12
545 U.S. at 996.
Thus the Court recognized the
Commission’s practice of regarding risks of “abuse [of]
monopoly power” as pivotal in Computer II. While the 1996
Act by no means conditions classification under Title II on a
finding of market power, Brand X shows that the Court
recognized the relevance of market power to the
Commission’s classification decisions. See Declaratory
Ruling ¶ 47 (resting the classification decision in part on the
desire to avoid “undermin[ing] the goal of the 1996 Act to
open all telecommunications markets to competition”).
Of course the Court’s citation of these instances of
Commission reliance on the economic and social values
associated with competition are just examples brought to our
attention by Brand X. In addressing activities on the
periphery of highly monopolized telephone service, the
Commission has for nearly four decades made the presence or
prospect of competition the touchstone for refusal to apply
Title II. The Computer II decision, for example, says of the
Computer I decision, “A major issue was whether
communications common carriers should be permitted to
market data processing services, and if so, what safeguards
should be imposed to insure that the carriers would not engage
in anti-competitive or discriminatory practices.” In re
Amendment of Section 64.702 of the Commission’s Rules and
Regulations (Second Computer Inquiry), 77 F.C.C. 2d 384,
389-90 ¶ 15 (1980) (“Computer II”). In the Computer II
decision, it is hard to go more than a page or so without
encountering discussion of competition.
The decision
concludes that, “In view of all of the foregoing evidence of an
effective competitive situation, we see no need to assert
regulatory authority over data processing services.” Id. at
433, ¶ 127. The competitiveness of the market was in large
part what the inquiry was about.
See Jonathan E.
Nuechterlein & Philip J. Weiser, Digital Crossroads 190-91
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents