19 Even though never making any finding on market power, the Commission seems almost always to speak of fixed and mobile broadband separately. Of course to a degree the statute requires this. But if the Commission were the least bit serious about the market dysfunction that might provide support for its actions, it would consider competition between the two. The frequent articles in the conventional press about fixed broadband customers’ “cutting the cord” in favor of complete reliance on mobile suggests it would be an interesting inquiry. None of the above is intended to suggest that the Commission could not have made a sustainable finding that every firm in every relevant market has market power. My aim is simply to make two points: (1) that such a degree of market power cannot be assumed, as the Commission itself seems to acknowledge in its disclaimer of interest in market power, Order ¶ 11 n.12; and (2) that the Commission’s reliance on consumers’ “high switching costs,” id. ¶ 81 (discussed below in part II), which is an implicit assertion that the providers have market power, poses an empirical question that is susceptible of resolution and is in tension with the Commission’s assertion that it is not addressing “market power or its abuse, real or potential.” In a move evidently aimed at circumventing the whole market power issue (despite Title II’s origin as a program for monopoly regulation), the Commission rests on its “virtuous cycle” theory, to wit the fact that “innovations at the edges of the network enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge.” Order ¶ 7. The Commission clearly expects the policy adopted here to cause increases in broadband investment.

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