In the
Verizon v. FCC, the D.C. Circuit Court of Appeals briefly addressed the issue
of the Commission's assessment of broadband competition. With some incredulity, the court nevertheless
expressed its unwillingness to second guess the FCC on its decision to back off
from previously finding adequate market access.
With a new and reversed finding of inadequate access—especially in rural
areas—the FCC has a stronger argument for using Sec. 706 of the Communications
Act to achieve promotional goals through non common carrier rules and
regulations.
The D.C.
Circuit Court of Appeals frequently is not so deferential. For example, even when the FCC had explicit
authority under the Telecommunications Act of 1996 to require local loop
unbundling, the D.C. Circuit (in the U.S. Telecom Assn. cases) chided the
Commission for lack of granularity and market specific requirements. Bear in mind the court second-guessed--if not
micromanaged--a process involving telecommunications service providers and
Title II requirements. The court
appeared quite uncomfortable with the FCC forcing competitors to cooperate on
matters where interconnection terms and conditions would not match what arm's
length, market driven negotiations would generate.
The
possibility exists that a change in administration, or judicial impatience with
regulatory meddling will prompt an appellate court to second guess a finding of
insufficient competition. If that were
to occur I suspect the FCC would claim that its Sec. 706 authority does not
ride solely on the basis of its annual assessment of the broadband
marketplace. However the Commission
would have yet another hard case to make that accessibility in the context of
Sec. 706 is measured by factors other than marketplace competitiveness.