John F. Blevins (South Texas College of Law) has posted A Fragile Foundation — The Role of Intermodal and Facilities-Based Competition in Communications Policy on SSRN. Here is the abstract:
The communications industry is currently experiencing extensive and rapid deregulation. The policies justifying this deregulation have been constructed upon the concepts of intermodal and facilities-based competition. At both the federal and state level, regulators and courts have increasingly embraced deregulatory policies that promote – and assume the existence of – these forms of competition. In short, these concepts have become the theoretical foundation of modern communications policy. In the rush to either embrace or reject these forms of competition, policymakers and scholars have not paused to ask whether these two concepts are descriptively meaningful. In this article, I argue that they are not – specifically, I argue that the conceptual foundations of modern policy are inconsistent with the realities of network infrastructure. As a result, the trend toward deregulation is premised upon flawed and unrealistic conceptual foundations. This article outlines these conceptual inconsistencies along with their regulatory implications. To be clear, I do not oppose deregulation per se, but instead call for a renewed focus on network infrastructure in regulatory proceedings.