Regulatory Design Choices in Communications Policy – Investment in Infrastructure and Net Neutrality in the Usa and the Eu
Abstract: This contribution focuses on three dimensions of the design of regulatory policy. First of all, the substance of laws and regulations can be articulated around historical, technological, economic or functional concepts. Secondly, the enactment and enforcement of laws and regulations can be centralized or decentralized. Thirdly, enforcement can be entrusted to a regulatory agency or left to the executive branch. This contribution examines communications policy in the two largest regulatory spaces, the USA and the EU, identifying the design choices that were made in the last major policy revisions, in 1996 and 2002 respectively. The discussion of infrastructure investment and network neutrality is used as a case study to highlight similarities and differences in regulatory design, and their consequences for policy development. The USA traditionally chose for a technologically-based legislative framework, with strong, centralized enforcement in the hands of a regulatory agency (the FCC). The last major reform, in 1996, did not significantly stray from these design choices. The infrastructure investment and network neutrality debates highlight how the FCC has sought to free itself from technological shackles, with limited success. At the same time, the FCC has been able – willingly or not – to avoid Congressional intervention to legislate on network neutrality. In the EU, the 2002 regulatory framework was expressly meant to be based on functional and economic concepts, as opposed to technological ones. At the same time, it relied on decentralized enforcement by regulatory agencies, albeit that the regulatory agency model is not firmly established in Continental polities. The infrastructure investment and net neutrality debates highlight the downsides of the EU regulatory design.
