Did the FCC Knowingly Use a Flawed Study To Create New Regulations?

A few months ago, the FCC issued a Notice of Proposed Rulemaking (NPRM) on business data services — essentially, broadband-like services sold to businesses and enterprises, commonly referred to as special access services.  In most instances, these business-to-business services are currently deregulated, so the notice came as quite a surprise to the industry.  To justify its regulatory inquiry, the FCC released a third-party econometric study, along with the NPRM, which showed concerns.  At that time, the FCC did not release any peer reviews of the study, as required by the Administrative Procedures Act. 

Over the next two months, the FCC collected data from the industry and comments from the public.  On the very day that pubic comments were due, the FCC released peer-reviews which concluded that the initial econometric study was seriously flawed.  In other words, the impetus behind issuing a regulatory notice was contrived.  Now the FCC has collected its public comments, it can move ahead with new rules and regulations for these special access services, be there a justification or not. 

Based on this, we can only suspect that the FCC knew what it would order before it issued the NPRM.  In other words, public comments are just a formality for this “independent agency.” 

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