By Brian W. Murray
One of the most well-known laws is one of science—for every action, there is an equal and opposite reaction. When considering recent trends in federal communications regulation, one must wonder whether the same principle is at work.
For several years, the Federal Communications Commission (“FCCâ€) systematically eliminated longstanding regulatory requirements that otherwise would have forced owners of broadband platforms to give competing service providers nondiscriminatory access to their networks to assure them a means of reaching customers. The general theory was that the proliferation of networks that support broadband-based services placed competitive pressure on network owners, such that they would be pleased voluntarily to provide wholesale access to their non-facilities-based competitors in order to maximize the number of customers on their networks—without any need for a regulator to tell them to do so.
The regulatory pendulum is now swinging the other way. During the last year in particular, the FCC has demonstrated a renewed fondness for using regulation to restrain the conduct of broadband service providers and network owners, this time with a specific focus on enabling consumers to access and use broadband-capable platforms to the greatest extent possible. This trend has manifested itself through the imposition of what can loosely be described as a series of consumer-oriented “access†mandates—rules that, in one way or another, are intended to restrict service providers from binding customers to, or impairing their use of, a particular network.