Charlie Meyers' outdoors column in The Denver Post presents a classic Coase-ian situation. A roaming bison herd ignores fences and despoils the South Platte, a magnificent trout fishery.

I will forgive Mr. Meyers for missing the Coase theorem's application here. The extra-credit question: what is the problem preventing a solution? I turn that over the Law and Econ of the Information Age students.

There's nothing so seemly as members of the FCC leapfrogging each other to be against indecency.

An ice storm in the Carolinas has delayed my reading of today's papers. No matter, the papers were chock full of good stuff yesterday. The Washington Post had a story on the race to name computer viruses. It takes readers through the process of naming the MyDoom virus. In all, some 77,000 pieces of malicious code have been identified. Usually, the names result from accepted and informal standards that have emerged in the anti-virus community. A move is afoot to formalize the process.

Master telecom polemicist Peter Huber wrote about the Attack of the 'Cuisinart' Regulators on the op-ed page of The Wall Street Journal. (Registration required.) While we typically think of wireless as the "unregulated" segment of the telecom marketplace, Huber dispels the notion by recounting the reasons how and why spectrum has been patiently re-combined by national providers. His bottom line: "Every rationale for chopping up the stuff of networks has thus been repudiated by the market. The Cingular merger should be approved forthwith, and without conditions."

He clings to the unfashionable idea that networks have value because they combine various assets. If only regulation on the wireline side of things would recognize this obvious truth. More networks, and more investment in network facilities, are rewarded by innovation and increased consumer demand. I for one would not want to be a "Cuisinart" anything...and Huber's piece is a fine argument against using the government to "chop up" telecom networks.

A new and interesting-looking book is described on the AEI website -- Poor People's Knowledge: Promoting Intellectual Property in Developing Countries.

According to the blurb: "This book is about increasing the earnings of poor people in poor countries from their innovation, knowledge, and creative skills. . . . The contributors' motivation is sometimes to maintain the art and culture of poor people, but they recognize that except in a museum setting, no traditional skill can live on unless it has a viable market. Culture and commerce more often complement than conflict . . . . "

It sounds like more support for the view that property rights and markets are important instruments for the promotion of culture as well as wealth.

Today the Washington Post reports on a letter sent from a dozen telecommunications and regulatory scholars to conservative leader Grover Norquist. The letter calls for a national broadband policy to promote deregulation. As a friend, colleague and usual ally, the letter calls for Grover to join the fight for free markets and deregulation. And we all know Grover is not one to avoid an opportunity to fight for limits on government meddling.

What may be lost on readers of the news story is a pattern of support for new governmental interventions in the telecom marketplace and new economic regulation. An earlier post goes right to the heart of the issue with an excellent link. No reason to expect the give and take on this issue to go away anytime soon.

I do have one major quibble, and it is with the copy desk at the WP where I assume the headlines are written, there is nothing unusual about disagreement among conservatives or scholars. It is part of the discovery and education process.

Well, everybody's having their say about VoIP. (BTW, if you want to act like you are "in the know" then you pronounce it "V-OY-EEP", rather than "Vee-Oh-Eye-Pee". One day about two months ago, without any warning, those of us in the know switched pronunciations, probably for metaphysical reasons.)

Anyway you say VoIP, everyone is talking about it. In today's Personal Technology column in the Wall Street Journal, Walter Mossberg, under the headline "Vonage Makes Phoning Through the Internet Convenient and Cheap," writes: "If you're sick of your local or long-distance phone company, you now have an alternative: Internet phone calling." What's all this crazy talk about local phone competition?

Mossberg reviews the features and pricing that makes Vonage's offering attractive. But for anyone having difficulty understanding why "V-OY-EEP" services like Vonage's are interstate services that should be (and must be) effectively free from state economic regulation, consider the following from Mossberg's column:

[I]f you don't want to keep your current phone number, you can choose a new one, free of charge, from nearly any area code in the country. So, you could be in Des Moines, but have a New York City phone number. And you can move your adapter box to another location, even overseas, and plug it into a phone and a broadband Internet connection. You will still be covered by your same rate plan, and will still appear to be calling from your own phone number at home. Plus, Vonage offers "virtual phone numbers" for an additional $5 a month each. These extra numbers can have different area codes, but will ring on your regular phone. So, if you lived in Boston and your mother lived in San Francisco, you could add a virtual San Francisco number and when your mother called you, it'd be a local call.

What's a PUC to do? Get restraining orders to prevent Vonage's customers from moving their adapter boxes across state lines? Maybe there will be a new crime: Transporting a Vonage adapter box accross state lines with intent to continue making cheap phone calls. May get you up to a year in the state penitentiary.

Sooner or later, there will have to be a recognition that, in today's competitive environment, it's time for a new deregulatory telecom paradigm that will be applicable to all service providers, and one that is not dependent on VoIP Metaphysics. Sooner is better.

Tyler Cowen has some interesting thoughts on computer games, art and culture, over at Marginal Revolution.

The Senate Commerce Committee held a hearing this morning on VoIP. [It is that link above the very important "Seafood Processor Quota Hearing." Finally, the Senate will address that smelt overfishing epidemic!]

The statements are here: Senator McCain, Senator Alexander, Chairman Powell, Jeff Citron of Vonage, Glenn Britt of Time Warner Cable, Glenn Post of CenturyTel, Stan Wise of the Georgia PSC, and Kevin Werbach of Supernova Group.

All witnesses have high praise and hopes for VoIP. But the consensus breaks down there. Not surprisingly, no one is for "unnecessary regulation" (which usually has a burgeoning constituency). Senator Alexander, Glenn Post and Stan Wise give voice to the "regulate it more" position. By contrast, Senator McCain, Chairman Powell, Jeff Citron, Glenn Britt and Kevin Werbach argue that VoIP should be left relatively unregulated. My sympathies lie with the latter group.

VoIP does bring the defects of the current intercarrier compensation system to the fore, however, and these are difficult issues to resolve. It would be a colossal mistake to drag a new technology into the old regulatory paradigm, but the legitimate reliance interests on the old intercarrier compensation model cannot simply be ignored. It will be a signal exercise in regulatory prudence to work it out. Good luck, Mr. Chairman.

Senator John Sununu enters the VOIP fray this morning with an op-ed in The Wall Street Journal. (Registration required). He promises to introduce legislation soon to prevent undue regulation of Internet telephony. The contours of his legislation include 1) VOIP defined as an information service, 2) federal jurisdiction for VOIP and other Internet-based applications based on the Commerce Clause, 3) and he says "my bill will protect this data service from taxation."

Cynics might argue that the legislative process is long and cumbersome and so there is little to cheer in the mere announcement of legislation. Fair point. The FCC will take action before the U.S. Senate. Nonetheless, the legislature is ready to join the fray on an important regulatory issue and this is good. However, there is a secondary good achieved by Mr. Sununu this morning. It is educational. We have an attractive and articulate Senator from a swing state promoting a pro-growth, un-regulatory position for the digital economy. In many respects, he is echoing the sentiments of a prominent federal regulator on these issues. It is an interesting one-two punch but if there is no follow-up from the White House, an opportunity to take action on an innovation agenda for the economy - and for consumers - will be missed.

Back in September, I wrote a piece in Legal Times called "Checkmate in the Judges Game" urging President Bush to use his recess appointment power to try to break the Senate filibusters holding up several of his key judicial nominations. I wasn't really that optimistic that he would do it, but in January, the President appointed Charles Pickering to the Fifth Circuit Court of Appeals on a recess basis. And today he has given a recess appointment to the Eleventh Circuit to William Pryor, Jr., the Alabama Attorney General, who was nominated to the bench more than 10 months ago and whose nomination had been favorably reported out of committee.

Here's what I wrote back in January in this space when Judge Pickering received his recess appointment:

1.16.2004
It's Recess Time
I just heard that President Bush has given Charles Pickering a recess appointment to the federal bench. In my September 8 column for Legal Times, "Checkmate in the Judges Game," I recommended that, in light of the Democrats' Senate filibusters of the President's judicial nominees, he offer some of the stalled nominees recess appointments. At the time, I think I was the first, or certainly among the first, to urge in writing the recess appointment course of action.

Not unimportant topics for discussion in a democracy during an election year!
- posted by Randolph May @ 1/16/2004 04:12:27 PM

Well, that's still my view. An election year is a good time, maybe the only time, to have a constitutional conversation about the role of the courts, the confirmation process, and proper modes of constitutional interpretation. Such a ongoing dialogue--and the education that results--is essential to maintaining a culture which repects the rule of law.