A Digital Age Communications Act Paradigm for Federal-State Relations

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.

Keywords: telecommunications regulation, federalism, administrative law

JEL Classification: H77, K23, L50