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propositions as the basis for its conclusion. For example, the
Brand X majority noted that in reaching its initial
classification decision the Commission had concluded that
“broadband services should exist in a minimal regulatory
environment that promotes investment and innovation in a
competitive market.” Id. ¶ 5, quoted by Brand X, 545 U.S. at
1001 (internal quotation marks omitted). But the Commission
has now discovered, for reasons still obscure, that a “minimal
regulatory environment,” far from promoting investment and
innovation, retards them, so that the Commission must replace
that environment with a regime that is far from “minimal.”
And when parties claimed that the Declaratory Ruling
was inconsistent with the Commission’s decision to subject
facilities-based enhanced services providers to an obligation
to offer their wires on a common-carrier basis to competing
enhanced-services providers, In re Amendment of Sections
64.702 of the Commission’s Rules and Regulations (Third
Computer Inquiry), 104 F.C.C. 2d 958, 964 ¶ 4 (1986), the
Brand X Court responded by looking to the policy reasons that
the Commission itself had invoked, reasons grounded in
concern over monopoly. The Court said:
In the Computer II rules, the Commission subjected
facilities-based providers to common-carrier duties not
because of the nature of the “offering” made by those
carriers, but rather because of the concern that local
telephone companies would abuse the monopoly power
they possessed by virtue of the “bottleneck” local
telephone facilities they owned. . . . The differential
treatment of facilities-based carriers was therefore a
function not of the definitions of “enhanced service” and
“basic service,” but instead of a choice by the
Commission to regulate more stringently, in its
discretion, certain entities that provided enhanced service.
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