What’s Certain About the Regulatory Uncertainty Debate

[Commentary] Regulatory uncertainty results when Congress fails to legislate despite changed circumstances, or when its laws lack clarity. Congress last addressed telecommunications in 1996, before the Internet changed everything. In that kinder and less partisan time, the legislature achieved consensus, albeit one rife with compromises that translated -- over time -- into statutory ambiguity. The Federal Communications Commission has acted in light of the vacuum generated by congressional inaction.

On two separate occasions, the FCC has failed to convince a reviewing court that its statutory interpretation is reasonable and that the judiciary should defer to its expertise in making sense out of an outdated and ambiguous statutory mandate. Incumbents sustain regulatory uncertainty based on an assumption that the FCC will raise their cost of doing business and somehow limit their ability to maximize profit. Regulatory uncertainty is a red herring, because incumbents surely know that if the FCC oversteps, a reviewing court will overturn the rules.
[Frieden serves as Pioneers Chair and Professor of Telecommunications and Law at Penn State University]