A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model

Article excerpt

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. …