At the moment, federal telecommunications policy seems to have no coherent set of goals.  We have complex and separate regulatory structures covering telephony (wired and wireless), broadcasting, cable television and satellites. Although there is no express delegation by Congress to the FCC to regulate the internet, the FCC sometimes imposes heavy-handed rules (E911 and CALEA for VoIP)  and sometimes claims that its chief goal is to be deregulatory. The various policy aims identified by FCC-watchers are sometimes in conflict. Congress spasmodically takes up indecent speech, gambling, spam, spyware, and privacy, among other online topics – without, it seems, an underlying theory that would help prioritize or rationalize regulation. 

Even without a clear goal, these regulatory actions affect outcomes and create controversies about which economic and social benefits should be preferred or can be attained.  We are stumbling forward, tinkering blindly with the greatest value-creation system we have ever seen.

It is clearly time – it is beyond time – for an organizing principle for communications regulation to emerge.  Traditional regulatory silos no longer make sense in this era of digital abundance. Given the advent of smart devices that can avoid interference, spectrum regulation should be substantially loosened over time, and more spectrum opened up for ad hoc uses. Given the abundance of communications available, supporting broadcast content regulation based on a scarcity rationale seems less and less defensible.  Media concentration concerns based on, again, scarcity of megaphones in any given locality seem to defy reality, and strict quota-driven approaches to “diversity” (including must-carry rules for cable systems) are poor proxies for actual encouragement of diversity.  News is coming from all directions and from a multitude of voices.  Telephone regulation is being undermined by the swift advent of online voice services. Aware that explicit authority over the internet is not granted to it in the Telecommunications Act the FCC has moved to assert “ancillary jurisdiction” over everything from devices to online applications.  The unbundling regulations applied to telephony providers in the 1996 Act have been gutted through litigation. Traditional forms of communications modalities – postal mail, the press, entertainment distribution systems, telephony – are gradually melting away because of the emergence of online substitutes.

Given this categorical blurring and increased importance of online communications, whatever organizing principle we seize on for communications regulation should be explicitly calibrated for the internet. 

And given that communications law should be focused on contributing maximum value to society, the key organizing principle for communications law must be to support the emergence of diverse new ideas online – because that is where economic growth for society as a whole will come from. 

This form of diversity support is not the same as the kind of quota-driven artificial “diversity” that has been used to force broadcast content regulation.  Rather, this kind of online diversity stems from allowing the end-to-end, content-neutral, layer-independent functions of the internet to flourish, and allowing human attention to pick and choose from among the bad ideas presented online, enabling good ideas to persist and replicate. 

Think Jane Jacobs diversity.

This principle for future communications regulation – encourage diversity – has immediate practical implications.  The traditional central problem for telecommunications law theorists is the role of the “last mile” or “local loop” connection between an incumbent’s central office and the home of a consumer (or a local business).  With the arrival of high-speed connectivity, this last mile connection is now providing access to a system of human communications that is more capable than any past system of generating the diverse new ideas that will support continued economic growth in this county.  Yet the desires of network providers to control and prioritize access may frustrate this digital engine of diversity.  At the same time, we have not made access to this system of human communications sufficiently universal. 

Universal highspeed access to the internet -- Korea did it by forcing competition through unbundling (including unbundling cable networks!), putting up grant money, funding research, educating huge numbers of users, and making some strategic investments.  That should be our goal here.