Deregulating Telecommunications in Internet Time

The Telecommunications Act of 1996 has yielded more litigation and less local competition than its supporters expected or intended. Calls for its reform are multiplying. In this Article, Professor Septa diagnoses the 1996 Act\u27s failings and prescribes a framework for reform. The successful deregulations of the transportation industries and of long-distance telecommunications (precedents the 1996 Act sought to follow) demonstrate that the Act should have taken additional steps to promote intermodal telecommunications competition. Transportation deregulation successfully prompted competition where (as in the case of airlines and trucking) multiple firms could compete on an intramodal basis or where (as in the case of railroads) the single firm was subject to intermodal competition from firms using other technologies. The 1996 Act\u27s reliance on the unbundling of incumbent local telephone companies\u27 networks reveals that its supporters thought that portions of the local wireline networks would remain bottlenecks. The lesson, therefore, is that the 1996 Act should have taken additional steps to create the conditions for intermodal competition. Based on this analysis, Professor Septa outlines a new communications law that increases the possibilities for intermodal competition. Indeed, the glimmers of hope for local competition-cell phone substitution and voiceover- Internet-protocol (VoIP) telephony-are intermodal competitors. Although the 1996 Act did move in this direction and the Federal Communications Commission is vigorous on several fronts, more can be done. Spectrum reform (the most significant missed opportunity in the 1996 Act) and other steps would decrease legal and economic barriers to intermodal competition. The Article also addresses local and state control of telecommunications carriers, regulatory parity, universal service reform, and government funding of research and infrastructure, and it offers a technology-neutral regulatory scheme for VoIP. The proposed deregulatory agenda seeks a law capable of accommodating the speed and diversity of technological change in this Internet time

Deregulating Telecommunications in Internet Time

The Telecommunications Act of 1996 has yielded more litigation and less local competition than its supporters expected or intended. Calls for its reform are multiplying. In this Article, Professor Septa diagnoses the 1996 Act\u27s failings and prescribes a framework for reform. The successful deregulations of the transportation industries and of long-distance telecommunications (precedents the 1996 Act sought to follow) demonstrate that the Act should have taken additional steps to promote intermodal telecommunications competition. Transportation deregulation successfully prompted competition where (as in the case of airlines and trucking) multiple firms could compete on an intramodal basis or where (as in the case of railroads) the single firm was subject to intermodal competition from firms using other technologies. The 1996 Act\u27s reliance on the unbundling of incumbent local telephone companies\u27 networks reveals that its supporters thought that portions of the local wireline networks would remain bottlenecks. The lesson, therefore, is that the 1996 Act should have taken additional steps to create the conditions for intermodal competition. Based on this analysis, Professor Septa outlines a new communications law that increases the possibilities for intermodal competition. Indeed, the glimmers of hope for local competition-cell phone substitution and voiceover- Internet-protocol (VoIP) telephony-are intermodal competitors. Although the 1996 Act did move in this direction and the Federal Communications Commission is vigorous on several fronts, more can be done. Spectrum reform (the most significant missed opportunity in the 1996 Act) and other steps would decrease legal and economic barriers to intermodal competition. The Article also addresses local and state control of telecommunications carriers, regulatory parity, universal service reform, and government funding of research and infrastructure, and it offers a technology-neutral regulatory scheme for VoIP. The proposed deregulatory agenda seeks a law capable of accommodating the speed and diversity of technological change in this Internet time

Boden Lecture: The Past’s Lessons for Today: Can Common-Carrier Principles Make for a Better Internet?

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Supervising Managed Services

Many Internet-access providers simultaneously offer Internet access and other services, such as traditional video channels, video on demand, voice calling, and other emerging services, through a single, converged platform. These other services—which can be called managed services because the carrier offers them only to its subscribers in a manner designed to ensure some quality of service—in many circumstances will compete with services that are offered by unaffiliated parties as applications or services on the Internet. This situation creates an important interaction effect between the domains of Internet access and managed services, an effect that has largely been missing from the decade-long debate over network neutrality rules for Internet service. This Article examines this interaction effect, focusing on the context of online video services and on the recent NBC-Comcast transaction that finally highlighted these concerns. The Article contends that, when these interaction effects are understood, a nondiscrimination rule applied only to a converged carrier\u27s Internet service can be rendered ineffective by the carrier\u27s move to managed services offerings. As a result, a nondiscrimination rule, if it is to be effective, would need to be supplemented by specific behavioral or structural rules that both require the carrier to maintain its Internet service and limit the carrier\u27s freedom of action in the managed services domain. This reveals the difficulty of drafting effective nondiscrimination rules. It also reveals that noneconomic justifications for nondiscrimination rules cannot stand alone; they must be supplemented by the economic-reasoning tools common to antitrust argument, in order to identify and determine the ultimate effects of the rules

Narrowing the Scope of Civil Drug Forfeiture: Section 881, Substantial Connection and the Eighth Amendment

This Note offers two justifications for narrowing the scope of section 881 forfeiture. Part I argues that courts should apply the substantial connection test to section 881 forfeitures. This Part analyzes the statute using the traditional tools of statutory interpretation. While the text of the statute seems to support the broadest possible interpretation, the legislative history and context of adoption suggest that the substantial connection test is consistent with Congressional intent. In amending section 881, subsequent Congresses have favored application of the substantial connection test. Consistent with this narrower reading, present strategy in the war on drugs focuses stiff penalties on principal traffickers; individual users receive significantly more lenient treatment. Part II argues that eighth amendment review should limit section 881 forfeiture. Section II.A argues that section 881 forfeiture, despite its civil label, functions as a criminal punishment to which constitutional protections should be applied. Section II.B argues, in the alternative, that the history of the eighth amendment and recent Supreme Court analysis justifies eighth amendment review in even purely civil cases where the government is the party seeking forfeiture. Finally, Part III engages each of the narrowing processes. First, the substantial connection cases denying forfeiture are harmonized by development of a second-degree facilitation test. Second, this Part identifies the seeds of eighth amendment values in the substantial connection cases. Section III.C suggests the circumstances in and the methods by which courts should apply eighth amendment review to section 881 forfeiture. Applying these eighth amendment principles will protect the rights of claimants without impeding the effort to curtail drug trafficking

Supervising Discrimination: Reflections of the Interstate Commerce Act in the Broadband Debate

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Commentary: Policy Levers and Demand Drivers in Korean Broadband Penetration

The drive to increase broadband penetration has reached a critical policy point in the United States, with President Bush, the Federal Communications Commission, and numerous industry groups all offering new agendas. Naturally, many eyes have turned to Korea, which has been the undisputed world leader in broadband deployment for several years. The United States should consider the benefits of increasing on-line government services as well as the benefits of increasing computer education. These are costly projects to be sure, and so their prospects for adoption are uncertain, but they undeniably increase the attractiveness of broadband and decrease consumer reticence to subscribe. On the other hand, the United States should and probably will maintain its traditional skepticism for more direct market intervention, such as government provision of infrastructure or below-market rate loans to particular companies