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Brett Frischmann’s Contribution to Policy Debates Regarding Governance of Infrastructures

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2 Responses

  1. Brett Frischmann says:

    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?

  2. Barbara A. Cherry says:

    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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