Commlaw Source

FOLLOWING THE TELECOMMUNICATIONS INDUSTRY AND RELATED LEGAL TOPICS

Wednesday, May 10, 2006

Hey Wonks, It's About Enforcement, Not Regulation...

Yesterday Verizon's Tom Tauke threatened to do for any net neutrality legislation what Verizon and the other Bells did for the 1996 Telecom Act: destroy it through endless litigation. Verizon and AT&T loooove competition! Just ask them, or check out the 2 full page ad in today's Washington Post. But competition with an effective enforcement mechanism?! Gasp!

In the current net neutrality debate, the one item missing is enforcement. Our Hill "idea guys" apparently don't care much for "implementation." If there's one lesson to be learned from the 1996 Telecom Act it's that enforcement matters. And lack of enforcement will kill an industry.

The old AT&T and MCI failed colossally by focusing on policy, not enforcement.

Case in point ... interconnection agreements. Even though the Communications Act (and Telecom Act) make it clear that parties can go directly to federal court for violations of the Act and federal contracts made under the Act, the BOCs pretty successfully bogged competitors down into an endless mire of state public service commission proceeding.

Name one case, just one case in the last 10 years where a federal district court awarded damages to a competitor under an interconnection agreement?

Right, we don't know of one either, and it's not because the BOC is so nice.

The closest we know of is case filed at a state commission 1999 that is STILL on-going. There the competitor obtained a bad faith finding against the BOC. The best hopes is that the competitor will be able to pursue a damages claim in federal court by the end of this year - over seven years after the initial filing.

WAKE UP WONKS ... it's about enforcement. Tom Tauke will filibuster you to death in policy debates, and haul you to the D.C. Circuit at the drop of a hat. Even if you win a round or two of the fight, you'll have nothing without a real means of enforcement.

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