It’s ‘highly likely’ that U.S. Supreme Court would grant certiora...

FCC Chmn. Powell. Bork, one-time Supreme Court nominee, said his advice had been sought by AT&T. Case is “extremely important” because local telecom market is “perhaps the largest monopoly in the United States,” he wrote. Bork said certiorari should be sought, if for no other reason than “to protect the Commission’s institutional prerogatives.” Court “paid mere lip service” to precedent that deference should be given to expert agency under 1984 Chevron case, he said: “No deference was accorded to the Commission’s policymaking expertise or its predictive judgments.” In addition, he said: “Given that the incumbents have publicly argued that the decision means the Commission cannot on remand justify either the concept of a national list of unbundled network elements… or the continued unbundling of particular network elements currently on that list, the resulting uncertainty makes it much more difficult for new entrants to develop business plans that rely on the availability of a particular network element in a particular location.” In addition, “capital markets will be more reluctant to finance competitors that rely (either on whole or in part) on unbundled network elements to compete with incumbents,” he said.