Endangered Species, Lassoes, and Unmet Promises

I. INTRODUCTION II. A LEARNING EXPERIENCE III. DOING BETTER NEXT TIME A. Endangered Species B. Lassoes C. Unmet Promises IV. CONCLUSION I. INTRODUCTION The Eighth Circuit, in its famously evocative scolding of the Federal Communications Commission CFCC") for overstepping its jurisdiction, wrote that the division between state and federal regulatory responsibilities was defended by a fence that was "hog tight, horse high, and bull strong...." (1) We Easterners, who thought we had done a pretty good job of anticipating in the 1996 Telecommunications Act ("1996 Act") and its implementing regulations what would be necessary to jump start competition, chuckled over this amusing regionalism. We also agreed that one of the best things about the 1996 Act was that it did not require all appeals to go to the District of Columbia Circuit where such colorful words would have been doused with bleach before seeing the light of day in a published opinion. I suggest in this Essay, in homage to the Eighth Circuit's metaphor, a three-part image of what to anticipate in the rewriting of the 1996 Act, whether that occurs wholesale or piecemeal over the next months or years: endangered species, lassoes, and unmet promises. As developed below, endangered species are legacy concepts that may not--some would say should not--survive the next rewrite. Lassoes apply to fields that are not typically regulated as part of telecommunications, but are increasingly susceptible to being roped into telecommunications regulation, for better or worse. Unmet promises are found largely in the area of public safety spectrum policy and reflect the real-world problems that have cropped up and remain unaddressed while the bulk of telecommunications policy remains aimed at facilitating commercial service offerings. II. A LEARNING EXPERIENCE The eight years following the Eighth Circuit's opinion, rounding out a decade of experience with the 1996 Act, would prove that the authors of the 1996 Act, of which there were many in the government and in the private sector, underestimated some things and overestimated others. The mantra that the authors did not foresee the importance of the Internet is one of the most repeated pieces of conventional wisdom about the 1996 Act. It does not matter whether that assertion is literally true; what is certainly true is that no one could have predicted the brisk adoption rates and price decreases that made Internet access and the applications dependent upon them so popular in both residential and business settings. In this sense, the authors underestimated the impact of the Internet. (2) The authors also overestimated how easy it would be for competitors to the incumbent local exchange carriers ("ILECs") to induce customers to switch providers and thereby gain market share and revenue that would make them sustainable businesses. They also overestimated the ability of a system of regulations to create the conditions for allowing competition to gain a foothold. Whatever impediments the ILECs may have placed in the road for competitors, the on-the-ground reality for the competitors' sales teams was that getting customers to accept the risk of switching carriers was difficult. Customers were hesitant to do so unless they were extremely dissatisfied with the incumbent for their own reasons or the competitors could promise significant long-term savings, which created a business plan at war with itself. In the first years after the 1996 Act's passage, the February anniversary of its enactment was a grim, geeky commemoration for its authors and adherents. Those still in government geared up for the day with briefing books and talking points for their principals urging patience in the wait for competition. The press published annual reviews of progress and pratfalls in the 1996 Act's implementation. (3) The authors' protestations that it was too soon to tell was an unsatisfying retort. …