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Abstract:
Antitrust law and telecommunications regulation have long adopted different stances on whether to mandate open access to information platforms. This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in evaluating this basic policy choice, suggesting how they can be integrated in an effective manner. In particular, the authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms and facilitate a true convergence between antitrust and regulatory policy.

Abstract:
In Verizon v. Trinko, the Supreme Court set forth a new stance toward antitrust oversight of regulated industries. As this Article discusses, the particulars of that stance remain open for debate and are likely to generate considerable disagreement. Notably, an ambitious reading of Trinko suggests that courts should avoid evaluating antitrust claims where a regulatory agency is empowered to oversee the conduct at issue. This Article, by contrast, calls for a less ambitious application of Trinko's rule of antitrust restraint. In particular, it explains that antitrust courts should make discretionary judgments about whether the effectiveness of regulation in a given set of circumstances renders antitrust oversight unnecessary. By so doing, antitrust courts would defer to regulatory agencies only where those agencies are reasonably capable of managing the competition policy matter at issue. If antitrust courts opt for a broader rule of restraint, such a stance would only fuel an unfortunate trend of devaluing the role of antitrust oversight and overly valuing the capabilities of alternative institutional actors. Rather than adopt that stance, antitrust courts should evaluate what revisions to legal doctrine and procedural practices can best evaluate claims that antitrust courts might otherwise seek to dismiss under Trinko.

Antitrust, Regulation, Trinko

Abstract:
The challenge for policymakers evaluating calls to institute some form of network neutrality regulation is to bring reasoned analysis to bear on a topic that continues to generate more heat than light and that many telecommunications companies appear to believe will just fade away. Over the fall of 2007, the hopes of broadband providers that broadband networks could escape any form of regulatory oversight were dealt a blow when it was revealed that Comcast had degraded the experience of some users of Bittorent (a peer-to-peer application) and engaged in an undisclosed form of network management. This incident, as well as the polarized debate that followed it, underscores the need to reframe the policy and academic debate over broadband regulation and begin evaluating a blueprint for a next generation regulatory strategy that will focus on promoting innovation in the network itself and by applications developers. This Article seeks to do just that.

This Article begins by explaining how the debate over network neutrality has all-too-often presented polarized perspectives and slogans where more nuanced analysis is called for. As Internet pioneer David Clark commented on the network neutrality debate, [m]ost of what we have seen so far (in my opinion) either greatly overreaches, or is so vague as to be nothing but a lawyer's employment act. As the Article explains, any effort by Congress to develop a well-specified response to network neutrality concerns would be premature, as the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) should first be afforded an opportunity to develop an effective consumer protection and competition policy strategy.

As the Article explains, the FTC has an important opportunity - and indeed a responsibility - to develop and implement a consumer protection strategy in this area, calling for effective disclosure of broadband terms of service and the enforcement of the commitments made in those policies. Moreover, as to the relevant competition policy issues, the Article calls on either the FTC or the FCC (or both) to develop and implement an effective institutional strategy to guard against anticompetitive refusals to provide access to quality of service assurances. In short, the appropriate response to network neutrality concerns is not to ban such quality of service assurances altogether - as that would stifle the Internet's development - but to ensure that the offering of such assurances is not used to injure competition and harm consumers.

network neutrality, Internet policy, broadband

Abstract:
This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead of a property rule. Notably, where injunctive relief cannot be confined to protecting the underlying right, the availability of such relief can give rise to a "holdup strategy," whereby a firm threatens or uses litigation to obtain a settlement significantly in excess of any harm it suffers. Such strategies, as the Article explains, arise in a variety of technology law contexts, including patent law, digital copyright cases, and spectrum regulation. Depending on the particulars of the context, either courts or agencies should superintend the relevant liability regime and, in some cases, the administrative challenges may undermine the case for a liability rule at all. Unfortunately, legal scholars have generally focused on the substantive debate as to the proper scope of property rights - often arguing for an all or nothing solution - at the expense of evaluating the institutional considerations as to whether and when courts or agencies can superintend a liability regime in lieu of a property right.

Law and Economics, Intellectual Property, Cyberlaw, Telecommunications Regulation

Abstract:
The FCC is now facing a set of issues that will help shape the future evolution of the Internet and the role of government in its development. In particular, the FCC is in the midst of designing a regulatory regime for broadband platforms. To do so, the FCC must decide both on the appropriate regulatory classification for such platforms and what legal rules (if any) should govern access to such platforms. This Article explains how the FCC, using its "ancillary jurisdiction" authority under Title I of the Communications Act, can develop a reactive regulatory regime that examines allegations of discriminatory access based on a factual record through complaint proceedings. This approach envisions that the FCC would not follow the prescriptive model of regulation (such as that provided by common carrier regulation), but instead would develop a common law, "antitrust-like" model that would focus on competition policy concerns that actually arise.

Computer Inquiries, broadband, Title I authority, FCC

Abstract:
On the views of almost all commentators, the primary obstacle to recognizing property rights in spectrum is either a lack of economic sophistication or political will by the relevant policymakers. To such commentators, the FCC (or a court) could simply enforce property rights at the geographic boundary of a coverage area as well as at the boundaries (or edges) of different frequency bands. On such a view, if a spectrum licensee did not respect such boundaries - i.e., trespassed onto a neighboring geographic area or frequency band - the FCC (or a court) should issue an injunction to prevent such conduct.

This paper explains that the transition to a property rights model for spectrum is far more complex than commonly portrayed. First, unlike real property, radio spectrum does not allow for clear boundaries, as radio waves propagate in varying ways depending on a variety of circumstances and practical filtering constraints prevent total isolation between adjacent frequency bands. Second, if property rights are granted in a manner that would allow injunctions for trespass, it is quite possible that parties could bring actions solely to threaten an injunction and obtain a license along the lines of the much-criticized patent trolls. Finally, and most significantly, any workable system of property rights will need to rely on (at least to some degree) the predictive models - i.e., statistical predictions as to how often interference is likely to occur - that generally govern how spectrum is used today. Notably, any such reliance begs the question of how such models will be integrated into an enforcement system and with the reality of whether interference is actually present.

We do not have all of the answers worked out for how a property rights system for spectrum would work in practice. We do, however, believe that the overly simple assumptions underlying the claims of most property rights advocates could lead to unfortunate results and unintended consequences. To avoid such results, commentators - particularly those integrating technological, economic, and legal expertise - need to engage on the merits of a critically important policy challenge. Although we do not yet grasp all of the particulars of the ideal model for property rights in spectrum, we do believe that it will look quite different from its real property counterpart to which it is often inaccurately compared.

Spectrum, telecommunications policy, property rights

Abstract:
One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives for parties to cheat on the rules that prevent tragedy of the commons-type results, some cheaters are likely to emerge and thereby undermine the promise of new and innovative technologies that use unlicensed spectrum.

Although the threat posed by cheaters does not undermine completely the commons model of spectrum management, it does underscore that the proponents of that model have focused almost entirely on one half of the issue. To date, these proponents have argued that unlicensed bands can facilitate technological innovation and more efficient uses of spectrum than would a purely private property-like approach. But they have not explained what the FCC should do to prevent deviation from the protocols (or certified equipment) that maximize the effectiveness of shared uses of spectrum. Moreover, tragedy of the commons-type concerns are not merely theoretical ones, as the experience with the citizen's band (CB) radio demonstrated how interference caused by unauthorized uses (such as amplifiers) can undermine a previously popular use of spectrum. In the current environment, technologies like a Wi-Fi Hog, which can take control of and fully exploit a public wi-fi network - or malicious jamming by hackers - pose the same danger.

This paper both underscores the need for and develops the analytical framework to guide a new model of spectrum policy for unlicensed bands. In particular, it argues that the FCC should develop a regulatory program that integrates the efforts of end user groups, interested companies, private standard setting bodies, and its own enforcement tools. In one incarnation of this approach, the FCC can ask a private body (such as the IEEE) to report back on its progress in addressing a particular issue - understanding that it may have to pick up where the body left off (either in setting or enforcing the interference mitigation measure). To be sure, we recognize that this spectrum management strategy will require considerable effort to implement, but we believe that a failure to address these issues would be the Achilles' heel of the commons model of spectrum management.

Telecommunications regulation, spectrum policy, cyberlaw, administrative law, property law

Abstract:
The stance of antitrust oversight of standard setting activities remains a work-in-progress. Over time, antitrust authorities have grown increasingly hospitable to cooperative standard setting efforts whereby jointly developed standards will facilitate the development of new products or services. In the information industries, such standards are ubiquitous and, moreover, are set by international standard setting organizations (SSOs) like the Internet Engineering Task Force (IETF). To be successful, SSOs must develop strategies to prevent firms from patenting technologies used in official standards and charging exorbitant royalties once a standard is adopted. In particular, SSOs face a range of options in terms of policies that govern the use of patents in official standards - even within the popular strategy of mandating reasonable and non-discriminatory (RAND) access to patents necessary to practice a standard. With multi-jurisdictional oversight of SSOs, the role of antitrust law - if inconsistent and overly aggressive - could be counterproductive.

This paper argues that international antitrust authorities should be humble about second guessing policies of standard setting bodies related to patent policies or playing an aggressive enforcement role. By so doing, antitrust authorities will signal to standard setting bodies that they must rely fundamentally on their own strategies for ensuring compliance with their own policies. Such policies, for example, could include a mandate that firms disclose the relevant licensing terms and conditions before the body decides to endorse a particular technology as part of a standard. To be sure, there is still a role for antitrust authorities to sanction egregious abuses of the standard setting process, such as the Federal Trade Commission's action in Rambus, but such actions should be exceptional and not viewed as an alternative to a standard setting body's safeguards against abuses by firms that obtain patents on technologies necessary to practice the standard.

antitrust, globalization, standards, standard setting

Abstract:
Policymakers are at a precipice with regard to Internet regulation. The FCC's self-styled adjudication of the complaint that Comcast had violated the agency's Internet policy principles (requiring reasonable network management, among other things) made clear that the era of the non-regulation of the Internet is over. Equally clear is that the agency has yet to develop a model of regulation for a new era. As explained in this Article, the old models of regulation - reliance on command-and-control regulation and market forces subject only to antitrust law - are doomed to fail in a dynamic environment where cooperation is necessary to effective competition and continued Internet connectivity by a range of actors. Thus, this Article calls for a new model of regulation built around the concept of co-regulation - a self regulatory body subject to public agency oversight and backstop - as the best strategy for Internet regulation going forward.

This Article outlines a three-part strategy for the FCC - or any other agency authorized to oversee Internet providers - to oversee Internet connectivity disputes such as those involving network management practices by broadband providers or Internet backbone interconnection. First, it calls on the FCC to act as a norm entrepreneur, identifying areas where cooperation is essential and setting forth the broad terms that should govern that cooperation. Second, it explains how the FCC could use a model of co-regulation, with a private sector collaborative body operating under its oversight. Third, it recommends that the FCC should exercise ex post adjudicative authority (rather than ex ante rulemaking authority) - in tandem with the role played by the private body - to address breakdowns in cooperation and any departures from announced norms. This model, while of particular relevance to the future of Internet regulation, can be applied more broadly, thereby meriting the attention of policymakers and scholars interested in the future of the administrative state.

network neutrality, network management, Internet policy, FCC, self-regulation, co-regulation

Abstract:
Paul Starr's The Creation of the Media presents modern policymakers with an important opportunity to consider the historical lessons of the telecommunications industry. This Book Review underscores how Starr's book richly explains some key components of U.S. information policy - such as relying on an integrated strategy of intellectual property, antitrust law, and telecommunications policy - and that some historical lessons are misplaced as to today's environment - such as a categorical skepticism of vertical integration. Moreover, Starr's account of telecommunications history explains that the U.S.'s success in promoting innovation in the information industries reflects our reluctance to manage key industry segments through government bureaucracies and our ability to develop an appropriate regulatory model for an era of monopolies. As we move into a new technological environment, however, we need to move away from the classic regulatory prescriptions of cradle-to-grave common carriage regulation and regulating what programs broadcasters must provide to their viewers. Rather, as the Book Review highlights, policymakers need to develop a next generation regulatory regime that learns the correct lessons from history and economic learning to meet the challenges of the Internet age.

telecommunications regulation, cyberlaw, media policy

Abstract:
The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for land, they can work well for spectrum rights as well. But as we explain, spectrum is not the same as land, and a poorly designed property rights regime for spectrum might even be worse than the legacy model of spectrum regulation.

This Article addresses three central questions that confront the design and implementation of property rights in spectrum. First, it suggests how policymakers must develop a set of rights and remedies around spectrum property rights that reflect the fact that radio signals defy boundaries and can propagate in unpredictable ways. In particular, if policymakers simply created rights in spectrum and enforced them like rights in land (i.e., with injunctions for trespass), they would invite strategic behavior: spectrum speculators would buy licenses for the sole purpose of suing other licensees when their transmission systems created interference outside the permissible boundary (i.e., act as spectrum trolls). Second, it rejects the suggestion that policymakers establish a unitary property right for spectrum, arguing that policymakers should zone the spectrum by establishing different levels of protection against interference (i.e., an ability to transmit signals with more latitude) in different frequency bands. Finally, this Article discusses what institutional strategy will best facilitate the development of the property right and its enforcement, concluding that an administrative agency - be it a new one or a reformed FCC - is better positioned than a court to develop and enforce the rules governing the use of spectrum so as to facilitate technological progress and prevent parties with antiquated equipment from objecting to more efficient uses of spectrum.

spectrum policy, property rights, Coase, telecommunications regulation

Abstract:
In the aftermath of Hurricane Katrina, a unitary reliance on Land Mobile Radio systems (LMRs) failed public safety agencies, leaving them without any source of communications once they lost transmission capability. Unfortunately, in the wake of this tragedy, many have dusted off traditional prescriptions for improving public safety communications, such as more dedicated spectrum and more money for single-purpose LMRs (or LMRs based on technology that fails to facilitate broader functionalities). As we explain, however, both the needs underscored by Katrina and the capabilities made possible by emerging technologies call for a different strategy.

In this paper, we argue that sound policy favors adoption of a next generation flexible architecture strategy for public safety communications. Such a flexible architecture embraces technological convergence and, accordingly, strives to coordinate existing LMRs, commercial terrestrial services, satellite technology, and wireless broadband systems to provide a robust, reliable, secure, and interoperable broadband communications system. Additionally, this approach would take advantage of "multi-mode" radios which are already a reality in most segments of the marketplace (except for public safety). Such multi-mode radios are expected to be even more robust once the recently authorized "ancillary terrestrial component" (ATC) of mobile satellite services becomes an option for public safety agencies.

Notably, the flexible architecture that we advocate does not necessarily require additional spectrum dedicated for public safety agencies nor prohibitive financial investment in the equipment needed to use spectrum effectively. Rather, public safety agencies can leverage networks provided by commercial providers - particularly hybrid satellite and terrestrial systems - to satisfy many public safety needs in a cost-effective fashion. To advance this vision, policymakers should ensure that (1) satellite and terrestrial providers are afforded the opportunity - through pro-market and innovative spectrum policies - to develop effective offerings for public safety agencies; and (2) public safety agencies receive sufficient financial support to promote this type of a hybrid, next generation architecture.

public safety, telecommunications regulation, spectrum policy

Abstract:
Most debates over the structure of merger review in the telecommunications industry focus on the criticism that the role of the Federal Communications Commission (FCC) is entirely redundant in light of the review conducted by the antitrust agencies. The FCC's lack of a consistently applied standard only reinforces such criticisms. There are, however, cases where the FCC's review of a merger - and imposition of conditions that complement the existing regulatory regime - enable the antitrust agencies to clear mergers that would otherwise pose potential objections.

The central challenge for competition policy merger review is to structure the analysis of merger remedies so that the antitrust agencies play an effective and central role, with regulatory agencies complementing - as opposed to overlapping or contradicting - their judgments. At present, the U.S. system sometimes veers towards a worst case scenario where federal antitrust authorities - the FTC and DOJ - impose regulatory remedies that overlap with regulatory policy and regulatory agencies perform duplicative merger reviews and impose remedies unrelated to the mergers themselves. Moreover, antitrust merger remedies themselves are often not developed through a transparent, consistent, or predictable process. In short, there is compelling need for institutional reform of antitrust merger remedies in general and in particular with respect to how the FCC oversees mergers between telecommunications companies.

This article proposes a series of reforms to address the fact that the antitrust agencies and the FCC operate with a high degree of informality, periodic inconsistency, and a questionable allocation of authority between them. In particular, it proposes a set of reforms to cabin the authority of the FCC, limit the antitrust agencies' imposition of regulatory relief pursuant to merger reviews in the telecommunications industry, and to ensure a more transparent and defensible strategy for merger remedies by the antitrust agencies.

mergers, antitrust, administrative law, telecommunications

Abstract:
Antitrust law confronted the challenges of regulating interoperability between platforms and applications in both the AT&T and Microsoft cases, but it has yet to mine the series of lessons that can inform how to address this challenge going forward. With the Microsoft consent decree still in place, it may too soon to render a final judgment on the remedy adopted in that case as well as to evaluate more generally whether antitrust law is up to the task of developing the institutional strategies - be it the use of technical committees or reliance on standard setting bodies - for addressing interoperability concerns that are likely to increasingly arise in the information-based economy. Nonetheless, policymakers focused on the interoperability issue need to begin evaluating the possibilities and limits of antitrust law in this context.

This Article argues that the effort to promote interoperability through antitrust oversight must grapple with a twin set of challenges. First, it must appreciate how standard setting bodies operate and how to bolster their effectiveness through appropriate government support and antitrust law oversight. Second, it must evaluate the comparative institutional competence of the available institutions that might play a role in different remedial strategies. If courts and enforcers can exercise increased creativity and develop effective remedial strategies, antitrust law can play an important role in avoiding the type of regulation that has generally governed network industries of critical importance to the economy. To be sure, it may be the case that regulating interoperability requires a regulatory authority to oversee the terms of access (as was the case in AT&T), but there are significant costs associated with moving towards an increased reliance on such authorities. Consequently, it is critically important that antitrust law - along with other institutions, such as standard setting bodies - grapple with the question of how to ensure effective oversight regarding access to a platform in a technologically dynamic environment.

antitrust law, microsoft, AT&T, interoperability

Abstract:
The increasing centrality of the Internet in modern communications, together with massive changes in the landscape of the telecommunications market, have intensified the calls for Congress to overhaul the Telecommunications Act of 1996. In this paper, we analyze this looming legislative challenge by dividing it into two sets of issues: first, issues concerning the proper substance of telecommunications policy reform; and, second, issues concerning the appropriate institutions for carrying out that reform. In Part I, we argue that Congress should require regulators to adhere more closely to (and justify departures from) basic antitrust principles in developing the substance of competition policy. In particular, we explore how those principles would have brought greater predictability and analytical rigor to the FCC's implementation of statutory provisions requiring incumbent telephone providers to lease parts of their networks to competitors. Moreover, we explain how antitrust principles can now inform the current debate over whether to regulate broadband platforms to prevent discrimination against independent providers of applications like voice over Internet protocol.

In Part II, we turn to Congress's institutional choices in reforming telecommunications regulation. Despite our advocacy for antitrust-oriented rules of decision, we argue for a continued reliance on the FCC, rather than antitrust courts, as the appropriate institution for superintending the efficient development of competition throughout the industry. Not only does the FCC enjoy specialized expertise in the economics and technology of the telecommunications industry, it also enjoys a distinct advantage over courts in developing and enforcing complicated - and necessary - prescriptive rules, such as those governing interconnection and its associated intercarrier fees. At the same time, the FCC will increasingly need to refocus its energies from prescriptive regulation to a new emphasis on after-the-fact enforcement and market-monitoring, much like the role played today by the Federal Trade Commission.

telecommunications, act,1996, internet, overhaul

Abstract:
ITIF President Rob Atkinson and University of Colorado Professor of Law and Telecommunications Phil Weiser argue that the current state of the network neutrality debate denies the reasonable concerns articulated by each side and obscures the contours of a sensible solution. They outline those concerns, as well as the claims made by both sides that they believe are not factually correct or economically supportable. They then propose a three-part, "third-way" solution that allows incumbent broadband providers to offer managed broadband services, provided that they also offer a basic and growing open, non-discriminatory "best-efforts" Internet pipe to broadband consumers.

information technology, public policy

Abstract:
Legal scholars have long recognized the importance of the modern administrative state, focusing intently both on the substance of regulatory law and the process of administrative law. Neither focus, however, recognizes the importance of institutional design and institutional processes as determinants of the nature and shape of administrative regulation. The era of neglect towards institutional analysis by both scholars and policymakers may well be on its last legs, as it is increasingly clear that the institutional processes used by regulatory agencies - including when to act by rulemaking as opposed to by adjudication, how to engage the public, and how to collect and share data relevant to policymaking - greatly shape the substantive outcomes of important regulatory proceedings. The emerging question will be how best to study institutional process and create a new direction for administrative law scholarship.

The Federal Communications Commission (FCC) represents an ideal case study to underscore the importance of institutional analysis. Over the last fifty years, the agency has confronted a regular set of criticisms about its reliance on ex parte communications, its lack of data-driven decision-making, and its tendency to act in an ad hoc manner. Nonetheless, the importance of reforming the agency has not risen to the top of the scholarly or public agenda - until recently. In the wake of a series of high-profile criticisms of how the agency operates, the question is now finally shifting to how - and not whether - to reform that agency's institutional processes. This Article highlights the importance of asking that question, explaining how the FCC operates in dysfunctional ways, how it can be reformed, and why this case study highlights an important new frontier for administrative law scholarship.

FCC Reform, Administrative Law

Abstract:
In its rules for the auction of 700 MHz spectrum freed up as a result of the digital transition, the FCC has embraced the concept of a private/public partnership as an important step towards the development of a nationwide interoperable broadband communications network for public safety. For this effort to move forward successfully, however, policymakers must have realistic expectations about the time and effort it will take to implement it effectively. In particular, as the Article explains, there are notable challenges in developing a new policy direction that will transition public safety agencies from their current reliance on antiquated equipment that they own to one where they will become smart users of advanced information and communications technology provided by commercial vendors.

This Article highlights the critical challenges facing policymakers as they seek to facilitate the development of a nationwide interoperable broadband communications network for public safety. Notably, it sets forth the necessary technological changes in some detail, explaining the evolution of modern public safety communications systems and their attendant technological and operational limitations as well as the technological requirements, architecture, and possible constraints associated with a next generation network. It also highlights the strategies available to policymakers - the government as contractor model and the public safety spectrum licensee model - as means of spurring this transition. In so doing, it outlines the critical steps necessary to manage the transition to a new technological architecture, including the challenges of working within the current technological framework, building a sustainable funding base, and establishing clear requirements and standards for an next generation architecture. In short, the Article provides important guidance on the transition to an next generation network for public safety and also highlights critical governance, technological, and regulatory challenges that must be surmounted to make that transition a success.

public safety, spectrum policy, interoperability, homeland security

Abstract:
The suboptimal state of communications technology used by public safety agencies has emerged as a high profile political issue. In most cases, public safety agencies are able only to communicate using antiquated networks, engineered solely for providing voice communications and unable to interoperate beyond a select number of users. This type of system fails to provide the type of economies of scale, network flexibility, or the broader functionalities routinely used by the military and private sector enterprises. The challenge facing policymakers is thus how to develop a next generation architecture for public safety and spur adoption of a new set of technologies that provide far greater functionality than today's systems as well as interoperate with a broad array of organizations involved in emergency response.

To change the culture and realities of public safety communications, this Article calls on policymakers to develop a new architecture for the use of information and communications technologies and provide a framework for leadership to transition to a next generation system for public safety communications. Such a culture change would include not only an embrace of new technologies, but a new framework for technology leadership - at the state or regional level - that spurs decisionmaking in a coordinated fashion (and not through ad hoc decisions by over 50,000 different local agencies). In short, this Article explains what new technologies can transform public safety communications and what intergovernmental relations strategy will be necessary to facilitate the implementation of such technologies.

public safety communications

Abstract:
"Network neutrality" encompasses a wide-ranging debate over what limits, if any, should be placed on network providers in pricing or managing Internet traffic. The articles in this volume tackle various aspects of this debate: Have other transportation networks been truly "neutral"? Should broadband providers be allowed to charge content providers for connecting with end users? How much price discrimination is appropriate and is it confined to network operators? How large are the potential costs of constraining traffic management practices? What are the tradeoffs from mandated loop unbundling to deter discrimination and what market power threshold justifies interventions?

Net Neutrality, Internet, ISP, Discrimination

Abstract:
When considering the merits of deliberative democracy, it is important to look to the experience of the American jury system. The jury has demonstrated the potential for citizen deliberation to play a central role in longstanding governmental institutions, but it has also played an unrecognized role in promoting civic engagement. Building on previous research demonstrating how jury service spurs increased electoral participation after jury service, we present results from a three-wave panel survey that show that a subjectively rewarding jury experience can spur broader civic engagement beyond voting. Given the value of the jury as both a model of deliberation and an engine of civic spirit, we consider the potential value of creating citizen juries to improve the initiative process, which currently lacks the citizen deliberation that is essential for any effective direct democratic processes.

Jury Service, Deliberation, Initiatives and Referenda

Abstract:
As described in Ronald Coase's seminal 1959 paper, property-like rights in electromagnetic spectrum and a secondary market for spectrum licenses will allocate spectrum to its highest and best uses, to the benefit of telecommunications consumers. However, defining rights to use spectrum is far more difficult than ordinarily suggested. More careful analysis is needed to determine what type of property regime will operate effectively to govern rights in spectrum. A number of questions must be answered for a transition to a property rights regime to be successful.

Cato, Dale Hatfield, Phil Weiser, property rights, electromagnetic spectrum, Ronald Coase, telecommunications, spectrum allocation, analysis

Abstract:
This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical appeal during the initial stages of communications reform. Even in instituting a single overarching federal framework, the recommended regulatory regime does involve state agencies in a number of important ways.

The paradigm that largely guides the recommended framework is a model of cooperative federalism. Under that model (which some working group members embraced only in part), the federal government retains overarching authority in the matters of rate regulation, competition policy adjudication, and consumer protection. To different degrees in each area, the DACA model envisions a role for state agencies to experiment and implement federal policies. Thus, in the consumer protection area, where the comparative federal competence is weakest, the states would have the greatest degree of flexibility. That flexibility, however, would still be governed by a unitary federal framework, ensuring that this model would end the wasteful jurisdictional squabbling that has characterized telecommunications regulation since its inception.

telecommunications regulation, federalism, administrative law

Abstract:
Antitrust courts have long struggled to identify tractable principles to guide the implementation of access remedies. This Article evaluates the proper course of action related to antitrust oversight in the wake of the Telecommunications Act of 1996, explaining that antitrust law can and should evaluate the impact of purportedly anticompetitive conduct. In so doing, however, it should be mindful of the institutional limitations of antitrust courts in superintending access remedies. In particular, antitrust courts that find a violation should rely on regulatory agencies to manage conduct remedies which, while necessary to address competitive concerns, are beyond the competence of antitrust courts to implement.

antitrust law, telecommunications regulation, Trinko

Abstract:
The success of airline deregulation challenged the claims of public choice theory, which asserts that regulation serves the purposes of the regulated firms themselves. One prominent explanation for airline deregulation is that "political entrepreneurs" can, under certain circumstances, challenge the status quo. Nonetheless, commentators have failed to examine how Fred Kahn fits the model of a political entrepreneur. By examining Kahn's success as a political entrepreneur, this Essay highlights how commentators and policymakers can gain important insights into how to spur regulatory reform and oversee regulatory reform efforts like that necessary to modernize our system of spectrum management.

Alfred Kahn, Civil Aeronautics Board, CAB, political entrepreneur, spectrum policy, public choice theory

Abstract:
Our nation's 9-1-1 system's success to date belies the fact that its core premises will not continue to serve it effectively and it has come to a critical juncture. In particular, the balkanized nature of 9-1-1 operations that differ across jurisdictions and are supported by Byzantine funding mechanisms obscure a simple but profound development: our nation's emergency system is not keeping up with or taking advantage of technological change. Because the system continues to work and policymakers largely do not appreciate the system's technological limitations, decision makers not only fail to focus on this challenge but instead are all too willing to raid 9-1-1 funds to put them to other uses. Accordingly, our emergency communications networks are unable to accommodate what is increasingly viewed as basic functionality inherent in many of today's advanced technologies.

This Article sets forth a coherent vision concerning the opportunity to transition to a next generation 9-1-1 network. To be sure, the United States' 9-1-1 system is hardly a monolith and prescriptions for its evolution cannot be reduced to simple one size fits all solutions. In practice, the system is comprised of numerous jurisdictions (including over 6000 Public Safety Answering Points); myriad governance structures and controls which vary across jurisdictions; a ballooning number of service providers; and a diversity of funding amounts and models that differ across jurisdictional boundaries. The result, not surprisingly, is a fractured and complicated system where policy is highly contingent on parochial and often political perspectives.

To reform today's balkanized 9-1-1 landscape, we recommend that: (1) clear leadership and vision embrace the need to transition the 9-1-1 system to a next generation architecture; (2) more effective state oversight provide both the funding and logistical support necessary to make this happen; and (3) localities should remain responsible for providing access to 9-1-1, but that they must be supported from higher levels of government as well as industry to exercise that responsibility. In short, there is an important opportunity for thoughtful leadership and vigilant policy reform that will serve the goals of 9-1-1 emergency response far more effectively than the policies currently in place.

telecommunications regulation, public safety, 9-1-1

Abstract:
The participation hypothesis holds that when people undertake one civic activity, their likelihood of future political participation increases. This paper reports on three original studies that test this hypothesis by linking the non-voluntary, institutionalized activity of jury deliberation with future electoral participation. First, twelve in-depth interviews with recent jurors demonstrate that people can conceptualize jury deliberation and voting as related responsibilities. Second, a national study of court and voting records demonstrates that criminal jury deliberation experience can significantly increase turnout rates among previously infrequent voters. Third, a survey of jurors demonstrates that both one's objective and subjective experience of jury deliberation influences future voting rates.

jury service, political participation