Republican Commissioners Expected to Dissent on Special Access Order, Broadband Report
FCC Commissioners Robert McDowell and Ajit Pai are expected to dissent on two items set for a vote in the next week at the agency, commission officials said. The first of the Republicans’ expected dissents will be on an interim rule change for the commission’s special access rules. The second is on the FCC’s Section 706 broadband competition report.
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The special access order suspends rules in effect since the chairmanship of William Kennard, under President Bill Clinton, and would block further grants of pricing flexibility petitions until the agency completes an investigation of special access pricing, FCC officials said. One FCC official noted that just last year, in a response petition seeking a writ of mandamus by CompTel and other competitors, the commission said it does not yet have a sufficient “evidentiary record ... to evaluate current conditions in the special access market” (http://xrl.us/bnkkmi).
There is widespread agreement that based on what the FCC has learned since the rules took effect they're not working as intended and some industry players believe this has led to anticompetitive practices, said a senior FCC official late Monday.
On June 5, Chairman Julius Genachowski circulated an order rejecting two pricing flexibility petitions by AT&T and one by Windstream, as the special access investigation moved forward. McDowell and Pai objected then, questioning whether the move was justified based on the data that had been collected so far (CD June 7 p1). Genachowski ultimately decided to let the petitions take effect (CD June 26 p4). The order moves forward with suspension of the special access rules, but does not contain a much-awaited mandatory data request, commission officials said. There has been little back and forth among the commissioner offices on special access since June, agency officials said.
The other controversial order approves the 2012 version of the Section 706 broadband competition report. Two years ago (CD July 21/10 p1), McDowell and then-Commissioner Meredith Baker dissented from the 2010 version because it did not say broadband is being deployed to all Americans “in a reasonable and timely fashion.” McDowell questioned then what had changed since previous reports, which reached a favorable conclusion, saying broadband had only continued to expand.
The FCC has similarly declined to find that wireless markets are competitive in all of its annual wireless competition reports released since Genachowski became chairman in 2009. The negative conclusions in the 706 report were cited by an FCC majority in orders approving net neutrality rules in December 2010 and its April 2011 order imposing a wireless data roaming mandate. Both orders are on appeal at the U.S. Court of Appeals for the D.C. Circuit.
The Phoenix Center released a paper Monday on the pending 706 report, noting the importance of the report to key regulatory orders. “By ignoring its own evidence and by carefully defining broadband service, the FCC had successfully rigged the game to permit expansive broadband regulation under Section 706,” the center said (http://xrl.us/bnkkq9).
"By establishing ubiquitous availability as the standard for ‘reasonable and timely,’ the Commission set a standard that, by its own calculations, will be impossible to satisfy,” said center President Larry Spiwak, an author of the study. “In so doing, the legal and factual predicates for much of the agency’s aggressive regulatory agenda stand on shaky ground.”