There’s a whiff of the bizarre in the FCC’s new unbundling decision (see Wayne’s excellent post below). Let’s recap: in 1999, the Supreme Court threw out the FCC’s first stab at unbundling rules. The Commission changed them slightly, but the DC Circuit threw these out in 2002. The FCC’s third try was also thrown out in March. A clearly agitated court gave the FCC a deadline: 60 days to fix the problems, or the rules are gone. That seemed pretty clear. But the process goes on!
The FCC got an extension of its deadline until June 16. It then asked for more time, but was flatly turned down by the DC Circuit. The rules would be vacated in June. No more extensions. No more delays. So what happens? In this weeks decision, the FCC in effect gave itself up to a year’s further extension to write new rules. So much for deadlines. Robert Pepper, the FCC’s long-time policy chief and avid student of bureaucracy speaks of the “infinite elasticity of process” in regulatory proceedings. There’s no better example that this.