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August 8, 2005
DSL Dances

The Federal Communications Commission's August 5 decision deregulating Digital Subscriber Line, thus giving DSL regulatory parity with cable Internet service, and ending the Computer Inquiry Rules (some of which date back nearly 30 years) is a welcome sign indeed, surprising in both its quick action and its breadth. That the FCC acted so swiftly despite a Supreme Court ruling (the "Brand X" case) giving the FCC carte blanche to continue treating DSL more harshly than rivals, attests that Chairman Kevin Martin, he of the 2003 swing vote for state broadband prerogatives, is a genuine convert to real deregulation. The reluctant acquiescence of the agency's two Democratic commissioners attests to growing Beltway realization that Asia is bypassing US in the race for global telecom supremacy.

Two things should be noted, however: (1) had the Supremes affirmed the Ninth Circuit in Brand X the FCC could still have taken the same action; (2) the vast discretion the Brand X case leaves the FCC with is like a loaded gun, awaiting the next Reed Hundt or William Kennard chairmanship to fire virtually at will.

The Ninth Circuit had merely told the FCC to treat DSL and cable access alike, neither specifying deregulatory nor regulatory parity; it is inconceivable that had the Supremes affirmed the Ninth the FCC would have reregulated cable rather than deregulate DSL.

The Bush FCC now seems solid for deregulation under the 2005 incarnation of Kevin Martin, with the White House now likely to appoint a deregulator as the fifth commissioner (third Republican) and likely to replace departing Commissioner Kathleen Abernathy with another deregulator. Things look good through 2008--far better than they looked to this observer even a month ago.

However, let Hillary win in 2008 and appoint female Hundts and Kennards, and the FCC's vast power will again be abused, with severely curtailed scope for judicial review thanks to Brand X's sweeping deference to the FCC. Giving such power to an agency that has been reversed as frequently as has the FCC, and has also been judicially chastised several times in recent years for evading clear court rulings, is not sound precedent. The 2008 election thus becomes more significant for telecom policy than it otherwise would be.

Dotted Divider Line

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