Evolving Broadband Policy: Taking Adaptive Stances to Foster Optimal Internet Platforms
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EVOLVING BROADBAND POLICY: TAKING ADAPTIVE STANCES TO FOSTER OPTIMAL INTERNET PLATFORMS Richard S. Whittt "I don't care who writes a nation's laws-or crafts its advanced treaties-if I can write its economic textbooks." Paul A. Samuelson' I. INTRODUCTION So what is the big deal about broadband? Why should we care whether or not consumers have access to high-speed Internet connectivity? What is so unique about this particular infrastructure that we worry over crafting national broadband plans and strategies, and devoting billions of dollars in government economic stimulus spending, and encouraging corporations to spend their own tens of billions of dollars-just to get more of it? And what is behind the ongo- ing clash between network providers and users over broadband as a means of gaining "open" access to the Internet? Much ink has been spilled in recent years over the legal and regulatory is- sues surrounding broadband networks and services. This paper will sacrifice a little more in the hope of casting additional light on how policymakers should fashion public policy that fully and effectively enables broadband as an opti- mal Internet platform. In particular, by focusing largely on the technical, eco- nomic, and legal grounding of broadband networks, and offering some specific I Mr. Whitt currently is Washington Telecom and Media Counsel at Google Inc. This paper solely reflects his personal views, and not necessarily those of Google. The author would like to thank Anjali Dalal and Debbie Rosenbaum, former policy interns with Goo- gle, who provided helpful suggestions on the format and content of this paper. Derek Slater and Donna Lampert also supplied thoughtful critiques of an earlier version. The author ap- preciated additional suggestions by Tim Wu and Scott Hemphill, and the sharp students in Tim's Intellectual Property Colloquium at Columbia Law School. I James Surrowiecki, Class Action, THE NEW YORKER, Nov. 7, 2005, at 46 (quoting Paul Samuelson, the Nobel Prize-winning M.I.T. economist). COMMLAW CONSPECTUS [Vol. 17 potential policy projects, I hope in some manner to further a healthy debate over the appropriate policy regime to govern this generative infrastructure. This work incorporates and expands on two previous papers. In an initial piece co-authored with Stephen Schultze, we introduced the concept of "emer- gence economics" to describe a unified framework built on the latest findings of various schools of economic theory.2 In a second piece I explicated the con- cept of "Adaptive Policymaking" by governments, including some guiding principles and framing tools for utilization in the public policy design space Here, I present some specific ways that policymakers should use these con- cepts and frameworks to grapple with current controversies in the regulatory treatment of broadband networks. First, the Article provides a brief overview of emergence economics, em- phasizing the unique role of the Internet in creating and furthering innovation and economic growth. Adaptive Policymaking by governments then is summa- rized, and some guiding principles and a public policy design space are pre- sented. The design space includes a proposed adaptive toolkit for use by poli- cymakers, including institutions (the how), organizations (the who), conceptual frames and tools (the which, when, and where), and actual projects (the what). Next, the Article explains how communications policymakers should define an overarching public policy goal of "more good ideas" and a concomitant public policy objective of "harnessing broadband networks." The Article stresses how policymakers should take a particular interest in encouraging broadband as an optimal platform for accessing the Internet, and how commu- nications policy should incorporate various realities of the physics and eco- nomics of deploying broadband networks. The Article also explores the three dimensions of the availability of broadband infrastructure, the sufficiency of Net capacity, and the integrity of Net access as necessary components of broadband networks serving as optimal pathways to the Internet. After the suggested framework for Adaptive Policymaking is established, the Article applies it to the development of a public policy design space spe- cifically for broadband infrastructure. The clash of incentives and mindsets by market players is explored, including the public policy objective to foment op- timal broadband deployment against the countervailing market backdrop of broadband providers facing limited competitive challenges, significant and growing positive externalities, and the pecuniary benefits from prioritizing In- ternet traffic, and supplying managed networks. The institutional arrangements 2 Richard S. Whitt & Stephen Schultze, The New "Emergence Economics" of Innova- tion and Growth, and What It Means for Communications Policy, 7 J. OF TELECOMM. AND HIGH TECH. L. (forthcoming 2009) (manuscript at 1). 3 Richard S. Whitt, Adaptive Policymaking: Evolving and Applying Emergent Solutions for U.S. Communications Policy, 61 FED. COMM. L.J. (forthcoming June 2009) (manuscript at 1-2). [hereinafter Whitt, Adaptive Policymaking]. 20091 Evolving Broadband Policy that traditionally have governed communications infrastructure-including the common law roots of common carriage-are examined in light of the policy- making framework. That examination focuses on the increasingly forgotten common carriage prongs of public callings and voluntary bailment. Finally the Article delves into the prospect of evolving policy solutions to deal with the objective of creating optimal broadband infrastructure for Internet access, in- cluding utilizing the appropriate organizations, institutions, and tools. In con- trast to more prescriptive remedies that, for now at least, should be resisted, the Article puts forward some suggested adaptive projects to deal with concerns about maintaining and extending robust broadband as an optimal platform to the Internet. II. THE ECONOMIC AND SOCIAL ROOTS OF ADAPTIVE POLICYMAKING For too long, too many policymakers in the United States have assumed that "Old School Economics"--a term I have employed previously to represent the outdated versions of economic theory still deemed to be received wisdom in the policy world-accurately represents the realities of the marketplace.4 As a result, today's public policy discussions often seem rooted to the past in the form of economic and technological assumptions that more or less ended in the 1960s.' The rise of new economic thinking combined with new technology platforms culminating in the Internet directly challenges many of those chief assumptions. In particular, in a rapidly evolving global marketplace, new ideas and technologies are the fodder that fuels a nation's economic growth; they also bring a raft of other personal and social benefits. The extent of the public policy implications is too important to be ignored. 4 See William H. Page, The Chicago School and the Evolution ofAntitrust: Characteri- zation, Antitrust Injury and Evidentiary Sufficiency, 75 VA. L. REV. 1221, 1242-43 (1989); S.J. Liebowitz & Stephen E. Margolis, Should Technology Choice Be a Concern ofAntitrust Policy?, 9 HARV. J.L. & TECH. 284, 288-89 (1996); see also The Chicago School, http://cepa.newschool.edu/net/schools/chicago.htm (last visited Mar. 12, 2009) ("The term 'Chicago School' is associated with a particular brand of economics which adheres strictly to Neoclassical price theory in its economic analysis, 'free market' libertarianism in much of its policy work and a methodology which is relatively adverse to too much mathematical formalism and will forego careful general equilibrium reasoning in favor of more results- oriented parital equilibrium analysis."); Whitt & Schultze, supra note 2, at 77. 5 See infra Part II.A; see e.g., Christopher Caldwell, Old School Economics, N.Y. TIMES MAGAZINE, Jan. 27, 2008, at 11 (discussing presidential candidates' focus on appeal- ing to factory workers, when the percentage of Americans working in manufacturing has declined to 15% in 2008 from 30% in 1950); see also Whitt & Schultze, supra note 2, at 2. COMMLAW CONSPECTUS [Vol. 17 A. Introducing Emergence Economics Emergence economics is my umbrella term for the latest findings from a wide variety of cutting-edge schools of thought including behavioral econom- ics, game theory, complexity science, network science, new growth theory, and competition theory.6 Collectively these different theories offer the promise of a new conceptual framework-a way of approaching and understanding the growth-oriented network economy created by the Internet. That framework seeks neither to engineer deterministically the dynamic economy, nor to as- sume blindly that it is evolving toward perfect efficiency. The hoary economics presented by policymakers in public policy debates maintains, for example, that the market is linear and always seeks equilibrium; that economic actors are perfectly rational, with perfect knowledge of them- selves and the marketplace; that production is generated only by capital mar- kets or government subsidy; that growth is exogenous; and the whole of the economic system is always equal to the sum of its parts. It turns out that every one of these key assumptions is either overstated, or plain wrong.7 Emergence economics helps clarify, for example, that knowledge and tech- nology are not just outputs of the economy, but also essential inputs that drive economic growth and countless other social benefits. Further, game-changing