March 7, 2008

Public Interest Comment on Establishing Procedural Requirements to Govern Section 10 Forbearance Petition Proceedings

Key materials
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The Regulation

  • The Telecommunications Act of 1996 directs the FCC to forbear from enforcing certain regulations when competition has attained and they are no longer in the public interest. The FCC has considered forbearance petitions from regulated carriers on an ad hoc basis.
  • The FCC is considering imposing procedural rules to govern forbearance petition proceedings and has sought comment.

Our Findings

  • The FCC cannot "forbear on forbearance." Congress gave the Commission the obligation, not the option, to forbear from enforcing regulations that are not in the public interest.
  • The FCC has the power and obligation to proactively initiate its own forbearance proceedings without waiting for corporate petition.
  • The suggestion that the burden of proof be placed on forbearance petitioners cannot be justified. Congress placed the positive duty of forbearance on the Commission, not on corporate stakeholders.

Recommendations

  • The FCC should proactively examine its regulations to determine which are no longer in the public interest and immediately forbear from their enforcement. It should not simply react to corporate petitioners.
  • If the FCC decides to continue to solicit comments from the public on forbearance petitions, it should adopt formal rules for commenting. The familiar  Administrative Procedures Act notice-and-comment procedures can serve as a model.
  • The FCC should adopt a general policy that forbearance petitions are complete as filed, but it should retain the authority to grant exceptions to this when the changes to the petition are not substantive or when the Commission deems it appropriate.
  • If the Commission reaches a decision on a forbearance petition by the statutory deadline, it should issue a written order explaining the reasoning for its decision. If the petition is "deemed granted" because the FCC did not act by the deadline, it should not be able to retroactively rescind or narrow forbearance.