Brett Frischmann’s Contribution to Policy Debates Regarding Governance of Infrastructures
posted by Barbara A. Cherry
Because the framing of issues is so critical to how policy debates are conducted and policy outcomes are ultimately chosen, Brett’s analysis contributes to more balanced discussion within policy debates related to governance of infrastructures. Brett’s book emphasizes the functional role both of infrastructure resources to society and of commons as a resource management strategy, providing important insights for considering appropriate governance of infrastructure resources. Its analytical strength stems from development of a typology of different infrastructures “based on the types of systems dependent on the infrastructural resource and the distribution of productive activities it facilitates” (p. 61), which is then used to understand the importance of (what Brett describes as) demand-side characteristics of various types of infrastructures. This demand-side functional approach is contrasted with the supply-side approach that has tended to dominate the focus of policy debates related to governance of infrastructures.
To understand Brett’s analysis, it is critical to understand the definitions of component terms and certain economic and legal concepts upon which his analysis is based. For this reason, one has to patiently work their way through substantial portions of the book that lay the foundation for understanding how his typology contributes to understanding commons management (a form of nondiscriminatory access rule) to infrastructures both generally and in specific contexts. This is a compliment – not a criticism – of how Brett took on the challenge of carefully constructing analytical arguments, particularly from concepts of law and economics of which readers are likely familiar but perhaps with differing shades of meaning.
However, it is also challenging to accurately incorporate the research of others who are also attempting to contribute towards a more balanced policy debate of governance related to access to infrastructures. In this regard, for me, a weakness in the analysis throughout Brett’s book is some inaccuracies (or insufficient clarity) as to the functional role of various bodies of law that have developed to address access problems in varying contexts. For example, discussion of common carriage (see p. 218) conflates origins of the common law of common carriage and public utilities. The origins of common carriage obligations are based on duties under tort law; and it is public utility law, not common carriage, that developed in part from laws of franchise and monopoly. But because some infrastructures – such as railroads, telegraphy and telephony – are both common carriers and public utilities, the distinctive functional roles of the two bodies of law have come to be conflated and misunderstood. This conflation, in turn, has tended to mislead discourse related to many deregulatory telecommunications policies, including network neutrality.
Therefore, in my view, the contribution of Brett’s work towards a more balanced policy discussion of governance of infrastructures would be further strengthened by juxtaposition of his functional approach to infrastructure resources with a more carefully delineated (and accurate), functional approach to the various bodies of law that have developed thus far to address varying forms of infrastructure access problems.
April 25, 2012 at 2:57 pm
Posted in: Administrative Law, Economic Analysis of Law, Infrastructure Symposium, Politics, Symposium (Infrastructure)
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Responses (2)
Brett Frischmann - April 25, 2012 at 5:33 pm
Barbara,
Thanks very much for the comment. In order to focus on the function of nondiscriminatory access, I do sidestep a detailed discussion of (1) the historical origins of various nondiscrimination rules and (2) the full panoply of legal regimes that have arisen over time in different sectors to deal with various access problems (e.g., universal service). To execute the “sidestep,” my discussion of (1) and (2) is quite brief and I may conflate legal regimes in a manner that may be confusing. Specifically, in the communications chapter you cite (p. 218) and other chapters where I discuss common carriage (e.g., p. 103-05), I deliberately refer to “common-carrier–style” obligations to capture a broad category of rules requiring nondiscriminatory access for customers (broader than common carriage), and in doing so, I may conflate some legal categories in ways that are unclear to someone looking for careful delineation of those legal categories. Again, my goal is to focus on the functional role of nondiscrimination rules across legal regimes. That said, I appreciate your point and why it is important to pay attention to the legal categories in various contexts. (By the way, I recognize that common carriers are not the same as public utilities and that there is some confusion on this point; in fact, I state this on p.103 in note 23 and cite your 2003 piece.)
You are right to emphasize that improving the policy discussion of infrastructure governance requires more than I can tackle in my book and that one important piece of the puzzle is rigorous, comparative analysis of governance regimes that address various access problems in different infrastructure contexts. That sounds like an excellent book project … Fortunately, you (and others) have paved the way … [Barbara, you should have plugged your work here! See Barbara Cherry, Utilizing “Essentiality of Access” Analyses to Mitigate Risky, Costly and Untimely Government Interventions in Converging Telecommunications Technologies and Markets, 11 CommLaw Conspectus 251 (2003).
Also, on the historical origins of various nondiscrimination rules, see Barbara Cherry, Misusing Network Neutrality to Eliminate Common Carriage Threatens Free Speech and the Postal System, 33 N. Ky. L. Rev. 483 (2006). And you also published one or two articles in 2008 that address this topic, right?
Barbara A. Cherry - April 26, 2012 at 8:26 am
Brett,
The analysis in your book is based on a functional role analysis of infrastructure resources — and careful delineation of the underlying terms is critical for the reader to understand both your framework and how it is applied. Hopefully, in citing or discussing your work, others will do so accurately — and it can be challenging to do so with the clarity that you have put into your analysis.
Likewise, my analysis of the functional role of different bodies of law that developed to address varying forms of access problems also relies on careful delineation of concepts. I’m just pointing out that, in my view, your use of the term “common-carrier-style obligations” reinforces the tendency to conflate the concepts of common carriage and public utilities – concepts I have tried so hard in my own research to uncouple- and thereby provides yet another potential secondary source to cite in support (by those benefiting from the conflation in policy debates).
Overall, however, I think your analysis outlining the functional role of infrastructure resources is a very important contribution!
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