I’ve posted my draft paper, Higher Standards: Regulation in the Network Age (Harvard Journal of Law & Technology, forthcoming 2009) to the SSRN online repository.Â Here’s the abstract:
As digital networks proliferate, standardized interfaces will define the economic and normative dynamics of markets. In other words, standardization is regulation. Regulatory mechanisms must evolve to emulate the best aspects of the standard-setting process. The Federal Communications Commission (FCC) should remake itself as a standards organization. Instead of viewing standardization as peripheral to its core mission, the FCC should catalyze adoption of open standards that promote its regulatory objectives.
A standards-based approach offers better solutions to the novel issues the FCC now faces, such as network management practices of broadband access providers and unlicensed wireless devices adjacent to broadcast television frequencies. Scholars have begun to appreciate the importance of technical standards in regulating the behavior of communications and information technology firms. However, they have only considered possibilities in which government either subsumes or defers to private standards-setting bodies. This article shows how regulators can see themselves as participants in the standards marketplace. Such an approach will allow the FCC to provide necessary “safe harbors” for development of technical solutions to important public policy disputes.
Needless to say, these are my own views and not those of the FCC or the Obama Transition Team, although my perspective is certainly influenced by what I saw during the Transition.Â I welcome your comments and suggestions.