13 (2d ed. 2013) (explaining link of Computer II’s unbundling rules to FCC’s concern over monopoly). Yet in the present Order the Commission contradicted its prior strategy and explicitly declined to offer any market power analysis: “[T]hese rules do not address, and are not designed to deal with, the acquisition or maintenance of market power or its abuse, real or potential.” Order ¶ 11 n.12. In fact, as we’ll see, many of the Commission’s policy arguments assert what sound like claims of market power, but without going through any of the fact-gathering or analysis needed to sustain such claims. The Order made no finding on market power; in order to do so it would have to answer a number of basic questions. Most notably, as shown in Figure 1 below, there are a fairly large number of competitors in most markets, with 74% of American households having access to at least two fixed providers giving speeds greater than 10 Mbps and 88% with at least two fixed providers giving access to service at 3 Mbps. In re Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable & Timely Fashion, & Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, 30 F.C.C. Rcd. 1375 ¶ 83 (2015) (“2015 Broadband Report”). Furthermore, 93% of Americans have access to three or more mobile broadband providers—access which at least at the margin must operate in competition with suppliers of fixed broadband. In re Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993: Annual Report and Analysis of Competitive Market Conditions with Respect to Mobile Wireless, Seventeenth Report, 29 F.C.C. Rcd. 15311 ¶ 51, Chart III.A.2 (2014).

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