In particular, this language gives the FCC a green flag to totally reexamine its broadband policy under a new Administration and in light of new market realities.
Section 706 directs the Commission to “encourage the deployment” of broadband “on a reasonable and timely basis.” Naturally, there are different ideas about the best means to achieve that statutory objective – for example, some advocate a more market-based approach (which would spur more facilities-based competition) and others favor a more common-carrier, equal-access-based approach.
Interestingly, and perhaps not surprisingly given the compromises necessary to reach agreement on such a massive piece of legislation, Congress did not choose between those competing philosophies for broadband regulation. To be sure, the preamble to the Act does say that it is to “promote competition and reduce regulation.” Pub. L. No. 104-104, 110 Stat. 56, 56 (1996) (emphasis added). But § 706 speaks in very broad terms and instructs the FCC to facilitate broadband deployment “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.” And § 706 mandates that, if broadband capability is not being sufficiently deployed, the Commission “shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”
The general and generous phrasing of § 706 means that the FCC possesses significant, albeit not unfettered, authority and discretion to settle on the best regulatory or deregulatory approach to broadband – a statutory reality that assumes great importance when parties implore courts to overrule FCC decisions on this topic.