3
deferred to part II.
resulting confusion.
I ask the reader’s indulgence for any
* * *
I should preface the discussion by acknowledging that the
Commission is under a handicap in regulating internet access
under the Communications Act of 1934 as amended by the
Telecommunications Act of 1996. The first was designed for
regulating the AT&T monopoly, the second for guiding the
telecommunications industry from that monopoly into a
competitive future. The 1996 Act begins by describing itself
as:
An Act [t]o promote competition and reduce regulation in
order to secure lower prices and higher quality services
for American telecommunications consumers and
encourage
the
rapid
deployment
of
new
telecommunications technologies.
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56. Two central paradoxes of the Commission’s position
are (1) its use of an Act intended to “reduce regulation” to
instead increase regulation, and (2) its coupling adoption of a
dramatically new policy whose rationality seems heavily
dependent on the existing state of competition in the
broadband industry, under an Act intended to “promote
competition,” with a resolute refusal even to address the state
of competition. In the Commission’s words, “Thus, these
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.
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