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June 25, 2002
CONTACT: David Fish
(202) 289-8928

FCC Chairman Powell's Defining Moment
Will He Litigate or Deregulate Broadband? May Challenges Bork

WASHINGTON, D.C. - To litigate or deregulate? That is the question facing Federal Communications Commission Chairman Michael Powell as he approaches what one noted telecommunications expert, Randolph J. May of The Progress & Freedom Foundation, is calling Powell’s “defining moment”.

On one side is Judge Robert Bork, who at the behest of AT&T wrote a public letter to Powell this month asking him to appeal to the Supreme Court a recent DC Circuit decision [United States Telecom Association v. FCC] overturning the FCC’s orders requiring local phone companies to share virtually every aspect of their networks with competitors. On the other side are numerous statements by Powell and Commissioners Kathleen Abernathy and Kevin Martin saying over-regulation is impeding the development of broadband and facilities-based competition. The courts have declared the agency’s ‘unbundling’ and ‘line-sharing’ regulations unlawful because they provide “blanket access” to company networks and contain no “limiting standard” to bring about the pro-competitive and deregulatory goals of the 1996 Telecommunications Act.

According to May, who is senior fellow and director of Communications Policy Studies at the Foundation, Powell should ignore Bork’s advice and use as his guide his own past deregulatory pronouncements and those of Abernathy and Martin. In a paper that counters Bork’s arguments – “To Litigate or Deregulate: Chairman Powell’s Defining Moment” – May argues “The decision concerning whether to appeal USTA should be seen as a defining moment.”

“A decision to appeal…will signal an intent to maintain pretty much ‘as is’ the current overly intrusive regulatory regime – the regime which Chairman Powell himself has acknowledged has the effect of discouraging more timely and more ubiquitous deployment of broadband services,” May writes. Such a decision would signal Powell intends to “slow-roll reduced regulation of the telecommunications industry.”

A decision not to appeal would prove “the Commission is ready – finally – to send a much-needed signal to the marketplace that it is serious about looking to reduce unbundling obligations in line with the court’s interpretation of what is required by the ‘impairment’ standard.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation