The FCC's Legal Gymnastics

[Commentary] To ensure the Title II proposal passes the “giggle test” with a reviewing court, the Federal Communications Commission will engage in more legal gymnastics than a Cirque du Soleil show on the Las Vegas Strip. The first hoop the FCC needs to jump through is to explain why its original finding that broadband Internet access is a Title I information service (upheld by the Supreme Court in the 2005 NCTA vs. Brand X case) is now wrong. Assuming the FCC can get past the Brand X problem, it must then provide an explanation for forbearing from mandatory tariffing of retail broadband service and for the terminating access service needed by edge providers to reach customers.

If the FCC is nevertheless successful in convincing the court on forbearance in the face of monopoly, how will it reconcile this reasoning with its decisions both to suspend special-access deregulation because it found that two firms (a duopoly) in the relevant market were insufficient to constrain prices and to deny Qwest’s petition to forbear from residual unbundling obligations in the Phoenix MSA because it also found that duopoly was insufficient to constrain pricing (a decision that was upheld by the 10th Circuit)? What’s changed, other than the politics? Given that the FCC’s anticipated 332-page order is likely to be driven more by naked politics than thoughtful analysis, the possibilities for legal missteps are endless. Let the litigation begin.

[Lawrence Spiwak is President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]