by Peter W. Huber
In 1996 Congress passed one of the most important pieces of economic legislation of the twentieth century: a new Telecommunications Act. The Act's ostensible purpose is to open markets to competition and deregulate them. But as competition increases, monopolies fade, and the supposed scarcity of spectrum is engineered into vast abundance, the FCC just gets bigger. An institution created to ration scarcity now thrives by brokering plenty.
Until 1996, the universe of communications and computers was governed by laws that dated back to 1927 and 1887. When the U.S. Congress created the Federal Radio Commission in 1927, what we now call cyberspace was just "ether." Broadcasting had only just begun to carry tinny human voices and music across the fields and prairies, while phone calls snaked through wires below, courtesy of an army of operators who still switched most circuits by hand. In 1934 after complaints that the airwaves were becoming hopelessly chaotic, in the belief that broadcast spectrum was a limited natural resource, and that competition in telephony was wastefully inefficient all federal authority over electronic communications was forged into a new, powerful FCC.
Cable television, direct broadcast satellite, cell phones, the V chip, Caller ID, and the Internet have since transformed the "telecosm," the universe of computers and the communications links between them. The amount of information traversing the wires and the airwaves has increased a hundred million fold since 1927. But has the FCC's ability to the manage the technology kept pace?
The answer, according to Peter W. Huber, in Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm, is an emphatic No. In this well researched, lively, even witty polemic, Huber recounts the history of telecommunications and its regulation over the last century. The FCC, Huber argues, "should have been extinguished years ago." The Commission has protected monopolies, obstructed efficient use of the airwaves, corrupted common carriage, mispriced services, curtailed free speech, weakened copyright, and undermined privacy. Large, bureaucratic entities like the FCC can never adjust quickly enough to such rapidly changing technologies.
Addressing charged points of conflict such as free speech vs. censorship, privacy vs. right to know, and market vs. controlled pricing, Law and Disorder in Cyberspace energetically proposes that sensible telecommunications policies evolve through common law (the accretion of decisions arrived at in specific cases where basic principles such as private property and anticompetitive business practices are challenged and upheld) and not through the top down, government imposition of inflexible regulatory mandates.
Peter Huber's arguments are timely, urgent, and meticulously documented. Law and Disorder in Cyberspace is not only informative and entertaining, but will be one of those rare books that influences public policy before the end of this decade.