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First Principles for an Effective Rewrite of the Telecommunications Act of 1996


Jonathan Nuechterlein


Wilmer Cutler Pickering Hale and Dorr LLP

Phil Weiser


University of Colorado Law School

March 2005

AEI-Brookings Joint Center Working Paper No. 05-03

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.

Number of Pages in PDF File: 43

Keywords: telecommunications, act,1996, internet, overhaul

JEL Classification: H00

working papers series


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Date posted: April 19, 2005  

Suggested Citation

Nuechterlein, Jonathan and Weiser, Phil, First Principles for an Effective Rewrite of the Telecommunications Act of 1996 (March 2005). AEI-Brookings Joint Center Working Paper No. 05-03. Available at SSRN: http://ssrn.com/abstract=707124 or http://dx.doi.org/10.2139/ssrn.707124

Contact Information

Jonathan Nuechterlein
Wilmer Cutler Pickering Hale and Dorr LLP ( email )
2445 M Street, N.W.
Washington, DC 20037
United States
Phil Weiser (Contact Author)
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States

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