC's Office of Engineering and Technology, said NAB.

Given that court decision, NAB said the FCC needs to at least put out a Further Notice of Proposed Rulemaking.

NAB has been arguing that the FCC has boosted their fees to "unsustainable levels," in part thanks to its decision to require broadcasters to pay for some of the added funding Congress has said the FCC needs to use to create better broadband maps. Yet Big Tech companies that will benefit from those maps pay nothing.

FCC Commissioner Brendan Carr last month called for the FCC to start making Big Tech contribute some money to the universal broadband effort the government is subsidizing with billions of dollars in tax money. 

"NAB agrees with Commissioner Carr’s recent call for the Commission to finally stop allowing Big Tech companies, many of which generated over $1 trillion in revenue in 2020 alone, to free ride on the Commission’s activities," the association said.