A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model
Whitt, Richard S., Federal Communications Law Journal
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
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. …