Federal Internet Law & Policy
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Werbach, The Digital Tornado (1997)

Dont be a FOOL; The Law is Not DIY

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In 1997, the FCC uttered its first words specifically about the Internet (compare The Computer Inquiries which addressed "computer networks"). Kevin Werbach, Counsel for New Technology Policy in the FCC’s Office of Plans and Policy, released a working paper entitled Digital Tornado: The Internet and Telecommunications Policy. The Telecommunications Act of 1996 had not mentioned the Internet and the Internet had been unleashed to the public by the National Science Foundation only a few years before. The Internet fell within a void in communications policy, and this void created anxiety.

First, Werbach spoke specifically to incumbent anti-exceptionalists who sought to reign in the Internet as a competitive threat and jam it under legacy communications regulation. The Internet facilitates long distance communications. Long distance telephone companies had to pay high access fees in order to interconnect with local networks; the Internet did not and those companies believed that to be unfair. In addition, the new Internet software enabled free telephone calls. Even in the era of narrowband Internet, incumbent telephone carriers felt threatened and petitioned the FCC to regulate Internet telephony like incumbent telephony.

Articulating the exceptionalist vision to the Internet, Werbach declared,

the Internet is fundamentally different from other communications technologies. In most cases, simply mapping the rules that apply to other services onto the Internet will produce outcomes that are confusing, perverse, or worse. Any attempt to understand the relationship between the Internet and telecommunications policy must therefore begin with the distinguishing aspects of the Internet.

In other words, the Internet is not the archaic circuit switch telephone network with its complication of access fees. The Internet efficiently uses network resources and enables innovation and promising new services. The problem of the inefficient telephone network is innate to the telephone network, not caused by the Internet—although the Internet holds the promise of disrupting old, less efficient regimes. Werbach’s recommendation that the FCC embrace the policy of keeping the Internet unfettered by regulation was rearticulated in the FCC’s 1998 Steven's Report and embraced in further proceedings.

Second, Werbach presents a grand vision for U.S. policy. “Limited government intervention is a major reason why the Internet has grown so rapidly in the United States. The federal government’s efforts to avoid burdening the Internet with regulation should be looked upon as a major success, and should be continued.” The government has a role, according to Werbach, but it is a deregulatory approach that looks first to identify those areas where regulation is unnecessary. Werbach notes that the “Framework for Global Electronic Commerce” developed by the White House with the involvement of more than a dozen federal agencies, similarly emphasized the need to avoid unnecessary government interference with the Internet.”

For Werbach, the Internet is an opportunity to move out of the era of government sanctioned and regulated monopolies to a communications policy driven by competition. “Once competition is sufficiently well-developed, regulation may become largely unnecessary. At some point, companies will be disciplined more strongly by market forces than by the dictates of regulators.”

Werbach anticipated the disruption of the legacy incumbent telecommunications services with competitive and innovative services, and the Internet moving into the broadband era. In order to achieve the promise of a broadband Internet, Werbach sought to ensure that the Internet is not “fettered” by legacy regulations. Other FCC reports would follow that would generally endorse that same philosophy.


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