Section 706 of the 1996 Telecommunications Act

Since 1998, the FCC has been required to create a report to Congress on the status of broadband in America and it the deployment wasn’t going in a timely fashion, the FCC could take steps to fix this.

And since 1998, New Networks Institute (NNI), a member of the IRREGULATORS, has filed almost annually, including in 2017. Section 706 is important because it is used as part of the 2017 Repeal of Net Neutrality order. The FCC believes Section 706 gives the FCC the power to preempt the states’ broadband deployment plans.

The problem: There is a major structural flaw to the FCC’s arguments:

The FCC has ignored, left out, and never mentioned that

  • There are state utilities and “intrastate” (in-state) services at all
  • There are state-based broadband deployment commitments still in force today
  • There were major state-based capital expenditures for this broadband deployment and
  • The Telecomm companies were given massive financial incentives — investment to build out the broadban networks in the states.

The FCC has no evidence to preempt state laws and cannot prove that Net Neutrality (and Title II) harmed investment.

Read the following:

This is the actual language of Section 706 of 1996 Telecommunications Act:

47 U.S. Code § 1302 – Advanced telecommunications incentives
(a) In general. The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

(b)Inquiry. The Commission shall, within 30 months after February 8, 1996, and annually thereafter, initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) and shall complete the inquiry within 180 days after its initiation. In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission’s determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.

(c) Demographic information for unserved areas. As part of the inquiry required by subsection (b), the Commission shall compile a list of geographical areas that are not served by any provider of advanced telecommunications capability (as defined by subsection (d)(1)) [1] and to the extent that data from the Census Bureau is available, determine, for each such unserved area —

   (1) the population;

   (2) the population density; and

   (3) the average per capita income.

(d)Definitions. For purposes of this subsection:

   (1)Advanced telecommunications capability. The term “advanced telecommunications capability” is defined, without regard to any transmission media or technology, 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.

   (2)Elementary and secondary schools. The term “elementary and secondary schools” means elementary and secondary schools, as defined in section 7801 of title 20.