TC 310
May 14, 2008

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5 Commissioners, including 1 Chairperson
 Only 3 of the same party at any given time
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Bureaus
 Handle specific areas, hold hearings, etc.
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Enforcement
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Wireless
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Media
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Wireline Competition

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Early Telephone Networks
 Mostly unregulated
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Bell has patents, develops monopoly
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Patents expire, competition emerges, redundant
 All players want some regulation
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Bell: avoid cream skimming
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Independents: Make Bell interconnect
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States: Reduce inefficient competition

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Interstate Commerce Commission
 Mann-Elkins Act, 1910
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Telecos are common carriers
 Limits of Act
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No tariff filing requirements
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No telecom forced interconnection
 ICC Ineffectively regulates Telecom
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Cares more about railroads
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Allows rates to be set by carriers
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No national plan

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Kingsbury Commitment (1913)
 DoJ and ICC
 Letter from VP Kingsbury to Attorney General
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Divest Western Union
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No new acquisitions without ICC approval
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Interconnect to Long Distance
 Not local or to other long distance
Shreveport Rate Case (1914 SC decision)
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Smith v. Illinois Bell Telephone Co. (1930)

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Federal counterweight to Bell
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Distinctions between Federal and State
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Improve availability, quality, of radio and telephony in the U.S.
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Creates FCC to specifically deal with communication technology, no more ICC jurisdiction

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1934 limits them to interstate only
 Reversal of Shreveport and Smith
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Gives authority over all things necessary for communication
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Flexible for new technologies

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45 States have some form of regulatory commission
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98% of calls are intrastate
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1934 Act leaves authority to states to deal with rates, infrastructure, etc, for anything that is intrastate

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Networks do not follow geographic boundaries
 Equipment arbitrarily separated.
 Facilities also separated.
 Depreciation problematic
 Accounting problematic

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Federalization of local issues
 Get rid of barriers to entry, including states
 Require unbundling, interconnection at LEC
 Who has authority to do this then?
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States argue FCC has specific local authority
 Portability, numbering, unbundling
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FCC sees Act as authorization from Congress to make national rules.
 8 th Circuit rules with states; Supreme Court overturns

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North Carolina Utilities Commission v FCC
 (1976)
 CPE is at issue, NCUC not allowing connetion to network; FCC preempts
 Court upholds FCC power to do so
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Services is inseperable intra v. inter
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Inter greatly affected by intra (Smith again?)
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Power of Preemption grows

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Louisiana Public Service Commission v. FCC
 (1986)
 FCC pushing new depreciation/accounting rules
 Over turned by Supreme Court
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When it is possible to separate costs, separate jurisdictions make sense, different rates can apply.
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1996 Act grants FCC greater power, ability to preempt in order to protect competition. States still have authority, but must be neutral.

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1996 Act gives FCC power to regulate States
 FCC substitution (Section 252(e)(5))
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What constitutes State failure?
 Complaint Process(Section 208)
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Bypass States and Courts
 Entry into interLATA by LECs (Section 271(c)(2))
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Commission has to approve after completion of checklist
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Does this include pricing?

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Common Carriers regulated by Title II
 Interconnection; active, now passive
 Tariffs- must be filed with FCC
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Attempted forbearance; 1996 forbearance granted
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Why tariffing problematic?
 Just and Reasonable Rates/ No Discrimination
 Facility Building
 Competition
 Interconnection rates

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In addition to industry wide, FCC can
 Regulate internal management by owners, CEOs, shareholders. Must all be reported
 Set depreciation rates. Still battled between
States/Feds
 Mergers
 License transfer. Good for public interest?

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Complaints
 FCC first, then Court of Appeals
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Enforcement
 FCC first, can also go to federal courts
 FCC has power to enforce Act using Courts
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Private Actions
 Harmed by violation can file action for damages to
FCC. Applies to Act violations only.

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Unique power to FCC
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Authority not to regulate, uphold
Communications Act requirements
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Earlier attempts disputed by Courts, 1996
Grants
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Some limitations
 General findings period, public interest supported
 Interconnection required, interLATA BOC entry

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Triggers
 Mandatory
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Congress Command
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Judicial Order
 Optional
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Suggestion from Exec, or Leg.
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Sua sponte
 Private Party
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Vetted through public comments process

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Notice of Inquiry (NOI)
 General position, what to do
 Kills with Memorandum Opinion and Order (MO&O)
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Notice of Proposed Rule Making (NPRM)
 Report and Order (N&O)
 Goes to Federal Register
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30 days a Petition for Reconsideration
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Opposition and Replies to Oppositions
 Order on Reconsideration or MO&O