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4 J. on Telecomm. & High Tech. L. 59 (2005-2006)
Breaking the Ice: Rethinking Telecommunications Law for the Digital Age

handle is hein.journals/jtelhtel4 and id is 65 raw text is: BREAKING THE ICE: RETHINKING TELECOMMUNICATIONS LAW FOR THE DIGITAL AGE KEVIN WERBACH ABSTRACT Telecommunications is a trillion-dollar industry undergoing a mas- sive transformation, both in its technological underpinnings and its mar- ket dynamics. As technology and market developments undermine long- standing business models and value chains, existing legal frameworks are failing. A layered model for communications policy would provide a better foundation for competition, investment, and innovation than the legacy silo model. Just as water exists in three forms - solid ice, liquid water, and gase- ous steam - digital networks manifest themselves in functional layers of physical connectivity, applications, and content, which interact with one another through technical interfaces. The unstable conversion points be- tween forms of water are called phase transitions. The phase transitions in digital communications networks are the logical layer, which connects users and resources to networks, and the interface layer, which connects users and information to devices. Legislators and regulators traditionally ignore these connective layers. Yet as the layered model reveals, they are central to the emerging policy challenges of a converged world. Phone numbers, Internet protocol routing techniques, and digital rights management technologies are examples of logical and interface-layer fea- tures that are determining the complexion of converged digital networks, and the business opportunities that depend on them. A layered approach would use connective layer tools to reconceptu- alize traditional elements of communications policy. This would elimi- nate uncertainties about the legal status of voice over IP, mitigate con- cerns about a subsidy shortfall for rural phone customers, and lay the groundwork to address emerging competitive, governance, privacy, and other issues around digital identity. Moreover, by pinpointing these hid- 'Assistant Professor of Legal Studies, The Wharton School, University of Pennsylvania. Email: kevin@werbach.com.

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