The Federal Communications Commission’s Section 706 Problem

Section 706 of the Telecommunications Act of 1996 has played a recurring supplemental role in the Federal Communication Commission’s (FCC) efforts to reclassify Broadband Internet Access Services as a Title II common carrier telecommunications service under the auspices of Net Neutrality. Section 706 instructs the Commission to encourage the “reasonable and timely” deployment of broadband services to all Americans. In December 2023, the FCC issued a Notice of Proposed Rulemaking (NPRM) that seeks to apply legacy Title II common carrier regulation to broadband services, and, once again, the FCC plans to rely on Section 706 “as part of our authority for open Internet rules.” Section 706 is singular in its intent: that is, Congress is not concerned about promoting infrastructure in general; rather, Congress wants the Commission to remove barriers to entry to promote broadband deployment to unserved areas. For this reason, no other purpose justifies the use of Section 706. In its 2023 NPRM, the Commission makes no claim that Title II regulation removes barriers to infrastructure investment in unserved areas, and it would be nearly impossible to craft a plausible argument that it would. Section 706, then, cannot be used as a justification for Title II regulation. Equally as important, it is time to have an honest conversation about whether the goals of Section 706 are finally satisfied.