Award Winning Blog

Tuesday, December 8, 2015

The Regulatory Uncertainty Red Herring

            I wish I had a dollar every time I see and hear regulatory uncertainty vilified. In telecommunications regulation and policy, stakeholders involve RU as the reason for any ailment. RU prevents capital investment; RU stifles innovation; RU kills jobs; RU hurts national competitiveness.   RU causes the common cold.

            Here’s a news flash: unless one operates in a market completely free of regulation, there always will be some degree of uncertainty what the future regulatory climate will be.  Speaking of uncertainty, who knows what the cost of capital will be in a year, what law suits will confound a particular company; what technological innovation will challenge the status quo?

            Regulation constitutes one of very many variables for which a commercial venture cannot control.  Companies have to deal with it, but in this day telecom executives speak in complete opposites depending on the audience. To Congress, the FCC and the court of public opinion corporate executives trout out RU as a terrible scourge.  To buy side analysis and in commercial practice the very same executives accept RU as one of many variables in business.

            Has RU prevented wireless companies from making substantial sunk investments in next generation network spectrum and plant?  If RU is such an abomination how can AT&T CEO Randall Stephenson tell one constituency AT&T has had to curb capex investment while at the same time the company pays 45 billion dollars to acquire DirecTV and may offer its own mobile video streaming service? 

            So let me get this straight: RU curbs innovation and investment even as billions of dollars in mergers, acquisitions and new ventures continue to sprout.  

Everything You Ever Wanted to Know About Network Neutrality

            During my sabbatical from Penn State last term, I embarked on several network neutrality deep dives.  I have generated the following publications:

Conflict in the Network of Networks: How Internet Service Providers Have Shifted From Partners to Adversaries, COMMUNICATIONS & ENTERTAINMENT LAW JOURNAL (in production).

Network Neutrality and Consumer Demand for “Better Than Best Efforts” Traffic Management, FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL (in production).

Ex Ante Versus Ex Post Approaches to Network Neutrality: A Comparative Assessment, 30 BERKELEY TECHNOLOGY LAW JOURNAL, No. 2, 1562-1612 (2015).

Déjà vu All Over Again: Questions and a Few Suggestions on How the FCC Can Lawfully Regulate Internet Access, 67 FEDERAL COMMUNICATIONS LAW JOURNAL, No. 3, 325-376 (2015).

What’s New in the Network Neutrality Debate, 2015 MICHIGAN STATE LAW REVIEW 739-786.

Internet Protocol Television and the Challenge of “Mission Critical” Bits, 33 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, No.  1, 47-87 (2015).

            I can send a copy or web link upon request.