"Cooperative Federalism" Gone Wrong: The Implementation of the Telecommunications Act of 1996

The phrase ‘‘cooperative federalism’’ has been used to refer to ‘‘federal programs that charge state agencies -as well as federal ones -with the responsibility of interpreting and implementing federal law.’’1 Because cooperative federalism entails ‘‘shared federal and state government responsibility,’’2 it raises difficult and continuing questions about the extent to which the responsibilities of these government entities overlap, and how this overlap may best be accommodated to achieve the program’s objectives. A relatively recent example of a cooperative federalism statute is the Federal Telecommunications Act of 1996 (‘‘the Act’’).3 Among other things, the Act imposes a duty on incumbent local telephone companies (‘‘Incumbent Local Exchange Carriers’’ or ILECs) to share portions of their networks with carriers seeking to compete with them, thereby promoting a form of retail marketing competition for telecommunications services.4 Because this and other duties imposed by