Law Commons^™

Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo

Daniel Lyons

The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?" The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …

Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo

All Faculty Scholarship

The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?"

The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

All Faculty Scholarship

In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Case Studies In Abandoned Empiricism And The Lack Of Peer Review, Rob M. Frieden

Rob Frieden

In far too many instances, the Federal Communications Commission (“FCC”) engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion …

Incentivize Me!—How Incumbent Carriers In The United States Attempt To Extract Greater Deregulation And Incentives In Exchange For Making Next Generation Network Investments, Rob M. Frieden

Rob Frieden

Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (“NGNs”), particularly if regulations mandate unbundling of services into composite parts, with burdensome interconnection and below market pricing of access by competitors. Both incumbents, prospective market entrants and recent market entrants may seek to tilt the competitive playing field to their advantage typically by securing a regulatory sanction that helps them reduce investment costs, delay having to make an investment, or secure a competitive advantage …

Lies, Damn Lies And Statistics: Developing A Clearer Assessment, Rob M. Frieden

Rob Frieden

Depending on the source one can conclude that United States consumers enjoy access to a robustly competitive and nearly ubiquitous marketplace for inexpensive broadband Internet access, or they suffer the consequences of a tightly concentrated industry offering inferior service at high rates. On one hand, the Federal Communications Commission (“FCC”), the National Telecommunications and Information Administration (“NTIA”) and some sponsored researchers offer a quite sanguine outlook, possibly influenced by their appreciation for the political and public relations dividends in compiling positive results. On the other hand, other statistical compilations and interpretations show the U.S. behind in terms of market penetration …

A Primer On Network Neutrality, Rob M. Frieden

Rob Frieden

This paper will explain the different conceptualizations of network neutrality and why a debate has arisen about whether governments need to establish rules mandating nondiscrimination. The paper will identify what types of price and quality of service discrimination represent legitimate efforts to diversify Internet-mediated services and to satisfy increasingly diverse requirements of content providers and consumers. The paper concludes that while many concerns about network neutrality overstate the potential for harm, ISPs should offer non-neutral services in a fully transparent manner so that regulators can distinguish between actual and induced network congestion as well as other potential harm to content …

Network Neutrality And Its Potential Impact On Next Generation Networks , Rob M. Frieden

Rob Frieden

This paper will examine the network neutrality debate with an eye toward assessing how the Internet will evolve as a major platform for content access and distribution. The paper accepts as necessary and proper many types of price and quality of service discrimination, but also identifies other types of potentially hidden and harmful discrimination. The paper concludes with an identification of best practices in “good” discrimination that should satisfy most network neutrality goals without creating disincentives that might dissuade ISPs from building the infrastructure needed distribution of high bandwidth consuming content such as full motion video.

Advertising And Intermediaries In Provision Of Legal Services: Bates In Retrospect And Prospect, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

The Opacity Of Transparency, Mark Fenster

Mark Fenster