The FCC's Michael O’Rielly, one of two Republican commissioners since being sworn into office last November, today warned against the commission using what he called "newly invented authority to regulate the Internet."

FCC Chairman Tom Wheeler has declined to reclassify broadband as a telecommunications service, which would open Internet Service providers up to the same type of common carriage rules that apply to the country's phone system. But he's continuing to use Section 706 of the Telecommunications Act of 1996, which requires the FCC to accelerate broadband deployment, as justification for a new set of net neutrality rules—despite a federal appeals court striking down anti-blocking and anti-discrimination rules previously implemented using that authority.

Net neutrality advocates have argued that Section 706 doesn't provide strong enough authority to prevent ISPs from abusing their market power. O'Rielly agrees in a sense, though unlike net neutrality supporters, he isn't pushing the FCC to use its common carriage powers, either. In an op-ed for The Hill today, O'Rielly wrote:

For years, edge providers—Pandora, Google, LinkedIn, Facebook, WhatsApp, to name just a few—have flourished from the government’s hands-off approach to the Internet. Both Republicans and Democrats championed a structure that allowed the “application layer” of Internet architecture to be free from government intervention, apart from occasional Federal Trade Commission activity. That is now subject to change. A very real threat is that edge providers could fall within the reach of the FCC’s newly invented authority to regulate the Internet under Section 706 of the Telecommunications Act of 1996. Congress never intended to give the FCC that authority. I know because I was in the room, as a congressional staffer, when that deal was made. For years, the FCC held the same conclusion. But in 2010, when the FCC’s attempt to use other statutory provisions to regulate broadband providers failed, it re-interpreted Section 706 as a new legal basis to impose net neutrality restrictions. Although the D.C. Circuit vacated most of those restrictions in January, the decision explicitly sanctioned Section 706 as an independent grant of regulatory authority. As a result, we now live in a world where the FCC can arguably adopt almost any rule that conceivably promotes broadband deployment. As Judge Laurence Silberman summarized in his dissent: “Presto, we have a new statute granting the FCC virtually unlimited power to regulate the Internet.”

Before being nominated by President Obama to fill a Republican opening on the FCC, O'Rielly worked in Congress for two decades, most recently as policy advisor for Senate Minority Whip John Cornyn (R-TX).

Watch out, Netflix

At its May 15 meeting, the five-member commission will consider Wheeler's proposal to use Section 706 authority to impose a new anti-blocking rule while allowing ISPs to charge edge providers "commercially reasonable" rates for a faster path to consumers.

"His focus may be on broadband providers, but edge providers shouldn’t be lulled into complacency," O'Rielly wrote. "The notion of preserving an 'open Internet' is so vague that any rules meant to accomplish that goal could unintentionally impact edge providers’ business models."

O'Rielly warned that the FCC could use Section 706 to intervene in programming disputes like the one between CBS and Time Warner Cable last year, which led to customers losing access to channels and online programming.

"The controversy was eventually resolved, but not before it prompted some calls for the commission to investigate supposed net neutrality 'violations,'" O'Rielly wrote. "This pattern will likely recur as online streaming becomes even more popular. What happens under a net neutrality regime if Netflix, YouTube, or Hulu flex their muscles in the marketplace? Should the FCC similarly scrutinize their business decisions? The only intellectually honest conclusion for net neutrality supporters is to extend the burden to everyone: broadband providers and edge providers."

"Beyond the issue of net neutrality, the FCC is already using Section 706 as legal justification for other actions," he continued. "In January, for example, the FCC moved to establish IP trials to examine issues related to the migration to all-IP networks, and that item cited Section 706 as a source of authority. It begs the question, what else could the FCC do under Section 706 in the name of advancing broadband deployment? The possibilities are endless—and could easily reach edge providers."

Netflix doesn't seem to share O'Rielly's concern, as the video provider has called for more extensive net neutrality regulations.

O'Rielly also speculated that the FCC could "claim authority to regulate cybersecurity." All this regulation, he wrote, "will chill the needed investment and flexibility that is fueling innovation and job growth."

On the other side of the aisle, consumer advocacy groups have argued that Section 706 won't give the FCC enough power to prevent ISPs from discriminating against Web services that can't afford to pay for preferential treatment. Yesterday, the Mozilla Foundation joined many other groups in asking the FCC to regulate broadband with common carrier rules.