One lawyer lays out simple guiding principles that could be used to untangle the thicket of rules and regulations that govern telecommunications.

by Alex Goldman ISP-Planet Managing Editor [July 9, 2004]

Like many people, W. Scott McCollough thinks that telecom law is much more complex than it needs to be. But unlike many, he's a telecom lawyer himself. Working on the side of David against Goliath, McCollough has been part of both TISPA and TeleTruth, serving independents and individuals who have been victims of the phone company.

At David Isenberg's Stupidnet conference in April, McCollough laid out principles that could be used to make telecommunications law consistent, and friendly to innovation and competition (news flash: at present, they're none of the above).

He said that the problem is simple: telecommunications laws are based on the service, not on the underlying network. That means that the same service will be governed by a completely different set of rules depending on whether it is transmitted over the telephone network, a wireless network, or a cable TV network.

McCollough said that regulation should be based on the new network, not on old technology, and the best description of the new network is the OSI Model.

As Steve Stroh said in the article we posted yesterday, That Old Time Internet Religion, "there's a complete decoupling of service and bandwidth." His views on the changes that are occurring in the Internet industry mirror the changes McCollough is suggesting should happen in telecommunications law.

Regulation, McCollough argued, should be horizontal, not vertical. It should treat every service on any one layer the same.

"We don't want regulation where it's not necessary," he said. "We need to regulate only those corporations with market power. So the Wi-Fi network would need no regulation, but the phone company would have to be regulated."

Innovation is served when no company can prevent a service from being delivered over its own network. "We don't want a company with market power on the physical layer to get power over the network or service layer," he said.

When that happens, innovation stops, as David Isenberg argued in his essay The Rise of the Stupid Network.

Isenberg described an attempt in the 1970s to deliver higher quality voice service that was thwarted by the network architecture of the phone system:

An astute AT&T perceptual psychophysicist (and a friend of mine) determined that voice quality could be substantially improved by boosting the bass part of the signal, that part of the audio spectrum between 100 and 300 cycles per second. But as we set out to implement this conceptually simple improvement, we kept running into the problem that there were too many places in the network that had built in "intelligent" assumptions about the voice signal—echo cancellers, conference bridges, voice messaging systems, etc.—and too many devices that depended on these acoustic assumptions for their correct operation—modems, fax machines, and a surprising number of strange devices with proprietary analog protocols. After about two years of intense effort, we made a noticeable difference, one that most listeners preferred (if asked explicitly), but it was not as large as it could have been. There was too much "intelligence" intertwined with the basic transport.

In McCollough's vision, the companies with market power would no longer be granted special privileges by the government. Instead, the network would be open, and a thousand new services would bloom.

In yesterday's article, Steve Stroh argued that the wireless network will provide all of this anyway. Time will tell whether or not he's right, but just because the phone company will disappear anyway is no argument for retaining today's labyrinthine rules. Current technology permits knowledgeable users to avoid the rules, punishing and even taxing only those who obey them.

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