In January 2004, as Voice over Internet Protocol (VoIP) was catching on, I wrote a piece for CNET on “The Metaphysics of VoIP.” I predicted that much of the coming debate over how VoIP should be regulated under the existing legal regime “would be downright metaphysical.”
I pointed out that the dictionary defines metaphysical as: (1) “of or relating to the transcendent or to the reality beyond what is perceptible to the senses;” (2) “supernatural;” or (3) “highly abstract or abstruse.” In the regulatory world, not only philosophers, but lawyers as well, find good-paying work on metaphysical playgrounds.
In another CNET piece, published in October 2004 and titled “Calling for Regulatory Overhaul Bit by Bit,” I called for a new communications law framework that would avoid “highly abstruse techno-functional constructs.” I concluded: “What we need is a new market-oriented regulatory model, not a replacement regime based on another set of techno-functional definitions.”
Regretfully, the discussion draft released in September by the U.S. House Committee on Energy and Commerce is a framework built on techno-functional definitions–classifications of “Broadband Internet Transmission Service” (BITS) providers, VoIP providers, and broadband video providers with attendant regulatory consequences.
Reliance on Techno-Functional Terms
Such an approach lends itself to legislators and regulators fiddling with the techno-functional constructs so as to shape the market to their own policy ends, however well-intentioned. And it leads those who might benefit by manipulating the interpretation of such techno-functional definitions to attempt to do so.
For an example of the first case, look at the broadband video provisions of the discussion draft, which require the provision of certain types of (not-yet-offered) integrated Internet functionalities in order to qualify for streamlined franchising treatment. Do the legislators or regulators or courts really know what consumers will demand in the marketplace, and do they really know what technological capabilities might evolve in the future, absent regulatory constraints, to meet such demand?
Or, for an example of the second case, take the market participants who will seek to qualify for treatment as a BITS provider to gain the accompanying regulatory benefits, or who will seek to disqualify their competitors. Will the dispute over whether a new protocol is a “successor protocol” of the TCP/IP protocol really be anything other than a metaphysical food fight–and one that will almost certainly create ongoing uncertainty and long-running litigation that will impede marketplace development and discourage investment? (Anyone reading this who remembers the FCC’s decade-long struggle to define protocol processing for purposes of drawing the lines between “enhanced” and “basic” services please raise your hand!)
I have great admiration for those who have put in many long hours to produce the discussion draft. It is not easy making sausage on hilltops, especially with a lot of chefs. By virtue of the nature of the process, I believe the discussion draft can be a constructive step in helping to focus the coming legislative debate. Elements of the draft have a commendable deregulatory thrust, putting aside for the moment ambiguities in the language that call into question whether that thrust would, in fact, be realized.
Market-Oriented vs. Metaphyical
If the discussion draft model–what we called the IP-Migration model in our Digital Age Communications Act (DACA) regulatory framework group–is the only basis for moving forward with communications legislation, there are ways to improve on the draft language to diminish the likelihood of unnecessary and unwise regulation. The Commerce Committee’s draft takes a clean version of an IP-Migration model and reimposes some of the old legacy regulation on top of it. See, for example, the Section 104 network neutrality provision governing mandatory “access to bits” or the mandatory entry registration requirements throughout. By definition, it is very difficult for any model based on technology distinctions to establish a deregulatory firewall in today’s fast-changing technological environment.
Compared to the techno-functional approach taken in the discussion draft, the market-oriented model that the DACA Regulatory Framework Proposal released in June presents an attractive, non-techno-functional alternative that deserves renewed attention. It is likely the reform debate will continue well into next year.
We are fortunate now to live in a time in which technological advances and market developments facilitate competition that gives consumers a choice among multiple facilities-based communications providers. In this environment of increasing competition and consumer choice, it is important to take time to reflect and make sure we get the overall fundamental framework right.
Randolph J. May ([email protected]) is a senior fellow and director of communications studies at The Progress & Freedom Foundation.