Supreme Court Review of UTSA II Would Delay the President's BroadBand Policy and Prolong the Existing Disarray of Telecommunications
June 4, 2004David M. McIntosh, Julian Gehman
Ten years is too long to hijack wireline telecommunications with uncertainty, litigation and over-regulation. In the Telecommunications Act of 1996, Congress authorized the FCC to require that network elements be made available to competitors, so long as the Commission considers, at a minimum, whether the failure to provide a given network element would impair the competitor's ability to provide service. In response, the FCC invented TELRIC and UNE-P. During the eight intervening years, wireline telecommunications has been in turmoil, with non-stop litigation and remand causing uncertainty. On remand from the D.C. Circuit, the FCC published its controversial Triennial Review Order (the "TRO"). In what has been called a "power struggle" and a"palace coup," the TRO was passed by an odd coalition of FCC Commissioners Copps (D), Adelstein (D), and Martin (R), over the dissents of Chairman Powell (R) and Commissioner Abernathy (R). In USTA II, the D.C. Circuit predictably vacated and remanded portions of the TRO, while upholding other parts. FCC Chairman Powell supports USTA II. However, the odd coalition of FCC Commissioners has urged the Solicitor General to petition for certiorari. Such request results from a power struggle within an independent agency and falls outside one of the Solicitor General's core functions, namely, to defend Executive Branch policy that has been duly implemented by federal agencies.