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Publication Citation

57 Federal Communications Law Journal 243 (2005)


The Federal Energy Regulatory Commission ("FERC") and the Federal Communications Commission ("FCC") have undergone a remarkable role reversal. After years of resistance to the very notion of competition in the electric and gas industries, FERC has, with considerable vigor and consistency spanning nearly two decades, promoted policies to open access both to gas pipeline and high voltage electric transmission networks to downstream competitors of the network owners. FERC has stated plainly and repeatedly that the underpinning of these policies is that open access is essential to the protection of competition in the sale of the largely deregulated services reliant upon those networks. By contrast, the FCC has done an about-face, reversing nearly forty years of policymaking to pry open cable and telecom networks and substituting a near total reliance on unregulated intermodal competition among a handful of broadband providers to protect the public. The FCC's purpose, stated plainly and repeatedly, is to ensure that regulatory burdens do not discourage investment in broadband technologies or deter its deployment. In his Article, Harvey Reiter examines the forces that led to the development of FERC's open access policies and explores the FCC's policy shift and its philosophical underpinnings. He concludes by questioning whether differences in either industry structure or the regulatory schemes governing the energy and communications industries justify the FCC's hands-off policy, and offers suggestions for a different approach.