Public Interest Telecom Law

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The topic is central in a special November-December 2010 issue of the Gordon Cook Report dedicated to the work of Eric Cecil:

"This transcript features Erik Cecil’s commentary, in discussion with many others (including Vint Cerf, Harold Feld, and Chris Savage), on the changing face of communications networks and the technological, political, and legal forces affecting them. What bears emphasis is Erik’s consistent focus on how regulatory decisions can and should benefit the public, and his view that there are many ways for profit-making firms to thrive in such a regulatory environment – by also benefiting the public. By contrast, as will be seen, Erik passionately articulates the view that companies that focus on gaming the regulatory system to their advantage may obtain short-term benefits – whether at the expense of their customers or their competitors – but in the long term will be undermined by alternatives that, again, focus on serving the public."

==Summary and Conclusion

Gordon Cook:

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 edgebased, 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. What is very clear from the one hundred page tour de force that these paragraphs conclude is that, regardless of how fast Public Interest Telecom Law takes off, Erik Cecil is right now its founder and can be expected to prosper.

Editorʼs Afterword

This two month issue started out a month ago with the idea that I would merely stitch together what I saw as the best of Erik's writing over the last nine months. I selected probably two dozen messages of Erik’s from approximate total of 3000 messages on Arch-econ during that time and included other posts necessary to put what Erik posted into context. What has happened in the meantime though has been a kind of labor of love in which both Chris Savage and Erik donated dozens of hours of additional time to make this document into what I believe is a compelling indictment of the absurdity of telecommunications policy making at the national, state, and local levels. I've asked Erik for many clarifications which he has provided including additional writing, charts, and diagrams that I find very compelling and believe my readers will as well.

For the last dozen years I have watched the 96 Act be undone and blind worship of the private interest preventing forward movement on building the most important general purpose technology of the new Century. This material shows in a passionate, compelling, and stunning way the bankruptcy of the policy of the Federal Communications Commission and of telecom policy in general in the United States. I think it is the most iconoclastic deconstruction of the absurdity of what we've done to ourselves that I have ever seen and likely ever has been written. However, further improvement is certainly still possible. Erik and I would certainly like to see that happen. Every citizen should understand what has been obscured by the reification of regulatory capture that has turned our governance of telecommunications into a self-contradictory, Ptolemaic monstrosity patched together by formulaic epicycles. The Copernican revisioning that Erik has undertaken is way overdue. As a former student of Russian history I much enjoyed walking alongside the dissidents who became the Russian intelligentsia as they defined the blatant absurdity of the world in which they lived. The last month’s work on this issue has been difficult but enjoyable in taking further steps that I hope will overthrow the current absurdity in which we find ourselves.

When I likened what we have done to taking disconnected ideas and fashioning them into a sleek missile to overturn the regime. Erik responded: “Not a missile but a seed of hope that may one day take root in the hot dry pavement and sterile air conditioned boxes we've created out of the once vibrantly unpredictable yet ever adaptive Internet. From the seed’s germination we must grow new ecosystems and new planets of value. Nature allows all to participate and all to benefit (or perish) according to some very simple and very obvious laws. No AUPs are required of the natural intelligence that breathes through you without your conscious effort as you read this. So too, one day, we will realize our innate intelligence, I hope we will find new ways to free ourselves from enslaving our greatest creations to fear and scarcity. Then we shall unleash unimagined technologies. Where human beings, technologists, inventors, analysts, businesspersons are concerned, the sky is the limit only so long as we agree that limits exist.

In any ultimate sense, therefore, the policy solution is NOT far away or complicated. It is a zerodistance event because it is within each of us individually. Peaceful, beneficial revolution is powered by human imagination, uncompromised by the apparent limits of the present moment. We can re-vision the present iteration. Declaration is creation. Declaration, in purest service to all, is creation on scales as grand as the depth and breadth of the service given. Dream big. This force created every network technology since the dawn of intelligent life and will continue to do so long after our footsteps are buried in miles of rock and our voices a silent echo. We can only hope that in our brief flicker of life we have dared to dream a dream greater and more powerfully beneficial to all that we may honor those who have done the same for us.

Let us do the unthinkable and give abundance to the next and succeeding generations on the grandest scale possible. Let us take the tiniest steps now, and for 30 seconds, imagine such a thing to be possible. Just imagine a greater reality. Let that Genesis be our enduring gift to a troubled planet so greatly in need of care. Let's return the Internet to the naturally abundant state that bore so many gifts for so many of us. Let us give it back to ourselves, our children and their children. Let us begin on this moment by imagining such a thing is possible. Let us conceive abundance, carry it, nourish it and free it. Imagine …” Erik concludes."

Source

COOK REPORT ON INTERNET PROTOCOL NOVEMBER - DECEMBER 2010

Volume XIX, Nos. 8 and 9

2010 COOK NETWORK CONSULTANTS 431 GREENWAY AVE. EWING, NJ 08618-2711 USA

The COOK Report on Internet Protocol is at http://www.cookreport.com  ; contact via cook@cookreport.com or 609 643-2067.