IPcentral Weblog
  The DACA Blog

Wednesday, February 16, 2005

Rumblings from Boulder: Consensus and Next Steps in Telecom Reform
(previous | next)

I echo Adam's praise of the Silicon-Flatirons (SF) conference on how to reform communications regulation amidst the "digital broadband migration," a concept FCC Chairman Michael Powell explored in a series of major speeches at previous SF conferences. (Of particular note in this regard was Powell's 2004 speech emphasizing the importance of achieving so-called "network neutrality" or "Net freedom" without preemptive regulation.) This weekend's conference underscored SF's reputation as an intellectual focal point for understanding and rationalizing the burgeoning field of "information law" -- an amalgam including communications law, intellectual property law, antitrust and competitive policy. To those wearied by the "he said-she said" of most telecom debates within the Beltway, this event in Boulder rightly has established itself as the thinking-person's policy conference. I would add to Adam's list of luminaries D.C. Circuit Judge Stephen Williams, Dale Hatfield, Mark Cooper and Qwest CEO Dick Notebaert.

Despite the wide range of strong opinions among participants, my take is that a rough consensus emerged on several key issues. This rough consensus provides much-needed guidance on how those who favor a "light touch" for regulation and those who would tolerate a heavier hand can come together to address the myriad issues arising from the emergence of digital technologies.

The various presentations, reactions and rebuttals confirmed that virtually all sides agree that it is a worthy goal to maintain and promote the "openness" that currently enables producers of content, applications, services and devices to offer those goodies to Internet users with few limitations other than available bandwidth. If the Net is to remain an engine of competition and innovation, such freedom will be its essential fuel. And no one disputed that mandating access to broadband Internet access by independent ISPs (i.e., ISP "open access") may not be appropriate to secure such freedom.

Relatedly, there was no obvious disagreement with Professor Lessig's contention that policymakers should see the value of the Internet holistically, as many of its benefits derive from the interaction of its many components (e.g., infrastructure, software, content), rather than from any discrete part of the "open" whole. As Professors Weiser and Shelanski emphasized, the applications, content and devices of the Internet rely on networks, and those networks become more valuable as such reliance increases. The values identified via this holistic view ranged from economic efficiencies among complementary features of the Internet to various social goals (e.g., universal availability, public safety and wiretapping for law enforcement). Speakers generally presumed these social goals would be pursued in some form or fashion even as communications regulation evolves.

The speakers also seemed to share a recognition -- expressly or in essence -- that rational reform of communications regulation must involve some analysis resembling the so-called "layered approach" to regulation, which attempts to assess the need for regulation by analyzing the characteristics of each modular component or "layer" of the Internet separately. (A possible exception to this generalization was Powell, who suggested the Communications Act might be amended to create something resembling a regulatory "safe harbor," where certain uses of Internet protocol-based technologies would be exempt from regulation.) Some speakers appeared justifiably hestitant to embrace the approach given MCI's unfortunate appropriation of it to advocate regulation consistent with its business strategy. Technical experts emphasized further that the layered approach's value is more descriptive than prescriptive; at a minimum, the boundaries between Internet layers -- to the extent they can be identified at all -- are blurry and may vary dramatically among current uses and over time. Yet all essentially conceded that, as specialized cable, telephone and other networks morph into versatile competing broadband networks, similar capabilities should be regulated similarly, if at all. And whether and how a capability is regulated should turn largely on economic factors, such as whether any firms have the power to undermine competition in the provision of that capability.

In addition, the speakers also generally agreed on the goal of increased competition among "last mile" providers of broadband Internet access, which are currently comprised primarily of cable modem and DSL providers. Speakers offered differing estimates as to how many providers are needed to eliminate the need for regulation, but all appeared to endorse the idea that promoting competition among networks would be the best way to ensure continued benefits for consumers.

But the agreement on the benefits of broadband competition drew attention to the one major disappointment in this weekend's discussions: the reluctance among some to engage on the issue of how -- in light of the goals of openness and a "layered" approach to regulatory reform -- policymakers can simultaneously promote investment and innovation in competing broadband networks. To some extent, this shortcoming reflected the tendency among some of the staunchest proponents of government involvement with the Internet to transcend clever (albeit powerful) theory to offer concrete proposals on how to ensure that such involvement creates more benefit than harm. This tendency seems particularly troubling given regulatory agencies' institutional shortcomings (e.g., agencies' self-interest in expanding regulation unnecesarily or preserving it beyond its useful life). The result was that, other than comments by Professor Shelanski and Chairman Powell, the conference included little or no discussion of how to promote investment and innovation in competing broadband networks either as a general matter or to the extent that goal must be balanced against other goals, such as openness.

The reluctance of some speakers to talk about how to get networks built, however, does not excuse the reluctance (in other contexts) among champions of network investment to concede that there may be other, even competing, policy goals for the Internet. And certainly, nothing I say here should be viewed as detracting from the overall value of the conference discussions. Indeed, the "disappointment" to which I refer above is beneficial at least in suggesting some next steps in reshaping communications regulation to fit the digital age. Specifically, it suggests that the advocates of openness and use of the "layered approach" should resolve to get their hands dirty with the knotty, practical concerns of fostering incentives for the private sector to accelerate investment in competing broadband networks. But it also suggests that some of us network investment "hawks" should do more to embrace openness as a goal and to concede that the "layered approach" may hold some analytical value if its prescriptive limitations are respected.

posted by Kyle Dixon @ 2:55 PM | Antitrust & Competition Policy , Broadband , Capitol Hill , Communications , IP

Share |

Link to this Entry | Printer-Friendly

Post a Comment:

Blog Main
RSS Feed  
Recent Posts
  EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
New OECD Study Finds That Improved IPR Protections Benefit Developing Countries
Hubris, Cowardice, File-sharing, and TechDirt
iPhones, DRM, and Doom-Mongers
"Rogue Archivist" Carl Malamud On How to Fix Gov2.0
Coping with Information Overload: Thoughts on Hamlet's BlackBerry by William Powers
How Many Times Has Michael "Dr. Doom" Copps Forecast an Internet Apocalypse?
Google / Verizon Proposal May Be Important Compromise, But Regulatory Trajectory Concerns Many
Two Schools of Internet Pessimism
GAO: Wireless Prices Plummeting; Public Knowledge: We Must Regulate!
Archives by Month
  September 2010
August 2010
July 2010
June 2010
  - (see all)
Archives by Topic
  - A La Carte
- Add category
- Advertising & Marketing
- Antitrust & Competition Policy
- Appleplectics
- Books & Book Reviews
- Broadband
- Cable
- Campaign Finance Law
- Capitalism
- Capitol Hill
- China
- Commons
- Communications
- Copyright
- Cutting the Video Cord
- Cyber-Security
- Digital Americas
- Digital Europe
- Digital Europe 2006
- Digital TV
- E-commerce
- e-Government & Transparency
- Economics
- Education
- Electricity
- Energy
- Events
- Exaflood
- Free Speech
- Gambling
- General
- Generic Rant
- Global Innovation
- Googlephobia
- Googlephobia
- Human Capital
- Innovation
- Intermediary Deputization & Section 230
- Internet
- Internet Governance
- Internet TV
- Interoperability
- IP
- Local Franchising
- Mass Media
- Media Regulation
- Monetary Policy
- Municipal Ownership
- Net Neutrality
- Neutrality
- Non-PFF Podcasts
- Ongoing Series
- Online Safety & Parental Controls
- Open Source
- PFF Podcasts
- Philosophy / Cyber-Libertarianism
- Privacy
- Privacy Solutions
- Regulation
- Search
- Security
- Software
- Space
- Spectrum
- Sports
- State Policy
- Supreme Court
- Taxes
- The FCC
- The FTC
- The News Frontier
- Think Tanks
- Trade
- Trademark
- Universal Service
- Video Games & Virtual Worlds
- VoIP
- What We're Reading
- Wireless
- Wireline
Archives by Author
PFF Blogosphere Archives
We welcome comments by email - look for a link to the author's email address in the byline of each post. Please let us know if we may publish your remarks.

The Progress & Freedom Foundation