A dozen years after its publication, Peter Huber's "Law and Disorder in Cyberspace" remains relevant and as insightful as when it was first released.
The book takes the reader on a quick trip through federal regulation of telephone, broadcast, and cable. It's no warm, fuzzy tale. Huber's retelling of how regulations stifled investment, chilled innovation, and delayed deployment in new media and communications technologies is positively cringe-inducing. The saga runs from the federal government's first forays in broadcast licensing on down to the demise of the "fairness doctrine" in broadcast regulation. There is a run-down of the federal monopoly regulatory regime for telephone service, from Carterfone and Hush-a-Phone, to the Computer Inquiry rules, on to the consent decree in Judge Harold Greene's Court. (Importantly, this book takes into account the Telecommunications Act of 1996, which brought an end to the decree.) A tour of cable regulation shows how that disruptive technology disrupted pre-existing regulatory models--though that didn't stop regulators from asserting jurisdiction over it in order to protect broadcasting.
A larger take on regulation also comes into view in this book. One theme to emerge is the unfortunate imposition of pre-existing regulatory categories (designed for older technologies) on newer technologies. Another is the extent to which public officials went out of their way to protect "free" ad-supported broadcasting or local broadcasting from competing technologies and offerings.
What still stands out most in "Law and Disorder in Cyberspace" is the book's provocative thesis: the Federal Communications Commission (FCC) should be abolished and "telecosm" regulation should be replaced by common law. Huber looks to the bottom-up method of incremental, distributed, ex post decision-making that characterizes the common law as a superior way to unleash the forces of competition and innovation. After Huber's grim history of telecommunications regulation, the contrasting top-down, centralized, ex ante approach of a federal regulatory commission certainly looks less attractive. As a practical, political matter, abolition of the FCC seems unrealistic, perhaps far-fetched. Regardless, Huber's underlying insights are still worth pondering.
Since the main text of the book concludes at page 206, this isn't a long treatise meant to explain every detail. For instance, Huber mentions in passing that the "essential facilities" doctrine has served fairly well. Even one sympathetic to Huber's arguments and to a consumer welfare-driven antitrust outlook may be left wondering what that means. (The U.S. Supreme Court has since cast serious doubt on the "essential facilities" doctrine.)
Along the way, Huber professes his concerns about the Telecom Act of '96's unbundling mandates in wireline--and was ultimately proven right. He takes wireless a lot more seriously than public officials who put together the Telecom Act of '96. It's now a dynamic, competitive industry that has prompted many customers to cut the chord. Huber also explores the many future implications and breakthroughs coming from broadband. And he takes plenty of jabs at federal regulators--especially the FCC. All in all, the book is thought-provoking take on regulation and the telecosm.
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