The special access marketplace provides dedicated high-capacity connections that serve voice and data needs for smaller carriers, large businesses and government through lease agreements with larger telecommunications providers. In 1999, the Federal Communications Commission (FCC) voted to deregulate the special access marketplace, which has helped to spur growth and innovation in all areas of telecommunications.

In the 13 years since FCC deregulated the market, some special access customers have sought to have the FCC establish price controls to gain easy access to the marketplace and lower prices. However, history has shown that price controls slow innovation, reduce investment, create shortages, and cause costs to be passed onto others. In 2010, the FCC requested voluntary data from providers about the marketplace, but received a minimal response to the request. On September 19, 2011, the FCC requested voluntary data from the market providers. Unfortunately, because of the voluntary nature of the request, few providers provided adequate data for the commission to review in order to determine the true competitive nature of the special access market.

Despite the lack of adequate data, on August 15, 2012, the FCC voted 3-2 to temporarily suspend the 1999 order allowing automatic grants of pricing flexibility for special access services, based on concerns raised by smaller carriers and others that the rules are not working as predicted. Several commissioners pointed out the lack of data to support the decision.

In his dissenting statement, Commissioner Robert M. McDowell stated, “Today, the majority has opted to suspend a thirteen-year-old special access regulatory framework without an adequate evidentiary record or market analyses, both of which are necessary to make such a sweeping rule change. In doing so, the majority chose to lay its procedural path backwards.” Commissioner Ajit Pai also charged the commission with implementing mandatory data collection in order to gather facts instead of “jumping to conclusions.” Commissioner Jessica Rosenworcel stated, “I would have preferred that the Commission concurrently issue a mandatory data request to begin the long-overdue process of collecting the information necessary to move forward with special access reform.” As noted by the commissioners, only a mandatory data collection order would result in accurate information that would allow for a fully informed decision on the future of special access.

In her statement of support for the order, Commissioner Mignon L. Clyburn indicated that a mandatory data collection order would be forthcoming within 60 days of the decision. However, the mandatory data request has yet to be seen.

It is mind boggling that the FCC can make a decision on price flexibility for special access absent supporting data showing that re-regulation is necessary. Much like the infamous net neutrality ruling in 2010, in which the FCC decided that while no harm had occurred to consumers, the Internet needed to be regulated, the FCC has once again put the proverbial cart in front of the horse by ruling on an order before obtaining complete and accurate data showing that re-regulation of special access is required.