Susan Crawford is giving a lunchtime talk on the Internet and the project of communications law. [As always, I’m paraphrasing and getting things wrong.]

When Susan was in DC practicing law, the FCC began assuming it had the right to regulate what it calls “IP-enabled services.” This over-extended the FCC’s reach, way beyond telecommunications.

There are two completely different visions of the Internet, Susan says. To the communications industry, it’s a distribution system premised on scarcity. From the Nethead point of view, the Net is an agreement about how to communicate.

She begins by making five points. [These are cribbed pretty much from her slide, with some additions.]

1. First generation communications law focused on infrastructure optimized for particular uses.

2. Now a single pool of digital data is replacing former communications modalities. Users are indifferent to the transport mechanism.

3. Economic growth is triggered by new ideas and diversity.

4. The Internet is an unparalleled idea-generation engine.

5. So, it’s time for a new conception of communications law. In particular, we should begin thinking about separating the transport layer from the rest. This would be a big change.

The Internet is blurring categories, she says. Convergence has already arrived. But the incumbents are fighting back. They’ve convinced the FCC that highspeed access is not a common carriage service. They want to maintain their old services as they move to the Net. So, for example, they define IPTV as a special service, not just one more set of bits moving through the Net. The Supreme Court has agreed with them. Now they’re selling bundled services, which is what they think of as “convergence.” And they’re convincing Congress that they need to monetize Internet access to make it worth it to them, she says.

But, the facts on the ground seem to show users have a different view. Users think of the Net as a single pipe that brings lots of different types of services, not as separate services. (The exception, she says, is telephone service, although I think VOIP will get users over that.) Netheads think of the bits-over-pipes service as a commodity, while the telcos think they’re providing services such as pay TV, telephony, etc.

This is becoming particular acute because of the consolidation of providers.

“Current theorists,” she says, focus on “new ideas as the source of growth.” We should be trying to increase the Internet’s ability to generate new ideas. And not just for new applications. The ideas that could emerge are unpredictable and could be profound and transformative.

“I am an Internet exceptionalist,” she says. The Net is different. It’s not “just like” a railroad or “just like” a cable system. For one thing, it is a complex system. Order emerges from the complex interactions of individuals. We can’t control what will emerge and we shouldn’t try to because it will reflect our interests.

What is the role of regulation? Communications law can have a dampening effect on communication and creativity because it enshrines gatekeepers and prioritizes security. We should try to convince the regulators of the potential of economic growth by not regulating. (But she is willing to use taxation to affect social goods such as providing universal access.)

We should prioritize diversity, avoid rigidity and randomness, facilitate feedback, and have the merits arguments drive policy (rather than “following the money”)…but it’d take another FDR for this sea change to occur.

Q: Isn’t there scarcity in building the last mile of networks? Not anyone can dig a hole to my house.
A: Yes, that is scarcity and that’s why I want the government involved in the build out.

Q: Isn’t spectrum scarce?
A: Smarter devices enables more signals. But in the “whitespaces” procedure at the FCC, considering what to do with newly-opened frequencies, the FCC seems to have changed its mind and now is saying we have to “protect” TV signals even though fewer of us than ever get our TV signals over the air.

Q: (me) I agree that the right solution is to structurally separate the transport layer, but even the Net Neutrality folks (like me) settle for a milder compromise, talking about non-discrimination. And if the layers were separated, the telcos wouldn’t even be the right ones to provide this commodity service because they’re structured to sell services (as Bob Frankston says). There seems no political will for doing the right thing.
A: Not yet. But it’s like the creation of the TVA under FDR.

Q: (Ethan) But who was the TVA displacing?
A: I resist the notion that because the incumbents are so entrenched now, our hackles won’t be raised when we get envious of Japan and Estonia. Someone has to be optimistic.

Q: (me) Who in public life supports this?
A: Sen. Ron Wyden’s office maybe, sort of. But there’s not a lot of support among those in public life. [Whoops, I got this wrong. See Susan’s correction in the comments. It apparently goes no further than a conversation she had with a Wyden staffer who was open to considering it. Something like that.]

Q: Might wireless wrest control away from the telcos?
A: Exactly.

Q: In the developing world, you end up compromising in order to provide some needed service while allowing competition in other areas.

Q: (Andy Orem) The growth of wimax will help.
A: Yup.

Q: (me) Why?
A: Wimax breaks down the walled garden. [We’ll use big-range wimax instead of the cellular network.]

Q: Anyone talking about extending the school day by requiring schools to provide online materials to be used at home [which would drive policies for universal access]?
A: Interesting.

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