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You are hereTitle II reclassification: FCC can't redefine competition as monopoly without being arbitrary/capricious
Submitted by Scott Cleland on Thu, 2010-03-04 16:38
The discussion at the Federalist Society about former U.S. Solicitor General Greg Garre's excellent legal analysis (that the FCC does not have the legal authority to promulgate Internet traffic rules), surfaced what I believe to be yet another insurmountable barrier for the FCC to overcome -- beyond the litany of legal barriers outlined by Mr. Garre.
Let me explain. Public Knowledge's Gigi Sohn laid out the counter argument to Mr. Garre's analysis that the FCC could reclassify broadband as Title II by simply revisiting the basis for the FCC's 2002 decision and overturning it as wrong on three counts:
Ms. Sohn added this about what the FCC could do: "They just have to give a reasoned explanation. They don't actually have to show that the new decision was better than the old decision." -- per Washington Internet Daily.
While I think it will be exceedingly difficult for the FCC to argue any or all three of Gigi's points, let me zero in on the competition assessment, which appears to me to be the most vulnerable of all. If the FCC were to try and argue fifteen years after the passage of the Telecom Act that facilities based competition has in fact not arrived or that what exists is not sufficient to warrant continuation of the deregulation long since granted, the FCC logically would have to come up with some definition of competition or some new competition standard as a basis to justify their new assessment, (which by the way would be diametrically opposite to the current FCC's implicit and operative competitive standard/assessment.) This presents the FCC with a serious dilemma.
In short, most every indicator of facilities-based competition: choice, value, price, innovation, investment, over most any period the FCC could choose, will show broadband competition increasing/improving over that period.
At core the FCC cannot make up a new definition of competition that effectively rules a non-monopoly market to be a monopoly market without being arbitrary and capricious.
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