Higher Standards: Regulation in the Network Age

Interoperability, Standards, Networks, the Internet, and Cloud Computing and Networks and Infrastructure

Article Snapshot


Kevin Werbach


Harvard Journal of Law and Technology, Vol. 23, p. 179, 2009


The author argues that the FCC should move towards a standards-based approach to overseeing digital networks.

Policy Relevance

As networks proliferate, the FCC’s regulatory procedures are increasingly becoming inadequate. Consequently, the FCC should opt for regulation using standards as the primary tool. Such an approach is more in line with the technical nature of the marketplace the FCC regulates.

Main Points

  • Networks are now ubiquitous and, in complex network industries, the operators of those networks must connect with each other to provide service. Thus, operators who can work together have a competitive advantage.
  • Regulation by the Federal Communications Commission (FCC) based on the old command-and-control approach is inflexible and hinders innovation. The FCC is not prepared for the new challenges it is facing in this area.
  • The FCC should seek to regulate via standards that incorporate private and governmental efforts that foster cooperation and important public interest goals. The FCC needs to invest in technical expertise to accomplish this.
  • By using standards rather than rules to accomplish its regulatory goals, the FCC will be falling in step with the broad trend in administrative law towards reliance on privately developed standards.
  • The nature of complex networks requires that market participants have the flexibility to use the best solutions technologically available, which will promote competition and an open network philosophy.
  • Outcomes to issues in this decentralized context would often be resolved better through collaboration between private entities regarding technical mechanisms before regulatory controls get involved.
  • The FCC’s broadband network management and “white spaces” regulation are indicative of how a standards based approach would be beneficial. Answering difficult technical questions through private cooperation and government oversight by using standards is the best method for today’s complex and widely distributed networks.

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