A lawyer for MCI presented a common sense framework for internet regulation at the Freedom To Connect conference. It's about getting rid of old ideas and seeing the internet as it really is.

by Alex Goldman ISP-Planet Managing Editor [May 13, 2005]

Adam Theirer's decision to not show up for the Freedom To Connect conference's "great debate" on the regulation of the internet was probably a good one, as he would not have been guaranteed a friendly reception.

Conference founder David Isenberg had already dissected the tone and rhetorical strategies in Thierer's latest missive, Howard Dean's Plan for the Internet: Collectivism In, Property Rights Out from the CATO Institute. The paper advances arguments similar to those we examined in our review of the book he co-wrote called "What's Yours Is Mine: Open Access and the Rise of Infrastructure Socialism".

It's an argument that gets repeated over and over again in telco filings to the FCC, but the facts support the opposite conclusion, that access promotes a free market and innovation. At ISP-Planet, we believe that monopolies are appropriate to feudal, communist, and fascist regimes but a free market is appropriate to a democracy. When the regulators actually examine the facts, they find that the monopolies do not innovate and do not deploy, and sometimes nevertheless make decisions that go against the facts they've learned, as in The FCC's Fiber Failure. See also this history lesson from Rep. Ed Markey (D-MA) and this complaint from a significant investor.

Within the confines of an informal debate format, in which each side trades barbs and innuendos, the facts were not fleshed out. The pro-monopoly side quibbled frequently over semantics and argued accepted points (partial transcript here). For example, they argued that the layers model of the internet is "complicated" and not flexible, even though it's survived the entire history of the internet.

A wit to remember
Luckily, however, MCI's Richard S. Whitt, vice president for federal law and policy, had brought some facts along in the form of a powerpoint presentation (preprinted in handout form but available here in .pdf) and a link to a voluminous and exhaustive white paper, A Horizontal Leap Forward: Formulating a New Communications Public Policy Framework Based on the Network Layers Model [.pdf].

MCI has been arguing for some time that the internet should be regulated according to the layers that make up its architecture (whether it will continue to advance this argument after being acquired by an RBOC is an open question).

The regulation of the internet and of telecommunications should follow the structure of the internet. The internet is built in layers: a physical layer connects one piece to another, a transport layer establishes connections between one piece of software on one computer and a piece of software on another computer, and an application layer utilizes the connection. Over time, more complex versions of the model have been developed.

The form of the law should follow the function of the element
But the fundamental point is that each layer should be regulated in the same way because its function is the same. You want to ensure competition at the same layer no matter what business is moving the IP, whether it's cable, DSL, wireless, fiber, or anything else.

You want to prevent control at one layer from inhibiting competition at another. You want to allow people to access their service anytime anywhere. You want to get out of the way and let innovation and competition happen, stepping in only to protect free markets from monopolies.

Whitt cites the ideas of many who support this theory: Larry Lessig, Yochai Benkler, Kevin Werbach, Lawrence Solum, Robert Entman, Douglas Sicker, David Isenberg, Vint Cerf, Timothy Wu, Michael Katz, Philip Weiser, Rob Frieden, Craig McTaggart, John Nakahata, Scott Marcus, and maybe even Michael Powell.

Once you create a common sense framework for looking at policy issues, Whitt says, the problems themselves fall into place. He contrasts the layer framework with the current policy framework, which he calls "silos". In the current framework, policy for fiber is separate from policy for DSL which is separate from wireless which is separate from cable.

A competitive, healthy internet needs reasonable, light governance. More than that, though, the internet needs certainty in regulation. The layers framework is the first step on the road to health.

— End