A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model
Journal article by Richard S. Whitt; Federal Communications Law Journal, Vol. 56, 2004
Journal Article Excerpt
A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model. by Richard S. Whitt EXECUTIVE SUMMARY |
I. OVERVIEW AND SUMMARY
II. BACKGROUND
A. The Worm of Legacy Communications Regulation
B. The Network Engineering Concept of Layered
Architecture
1. The Layering and End-to-End Principles
2. Protocol Layer Models
C. The Internet Era: Legal Walls Stay Up as Logical Walls
Come Down
1. The Communications World
2. The Internet World
III. A NEW CONCEPT: REGULATION ALONG HORIZONTAL
NETWORK LAYERS
A. Sketching the Layers Framework
1. Why Adopt a Layers Approach?
2. What Kind of Layers Model to Adopt?
B. Solum's "Layers Principle"
C. The Layers Principle and Informed Decisionmaking
D. Another Public Interest Aspect: Creating and Preserving
the "Innovation Engine"
E. Defining and Guarding Against Market Power Abuse in
the Layers
IV. APPLYING THE LAYERS PRINCIPLE: THE PUBLIC POLICY
IMPLICATIONS
A. The Layers Principle and ISP Liability
1. Regulations that Fail to Respect the Integrity of the
TCP/IP Layers
a. Physical Layer Regulation Aimed at Content Layer
Problems
i. Myanmar's "Cut the Wire" Policy
ii. U.S. Proposed to Sever Serbian Internet
Access
b. IP Layer Regulation Aimed at Content Layer
Problems
i. French Yahoo! Case
ii. Pennsylvania Anti-Child Pornography
Law
c. Transport Layer Regulation Aimed at Content
Layer or Application Layer Problems
i. The Blocking of Peer-to-Peer File Sharing
by ISPs
ii. Panama Blocks VoIP
d. IP Layer Regulation Aimed at Transport or
ApplicationLayer Problems
i. Chinese Government Blocking Access to
Search Engines
ii. Cable Company Control Over Content and
Services as a Way to Prevent Streaming
Video
iii. VeriSign's "SiteFinder" Service:
Competitive Innovation or Deceptive
Practice?
2. Regulations that Fail to Respect the Communications
System Layers
B. The Layers Principle and Traditional Common Carrier
Regulation
1. Lower Layer Control
a. Last-Mile Regulation and Competition Policy
b. Local Competition and Unbundled Network
Elements
2. Focused Regulatory Attention
a. The Basic/Enhanced Dichotomy
b. Broadband Regulation
c. IP Communications ("VoIP")
d. Other Key Public Policy Issues
i. Jurisdiction
ii. Interconnection
iii. Intercarrier Compensation
iv. Universal Service
v. Consumer Welfare, Safety, and Accessibility
Issues
vi. Investment in New Networks
vii. Retail Rate Regulation
V. CONCLUSION
| EXECUTIVE SUMMARY Time for a New Approach U.S. policymakers face a virtual conundrum: how best to incorporate the new Internet Protocol ("IP")-centric services, applications, and facilities into the nation's pre-existing legal and public policy construct. Over the next several years, legislators and regulators will find themselves increasingly challenged to make the Internet adapt itself to the already well-defined bricks-and-mortar, services-and-technologies environment that exists today under the Communications Act and other statutes. Some argue that new IP services should be "shoe-horned" into the existing requirements of the legacy system, despite the poor fit. Others believe that new classifications and definitions can be created within the confines of legacy regulations. In this Author's view, however, the optimal solution is to turn the conundrum around on itself, and to begin adapting our legal thinking and institutions to the reality of how the Internet is fundamentally changing the very nature of the business and social world. In this Article, the Author will explain that trying to impose the current, outmoded legal system onto the Internet and all its IP progeny is a flawed, damaging, and ultimately doomed approach. Instead, policymakers should adopt a new public policy framework that regulates along horizontal network layers, rather than legacy vertical silos. Market Reality: Horizontal Networks (Layers) For decades, packet-switched data communications networks have been constructed around several fundamental organizing principles, including the "protocol layering" concept (networks employ different functional rules, or protocols, arranged in layered stacks) and the "end-to-end network" concept (dumb networks support intelligent applications). Together, protocol layering and end-to-end principles have become the building blocks of the Internet. In the resulting layered protocol stack, the IP resides in the "middle" logical layers, with physical network facilities at layers below and user applications and content at layers above. As technology has evolved, existing networks and markets have begun converging to common IP platforms. Key inherent aspects of this IP-centric New World Order include blurred distinctions between services, lack of relevant geographic boundaries, and a mesh of virtual interconnected networks. Moreover, this network architecture tends to shape and drive business fundamentals. Legal Legacy: Vertical Rules (Silos)While networks and markets have been evolving towards an all-IP world, the U.S. legal and regulatory framework remains stuck in the past. The Communications Act and implementing rules divide up the landscape based on traditional service, technology, and industry labels, such as ... |
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