Edited by Gerald R. Faulhaber, Gary Madden and Jeffrey Petchey
Chapter 1: Challenges of Institutional Governance for Network Infrastructures: Reinstitution and Expansion of Legal Innovations
1. Challenges of institutional governance for network infrastructures: Reinstitution and expansion of legal innovations Barbara A. Cherry INTRODUCTION Recent experience under deregulatory policies reveals an acute challenge for institutional governance to support sustainable policies.1 More specifically, government must develop greater regulatory resilience, i.e., create regulatory structures and policy that are more adaptive to the complexity and increasing pace of technological innovation and ensuing economic and social changes – that must also be constrained by sustainability of the rule of law.2 The financial crisis in the US and its global diffusion are illustrative of the unpredictability and rapidity with which market instabilities can appear and cascade to potentially catastrophic levels, and for which the difficulties of institutional governance are already apparent.3 This chapter examines how recent deregulatory telecommunications policies, particularly those related to broadband and the Internet adopted in the US, may be creating conditions for similar future instability. In so doing, it stresses important legal innovations – encompassing both bodies of law and governance structures – that evolved in the 19th and early-20th centuries to address certain societal and economic problems arising from technological innovations in network infrastructures. Unfortunately, many of these legal innovations have been dismantled under US deregulatory policies during the latter portion of the 20th century, reintroducing historical problems and associated instabilities. Societal demand for broadband infrastructure that is widely available, affordable and reliable will create pressure for reinstitution 1 2 Regulation and performance of communication and information networks of important aspects of common carriage principles that successfully provided the...
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