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Public Interest Telecom Law

Portrait of an Emerging Field  December 2009 - September 2010

As noted above, the material in this issue of the COOK Report is culled from eight months of discussion about a wide range of subjects during a very active year for the law and regulation of networks.  It highlights Erik Cecil’s commentary on the interplay between regulatory activity – and its many failures – and the public interest.

I am struck by similarities between Erik’s commentary and the famous Clue Train Manifesto finished in April 1999.  This is written by someone who is inspired and ahead of the crowd.  It announces that the law and regulation of the Internet belongs in the hands of we the people.  Of civil society.  It cannot and will not be left solely in the hands of government and the corporations that provide networks and content, because inspired regulatory attorneys working for themselves, and not for those corporations or government, will disrobe the cozy little game of regulatory enclosure that deprives the people of the unrestricted benefit of the network tools that they themselves have designed and released.  For example, the outrage within the ‘net community following the deal struck by Verizon and Google behind closed doors shows that even our largest companies can no longer deliver a fait accompli to the regulators and Congress without the people knowing – and reacting.

Little more a decade ago, the cozy system of markets as mechanisms for force-feeding consumers was broken by the Internet, transformed by the realization that markets are now multi-way conversations between customers. And now Erik points out that in the second year of the Obama Administration, another institution of society the FCC has ceded its own authority.

“As a result of a widespread impression that the FCC will promote technological capabilities only upon terms dictated by the largest, most entrenched industry participants, they have ceded the significant moral authority and public trust that so dearly needed to be regained and strengthened following the exit of the Bush Administration, not to mention the significant controversies and Congressional investigations following the previous Chairman’s exit.”  [12/30/2009]

Erik is saying a resounding “NO” to what he views as using the worst of what this system has to offer to preserve the worst of what can be done with technology.  He has found that the “regulations were so mismatched to what you could do with Internet protocol, optical networks and edge-based, open-source, commodity technology, that any benefit you obtained from regulation was more than outweighed by its costs.  As a result, as the Internet developed -- especially from 1996 on – when the ‘96 Act was gradually dismantled, and optical technology became both orders of magnitude more powerful and cheaper, regulation took back what the ‘96 Act gave the people.  It skewed the market.”

"When we got to the point of no regulation and no antitrust, there was no money left in the kitty to go out and do some class action, breach of contract or tort cases, which would have been the natural direction to go to discipline monopoly leveraging of loop (but mostly telco; cableco loop plant isn't all that desirable - it is just not built for collocation and carriage; it is distribution plant struggling to be 2-way and never designed for common carriage).”


COOK Report: The financial crisis has laid the foundation for new forms of public interest law.  We see now a continuation of what enabled me to start The COOK Report almost 20 years ago - tools of entry that are affordable to a single person start up and a field that is open to entry from the edge. 

As Erik Cecil puts it: "there is now – computing, connectivity and things like co-working space, not to mention a wave of solo attorneys who are blazing new trails all over the map.  I hang around with lots of them and am teaming up with them in the ways I used to team up with different types of attorneys in larger firms.” “This method is more fluid, much more unpredictable, and needs a ton of improvement, but economic circumstances are so dire that the cycles of adaptation in those markets are lighting fast - very Darwinist if you buy into Darwin.  So it may prove to be lower cost, though the jury is still out on that; there are a lot of problems to be overcome . . . or it may go the way of some prehistoric shrew that never became top domain predator his genetics once promised.”

“If those hurdles are overcome, however, what you might see is a new form of legal business - smaller, more granular, and new forms of billing and client support that might just open up expert attorneys to more of the public.  Several attempts have been made in that regard, but I think that given the number of experienced attorneys laid off in the downturn coupled with the number of baby boomer attorneys who will retire in the next 5-10 years may indicate that we are in for some new things.”

COOK Report: Another way of looking at what Erik has done is to call it “policy entrepreneurship.” In his approach to public interest telecom law, he has become expert in the area of telecom and Internet technology, economics, business, and law.  He has reached some powerful conclusions about how the world ought to work.  He has articulated these conclusions – passionately, effectively – in places where people who might need his services as an advocate (or be in contact with those who might) will see them.  He then attracts as clients people who understand what his views are and already sense that they are consonant with the interests of their potential advocate.  Another way of saying it:  he gives away free samples of his advocacy and counsel, just like a cookie store will do.  People who like the free cookies are very, very likely to step into the store and actually buy some.

In this context we (Cecil, Savage and Cook) offer the following summation: Regulation in this nation is confused about so many things it is hard to know where to begin.  (1) The assumption that there is such a thing as a “free market” is wrong – government always provides the context for markets.  (2) The assumption that consumers will actually make purchase decisions in a way that will maximize their own happiness is wrong – that’s what behavioral economics teaches us, among other things.  (3) The assumption that the only alternatives are free markets, public ownership, and regulation is wrong – the ability of commonses to form and function is another and in some cases more suitable alternative.  (4) While money shapes the regulatory environment, the assumption that if some regulatory intervention is called for, its goal should be limited to economic considerations is wrong – not everything is reducible to money, and many things matter more than money.

I have known Erik Cecil for almost five years.  For three of those five years, at Level 3, Erik served on a legal team providing comprehensive representation to many different operating groups.  For details see his vita at http://www.linkedin.com/in/erikcecil  He left Level 3 in December 2008 to launch his own practice, Source Law PC in Louisville, Colorado.  He now represents a variety of large and small entities involved in communications networking and related areas.

When I asked Erik to provide an overview of what follows, he wrote:

“The world would be very different had Level 3 been able to just keep building so as to revolutionize the edge of the network as much as they changed the core.  In the space of less than 15 years that company grew from nothing to carrying more than 1/3 of the planet's communications traffic. I am still in awe of that achievement.  Today I remain an outside counsel for Level 3 involved in various actions around the nation.  I am also outside counsel to several other carriers, including but not limited to the nation's 7th largest carrier. These engagements have given me a unique perspective on the telecom industry because, by serving a client who serves so many others (Level 3), as well as serving clients who serve at every aspect and layer of the network, I see all of these problems from multiple vantage points.” 

“My focus in all of this is the imbalances in state and federal regulation,  What I continue to try to solve time and again are the simplest issues of intercarrier operations.  This can be frustrating work at times, particularly when one views the harm done to this nation by such backward-looking regulations as are daily exploited to what I deeply believe is the great detriment of innovation enabled by computers, IP/TDM (and whatever comes next), and fiber optic technologies.  I am passionate in my views, but I believe I am transparently honest.”

Jaap van Till [http://www.vantill.dds.nl/] writes about his concept of Trias Internetica:  “The public is no longer just passively being led by the nation state hierarchy. Neither is it any longer just passively buying the goods and services provided by the big company factories. The assumption that the two poles of State and Market do always know in advance and by planning what’s best for the citizens/consumers is over. The public starts to talk back, demand choice and together demand certain things to be done. In other words they are a power in their own right.” I encourage readers to study carefully the diagram on the next page that illustrates the critical concept on which the emerging field of Public Interest Telecom Law is founded.

In working as a solo practitioner rather than as part of one player’s legal team, Erik can find ways to advance not only his clients’ interests, but also the interests of civil society, as shown at the apex of the triangle below.  Of course he has to support his family, so he is not a “volunteer” in the strict sense of the diagram below.  But what he can do is show his business or government clients how they can transcend or resolve individual conflicts in a way that protects their interests while also protecting those of their customers -- that is to say of civil society.  He also has the opportunity to explain to government that its actions must balance the needs of business and civil society, rather than just serve business.  He has the much needed opportunity to become a mediating force between the two. He can do this in multiple ways, including as he writes below, by educating his clients.  We will return to the ideas at the very end of this lengthy summary of an important new field – Public Interest Telecom Law.

Contents

A Survey of Public Interest Telecom Law                                       4

The Diminishing Relevance of Traditional Regulation                   6

The Role of Google in the Communications Universe                    8

iPad and Common Carriage                                                            10

The Citizens United Case and Transparency                                   12

CenturyLink To Buy Qwest                                                             15

Google Infrastructure is Brilliant                                                     17

Expense of Defining the Industry’s Future in Terms               
of its Regulatory Past                                                                         21

Revive Title II                                                                                    23

National Broadband Plan                                                                   29

The Absense of a CommonLanguage Will Prevent             
Understandingof whatis at Stake - Money                                        21

Replaying the Basic Themes of the Computer Enquiries  Forty
Years Later                                                                                        37

The “Problems” with Title II                                                            42

The Myth of George Ou’s “Myth of Reclassification”                     47

Understanding Google’s Buildout Rationale                                   51

CenturyTel Buys Qwest (Part Two)                                                 56

On Behalf of Open Source or On Behalf of Subsidizing
the Grip of More Than Century Old Technology?                          58

Should Our Goals be Resilient Communities?                                61

FCC Rulemaking on Reclassification: That Is Forcing

Subsidization of 125 Year Old Technology?                                  65

Google-Verizon “Net Neutrality” Framework                               76

Don’t Export Verizon’s Local Loop Economics up the
Protocol Stack                                                                                87

Policy Must Serve Civil Society                                                    98
Summary and Conclusion                                                              99
Editor’s Afterword                                                                        101