In my recent FSF Perspectives piece, "The Faulty Berkman Report: The Fallacy of Overlooking Secondary Consequences," I challenge the Berkman Report’s myopic focus on the touted benefits of a public policy to one segment of beneficiaries to the exclusion of the broader costs associated with that policy. The Report's retelling of the Federal Communications Commission's (FCC) prior attempts to impose "open access" or "forced access" policy through unbundling regulations on incumbent wireline providers is a highly selective and thereby misleading account. It fails to mention the adverse infrastructure investment incentives of mandated access policies that effectively require incumbents to subsidize facilities to be used by their competitors. And the Report nowhere even mentions the telecom disinvestment trends, discussed in my Perspectives, that plagued the industry until the courts and the FCC begun to roll back unbundling regulations.
One aspect of the Report that I left unaddressed was its insistence that the FCC's unbundling regulatory regime failure was attributable in large part to the incumbents' lobby and litigation efforts, and ultimately to the courts' disagreement with FCC policy judgment. The Report asserted that the courts failed by not according proper discretion to regulatory experts. Urging a force-fit of extensive broadband regulatory regimes used by several foreign social democracies on the American broadband marketplace, the Report suggested that the U.S. give more "engaged" regulators greater "professionalism, independence, and power" in order to impose a next generation set of "open access" mandates on broadband network providers.
This argument about the woes of the FCC's unbundling regulations oversimplifies to the point of being totally unhelpful. To say that the courts simply disagreed with the FCC's policy is misleading. Moreover, the Report's trumpeting of regulators' independence and power in foreign nations as an antidote simply doesn’t translate in the U.S. government institutional setting.
The reality is that the FCC and other federal agencies receive a considerable degree of deference from U.S. courts under Administrative Procedures Act and the "Chevron doctrine." Under the former, courts typically decline to second-guess agency judgments or "expertise" on public policy questions. And under the latter, courts routinely acquiesce to agencies' interpretations of ambiguous statutory language unless the interpretation is clearly impermissible.
However, the independence of U.S. courts means that there are constitutional and statutory limits to agency discretion. (Such judicial independence is often lacking in foreign systems of parliamentary supremacy.) Contrary to the Report's claims about judicial disagreement with agency policy judgment, it was the FCC's own contravention of legal limits through its improper sub-delegation of federal agency authority to state regulators and the FCC's implausible readings of the terms of the Telecommunications Act of 1996 that led to judicial invalidation of many of the FCC's unbundling rules. To be sure, the U.S. Court of Appeals for the District of Columbia forthrightly recognized that "[e]ach unbundling of an element imposes costs of its own, spreading disincentive to invest in innovation and creating complex issues of managing shared facilities." But the Court’s observation about the economic drawbacks to the unbundling rules was made in a larger context. The Court was attempting to ascertain whether an expansive unbundling policy with such obvious infrastructure investment disincentives was what Congress conceivably had in mind in passing the Act.
Moreover, Courts are not likely to unilaterally drop existing legal limits on arbitrary and capricious decision making by federal agencies on the grounds that even greater bureaucratic power and independence should alleviate agency capture concerns. Perhaps the Report seeks to trumpet a best-of-all-possible-worlds policy in its implicit calls for judicial retreat from review of any future agency "open access" regulations. But in this world, federal agencies must make do with the constitutional and statutory slack they have been given. In other words, they must act in accord with the rule of law.