As I mentioned in my testimony before the Senate Commerce Committee and again at an economics conference this week, addressing network neutrality concerns on a case-by-case basis can mitigate some of the potential risks associated with prophylactic rules in this area. But it's worth underscoring another benefit that would result if Congress adopted this approach in new legislation: it would clarify government's authority to address the concerns underlying proposed network neutrality mandates.

Given the eminence of the other speakers on yesterday's ABA panel regarding antitrust in the broadband world, it is not surprising that the discussion went far beyond debating various interpretations of the Supreme Court's Trinko decision. We also explored -- the Court's opinion aside -- the extent to which antitrust should serve as a backstop to FCC regulation.

But taking FCC regulation largely as given and then considering the proper role for antitrust may not go far enough; our talk raised issues that made me wish we had considered the interplay between antitrust and regulation more holistically. Given the general agreement that competitive analysis will be a critical element of the government's involvement with broadband going forward, policymakers should begin to develop consensus regarding which arm of government should conduct that analysis and why.

Debate lingers regarding the impact of the Supreme Court's decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP on the application of antitrust law to the highly-regulated communications industry. Some suggest Trinko virtually, if not categorically, displaces antitrust oversight of the industry, while others argue Trinko obviates antitrust oversight only where a court concludes that FCC and state regulators adequately police anticompetitive behavior.

Given this debate (and considerable dicta in Trinko), questions will remain regarding how the decision may affect government efforts to promote competition in communications, especially with respect to broadband services. Yet despite worries that most consumers will never enjoy competition much beyond cable and telephone company offerings, it seems unlikely that broadband providers will be found to violate antitrust laws in the near term, even if Trinko does nothing to curb the scope of such laws.

Google's announcement that it would add an instant-messaging and voice service called "GoogleTalk" to its already popular search engine put a fine point at the end of PFF's Aspen Summit. As reported in the New York Times [registration required], the announcement underscored the growing market influence that has fanned flames of fear among Google's rivals. These fears -- reminiscent of allegations against Microsoft -- offer yet another compelling reason why companies that are (or hope to be) successful in the Internet space should think twice before seeking to impose mandates like "network neutrality" on their infrastructure-building competitors.

Minimizing regulation of broadband is critical to maximizing incentives for the private sector to build what market participants and policy folks of all stripes want: competing broadband networks. Such competition will do a better job than the government in bringing consumers the full benefits of the broadband Internet. That said, the FCC's recent moves to unshackle the Bells and other large phone companies to provide broadband may enjoy only feint praise from their competitors, as my "Outside the Box" column in SkyReport explores.

As policy mavens continue to digest the import of the FCC's decision to adopt a Policy Statement in support of "net neutrality," one question looms: will the Statement make it more likely that broadband providers will be required to give consumers this unfettered use of content, applications and devices? I think the answer to this (admittedly close) question is "probably not."

As rumors mount regarding whether the FCC will adopt an order to deregulate telephone companies' broadband offerings and what such an order would say, it's a good time for a review lesson (egoistically, of my previous comments in this blog). In particular, it is a good time to review that there are two related, yet distinct, questions the agency must answer as it establishes a new framework for regulating these services:

First, the FCC must decide when these services are "telecommunications services" and when they are "information services" (i.e., the statutory classification of these services).

Second, the FCC must determine whether and when regulatory obligations should be imposed on these services, as the statute gives the FCC some leeway in how it regulates within each classification.

In the short-hand that typically characterizes the rumor mill, this two-step analysis typically gets blurred. But only by distinguishing these steps can one discern several important implications regarding how broadband deregulation is likely to unfold -- even if such implications ultimately are muted by the nature of policymaking within the Beltway.

This blog devoted to appellate litigation has an interesting Q&A from August 2004 with Seventh Circuit Judge Frank H. Easterbrook. He is not yet 60 years of age, but his name doesn't show up in the popular press as a contender for the Supreme Court. It should. The interview offers something for (nearly) everyone. Judge Easterbrook touches on what OSHA would say about the bottomless death pits in Star Wars as well as how he would use a trap door to dispose of advocates who violate the Court's rules.

Near the end of the interview, Easterbrook revisits his disdain for neologisms like "cyberlaw," written up memorably here as "Cyberspace and the Law of the Horse."

The release this week of Public Knowledge's "Principles for an Open Broadband Future" is important in at least two respects, even for those of us who disagree with some of the white paper's arguments and conclusions. First, the paper underscores that, in the wake of the FCC's Supreme Court victory in Brand X, Capitol Hill is the new battlefield for advocates of Internet openness. Second, it underscores (for the most part, anyway) how much the openness debate has evolved since the FCC began its effort to promote broadband investment and innovation by declining to saddle these services with onerous regulation.

I know everyone in the high-tech world is waiting for the Grokster and Brand X decisions to be handed down but, in my opinion, the most important decision of this Supreme Court term was handed down today in the property rights / eminent domain case of Kelo v. New London. The result was an unmitigated disaster for property rights.

The 5-4 decision (which went the wrong way thanks to Justice Kennedy) basically said that under the banner of "economic development," the State may take private property whenever it wishes. This is a disastrous result for small land owners in particular since they will no longer have any reasonable protection from local governments who seek to re-zone certain communities to appease various special interests. But I should also point out that this decision, the third bad decision for property rights this term, could also come back to haunt communications and media companies, and others in the high-tech sector. That's because this Court has just made it infinitely easier for the State to use various "public use" rationales for taking property of any variety. We've spent that last decade fighting about the rights of telecom and cable companies in the battle over forced access, and decisions like Kelo won't make it any easier for those companies to defend the property right they are entitled to in the networks they develop.

Anyway, I could go on at length about what a disaster this decision is, but I will instead just cut-and-paste some of the remarkably powerful wording that Justice O'Connor used in her dissent, which was joined by Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. At least these four justices still appreciate the importance of the Constitution, the Fifth Amendment, and property rights.