Creating Effective Broadband Network Regulation
Brenner, Daniel L., Federal Communications Law Journal
I. INTRODUCTION II. Is BROADBAND SUFFICIENTLY COMPETITIVE TO LEAVE NETWORK MANAGEMENT TO MARKET FORCES? A. The FCC and Communications Markets B. The Broadband Network Market Is Less Than Fully Competitive Nationwide III. THE FCC's EXPERIENCE WITH PRESCRIPTIVE RULES BODES POORLY FOR REGULATORY INTERVENTION A. The Origins of Prescriptive Rules--Radio Regulation B. The FCC's Success with Laissez Faire Regulation in Creating New Services 1. Open Skies 2. Direct Broadcast Satellites 3. Competitive Long-Distance and Local-Phone Competition 4. Broadband C. On the Other Hand." The Failure of Prescriptive Ex Ante Network Design 1. Video Dialtone 2. Open Video Systems 3. Advanced Instant Messaging D. Summary IV. DETERMINING "REASONABLE" NETWORK REGULATION Is HARD TO DO IF YOU DO NOT ACTUALLY CONTROL THE NETWORK A. The Problem of Sufficient Information B. The Problem of Devising Solutions to Perceived Network Problems 1. The Computer Inquiry Proceedings 2. Unbundled Network Elements C. The Problem of Technology as an Independent Variable 1. Loss of Innovation at the Physical Network Layer 2. Impeding Innovation at Other Layers V. THE OLD AND NEW INSTITUTIONAL PROBLEMS OF THE FCC A. The Internal and External FCC Resources 1. The Agency's Ability to Understand Networks 2. The Commissioners' Own Expertise B. The Political Economy of the FCC VI. THERE ARE BETTER ALTERNATIVES TO EX ANTE NETWORK REGULATION A. The Problem of Defining the Problem: Ex Ante Regulation and the Use of a Legal Standard B. Antitrust Law C. Standards-Setting and Self-Regulatory Organizations D. Wiki Law: Community Policing as Policy E. Contract Law and Disclosure VII. CONCLUSION
Internet regulation, like the Interact itself, captures the cross currents of the government's decisive intervention and studied indifference. The Internet's early growth was financed with Department of Defense dollars. But before its explosive growth in the late 1990s, Washington cut its purse strings and apron strings from its innovative creation. Congress paid Delphic attention to the Internet in its 1996 rewrite of the nation's communications laws. Most of the Internet focus in that protracted legislation was keeping regulation from harming the growth of broadband, not authorizing regulators to fix what ailed it.
FCC Internet regulation really began in 2005 with the Madison River case. (1) If hard cases make bad law, easy cases provide scant law. Such was the case when the FCC pounced on a decision by Madison River Communications, a yet-to-be-deregulated telephone broadband provider, which blocked a competing Voice over Internet Protocol (VoIP) provider because of the competitor's impact on its legacy wireline phone business. (2) But, for the most part, the FCC stayed away from substantive Internet regulation until its recent efforts to define unacceptable network management by a cable broadband provider, Comcast, and its network neutrality rulemaking. (3) The Federal Trade Commission (FTC) has been cautious on broad rules as well. (4)
The Internet is only going to become more central to the business and pastimes of Americans, and the call for different types of regulation is ongoing, inevitable, and often justified, given the range of Internet protocol (IP), consumer protection, child safety, and anti-deception interests the Web involves. But behind these calls--to expand broadband availability and adoption, and to regulate broadband network providers, in particular-is the assumption that regulation will work well enough to outweigh its costs. Calls for "network neutrality" or "nondiscrimination" assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. …