Off the Hook

The draft of my law review article, Off the Hook (Cornell Law Review, forthcoming 2010), is now available on the SSRN online repository.  This piece represents my attempt to provide a legal sound foundation for FCC Internet policy.  Here’s the abstract:

Communications networks are the basic infrastructure of the digital age. The future of news, business, interaction, entertainment, health care, education, and many other areas will be built on top of these platforms. Network infrastructure is the dividing line between the old physical economy of scarcity and the new information economy of abundance. The legal framework for networks will therefore shape not only the telecommunications businesses that provide connectivity, but also the applications, services, content, and user activities that depend on it.

Unfortunately, communications networks are entering a vast legal grey area. As telecommunications and media converge into the Internet, they are escaping from the regulatory frameworks of the Communications Act of 1934. In its effort to engage the Internet, the Federal Communications Commission (FCC), the regulatory agency responsible for communications, has backed its way into a dead-end statutory theory that provides insufficient basis for effective regulation.

The solution lies within the Communications Act itself, but not where the FCC and others have been looking. The essential requirement for a flourishing network infrastructure platform is open interconnection. By locating its authority to regulate the Internet in its obligations to oversee interconnection under Title II of the Communications Act, the FCC could reorient communications law for the challenges of a new era.

As always, I welcome comments and feedback.  If, as I suspect, the FCC loses the court challenge to its Comcast P2P decision last summer, it’s going to need another legal theory to support pro-competitive and pro-innovation policymaking for broadband.  Even if the Comcast order is upheld, it’s a pretty thin reed to bear the weight of FCC Internet policy.

For years, I’ve been saying that the Net is the future of telecom.  It’s rapidly becoming the present.  We need a legal regime that takes convergence as a given, not some exotic shock.  As I explain in the paper, neither Congress nor the antitrust courts are likely to address the key challenges.  The FCC actually has expansive authority to adopt open access rules for broadband and related services, but it needs a solid legal theory to support it.