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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