WASHINGTON-The ground shifted under the telecommunications regulatory landscape March 19 when the Federal Communications Commission did nothing-or at least nothing official.
By not acting, the FCC granted a forbearance request from Verizon Communications Inc. that its high-capacity broadband network not be subject to common-carrier regulation.
This is the first time since passage of the Telecommunications Act that such a high-profile action has been taken by the FCC by “operation of law.” In the telecom act, Congress said an entity could tell the commission that a specific regulation was no longer necessary due to competition. The agency must act within 15 months or the petition is granted by default. Verizon made its request in December 2004. The clock ran out March 19.
It is not clear which regulations Verizon will be freed from, however. It seems certain that business customers will soon face higher prices, and Democrats at the FCC warned that other regulations-like compliance with the digital wiretap act and disabilities access-may be in danger. Verizon has said it will continue to pay into the universal-service fund.
It is clear from the statements released March 20 that had FCC Chairman Kevin Martin tried to push through an official document granting Verizon’s petition, that it would have failed since he could not convince the two Democrats on the panel to agree with him.
“This is not the way to make environment-altering policy changes,” said FCC Commissioner Michael Copps. “This sweeping petition is unaccompanied by any regulatory footsteps. Here we permit a forbearance petition to go into effect that erases decades of communications policy in a single stroke. In effect, we provide industry the pen and give it the go-ahead to rewrite the law. Congress instructed this agency to implement the law; it did not tell us to delegate far-reaching policy changes to the companies that fall under our jurisdiction.”
The other Democrat on the panel, FCC Commissioner Jonathan Adelstein, said in his “dissent” that Verizon failed “to provide the sort of detailed evidence required for forbearance.”
The dissents showed that notwithstanding the high praise Martin has been receiving as a consensus builder, the Democrats are starting to push back.
FCC members serve five-year terms and are selected from both political parties. The commission has not had five members since last year when former chairman Michael Powell left the agency. Currently, the FCC is split evenly with two Republicans-Martin and FCC Commissioner Deborah Taylor Tate-and the two Democrats.
Robert McDowell, senior vice president and general counsel at CompTel, has been nominated by President Bush to fill the fifth chair at the commission. The Senate Commerce Committee March 16 sent McDowell’s nomination to the full Senate for its consideration.
McDowell’s nomination was not acted on before the Senate left town for a week-long recess and now holds have been placed that could put his ascension to the FCC in limbo. A hold is when a senator indicates he or she may filibuster a nomination. To prevent wasting time on the Senate floor with a filibuster, items with holds are rarely brought up for consideration until the hold is removed. In McDowell’s case, the holds do not appear to be aimed at him but rather his nomination is being used as a bargaining chip. RCR
