Exactly. The answer is less regulation, not more
You're right but the disconnect was always in the step between "market failure" and "therefore do this" - the "this" was never subject to the same analysis. Manipulating procedural outcomes - "well, if I can say 'market failure' it says right here we can do whatever"
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No, it doesn't - you're making the exact same mistake as "'market failure' therefore ICC". What is the actual outcome of regulating like a utility? You don't know. One can make a reasonable guess though - the same regulators that exist right now will be involved.
End of conversation
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