As noted below, the Chairman offered a fig leaf and recommended compromise to state regulators. One way to read last week's Circuit Court ruling is to see Powell as the big winner. Clearly, he dissented last year on the aspects of the TRO that received the most stinging rebuke from the court. But he did not gloat. Rather, he set out to explain his reasoning on the delegation question. In part he said,
"What the Commission may not do, however, is recruit -- like Huckleberry Finn--someone else to do the job Congress specifically directed us to do. Just as States are charged with setting UNE prices and it would not be proper for them to turn that responsibility over to the FCC --- as States themselves argued to the Supreme Court in Iowa Utilities --- the FCC cannot abandon its responsibilities to the states--no matter how competent or credible they may be."
Notwithstanding the reference to Huck Finn when he probably meant Tom Sawyer, Mark Twain's parable about work is instructive in another way. Below is an excerpt from a speech I gave last fall at the Roaring Fork in Austin, Texas. I spoke to a group of legislative staff who are working on a rewrite of the telecom law.
And as I crouched down, paint bucket and brush in hand, I began to think about what I would share with you today. I kept coming back to that great American hero, Tom Sawyer. Try as I might, I could not think much about unbundling or market-share apportionment, IXCs and ILECs and CLECs could not wedge their way into my head.
All I could think about was our literary friend Tom. In fact, I even pulled the book off the shelf and took a quick peek this morning. The lesson Twain imparts is familiar enough. Work is what you are obliged to do and play is what you are not obliged to do. However, the essence of this little episode is quite striking. Tom Sawyer gets paid to have others do his Saturday morning chore.
Starting with his pal Ben Rogers, he convinces others to whitewash his Aunt Polly's fence. Amazingly, he also forces his buddies to pay him for the privilege. By the end of the morning he is far richer. Among his new treasures are a kite in good repair, a dead rat on a string, 12 marbles, a spool cannon, a tin soldier, tadpoles, firecrackers, a one-eyed kitten and a dog collar.
As Twain tells us, "Tom was literally rolling in wealth."
As the Chairman indicates, Twain tells us something about the delegation question. And, Twain also has a something to say about other telecom questions (of sorts). Consider that Tom persuaded others (without any regulation!) to pay him while they did his work. MMmmmm - Collecting economic rents while others do the work of maintaining facilities. It sounds vaguely familiar.
