WASHINGTON D.C. - As the telecommunications sector anxiously awaits the Bush Administration's decision whether to appeal the DC Circuit's March rejection of the FCC's network sharing rules to the U.S. Supreme Court, conservative think tank scholars are taking aim at regulators who they believe are blocking progress toward market-oriented telecommunications reforms. In a joint article published this week in the Washington Times, the scholars say the court rebuke provides a "huge opportunity" to enable a "less-regulated, commercially oriented regime" characterized by mutually acceptable sharing agreements.

In " Negotiate Not Litigate," Randolph J. May of The Progress & Freedom Foundation, Adam Thierer of the Cato Institute and James L. Gatusso of the Heritage Foundation urge state utility commissions to avoid "putting their own regulatory stamp on the freely negotiated agreements," such as those reached by Qwest with Covad and SBC with Sage Telecom. The conservative policy experts fear "state public utility commissioners are determined to throw roadblocks into the negotiating process, and there have been indications the FCC may be meddling as well by, say, requesting negotiation information and pressuring parties to use mediators."

Subjecting such agreements to state 'public interest' review would cause the FCC-desired goal to fail "since the incentive to negotiate will be severely diminished. "

In the recent appeals ruling and two previous judicial rebukes, the courts have held that the FCC's sharing rules were too broad, mandating access to networks by new entrants that were not impaired from providing their own facilities. According to May, Thierer and Gatusso: "The D.C. Circuit decision has opened a window of opportunity to escape the regulatory and litigation morass that has prevailed since the 1996 Telecom Act passed. But if regulators act as if nothing really changed, then nothing will." Those in the telecom sector "can decide themselves how to meet customer needs by voluntary agreements."

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.