III. RECONCEIVING THE INTERNETWORK
A. What Falls Away
The switched telephone network and its accompanying regulatory and business arrangements deserve to die. Their era has passed. However, that does not mean that the idea of a public network has no enduring relevance. (177) To the contrary, some aspects of the PSTN are not tied to the particular technical, legal, or economic conditions that prevailed in 1934 or 1996. There are good economic and public interest reasons to continue treating communications network operators differently than ordinary businesses. The task is therefore to define a regime for today's world that preserves the enduring aspects of the PSTN and jettisons those that are no longer applicable.
In effect, the Internet will become the new PSTN. In the process, however, the Internet has already changed and will continue to do so. As it becomes the default communications infrastructure, the Internet can no longer depend, as it has to date, on access to physical infrastructure regulated as telecommunications. Moreover, public policy considerations such as universal access, interoperability, reliability, privacy, access for persons with disabilities, emergency services, and law enforcement access become questions for Internet-based services. (178) As noted above, the last two decades of communications policy have created largely incompatible regulatory domains for the Internet and the PSTN at the same time as market forces joined them together.
The FCC has taken some steps in this direction in its treatment of VoIP. In a series of proceedings, it extended telecommunications regulation to "interconnected" VoIP providers; that is, those offering the familiar experience of dialing a telephone number on an ordinary phone. 179 Interconnected VoIP providers must now contribute to universal service funding, (180) offer access to E911 emergency service, (181) provide access to law enforcement subject to legitimate wiretaps, (182) accommodate persons with disabilities, (183) adhere to privacy rules for the customer information they use to complete calls, (184) support the ability of existing subscribers to keep their existing telephone numbers when switching services, (185) and report service outages to the Commission. (186)
One problem with the FCC's approach is that it imposed these obligations pursuant to its ancillary authority under Title I of the Communications Act. (187) It thus did not have to decide whether any component of the VoIP offerings was a telecommunications service subject to Title II. In most cases, the FCC justified its actions on the grounds that even if VoIP was an information service, interconnected VoIP calls were likely to pass over the regulated telecommunications networks of the PSTN. (188) If and when those networks themselves move to VoIP, the legal rationale evaporates.
A second problem with the FCC's actions is they are ad hoc. The FCC has not adopted principles for what forms of regulation should remain in the shift from TDM to IP and what may be abandoned. The six dimensions of the PSTN offer a framework for making such decisions. (189) Rules that are rooted in technology, regulatory arrangements, or market structure are likely to be anachronisms that can be abandoned. Those based around universal connectivity, strategic infrastructure, and a social contract retain their significance as the network evolves. (190) The regulatory framework for the PSTN transition should be based on evolving regulatory policies to support these goals in a new environment.
Pulling apart and constituting the PSTN in this way clarifies that two kinds of regulatory initiatives should endure: those involving interconnection and coordination. The first involves rules to ensure the network of networks retains its universal character. The second reflects the persistence of the PSTN as critical and essential infrastructure. Together, they form the nucleus of a new social contract for the emerging IP-based communications environment. …