The Telecommunications Economy and Regulation as Coevolving Complex Adaptive Systems: Implications for Federalism

I. INTRODUCTION II. LIMITS OF THE PRESENT POLICY PARADIGM FOR SUSTAINABLE POLICIES III. TOWARD A NEW PARADIGM FOR SUSTAINABLE POLICIES A. General Constraints and Properties of Sustainable Policies B. Relations of Telecommunications Policy to Complexity Theory 1. Complexity Theory 2. Economic Sectors and Policymaking Systems as Coevolving Complex Adaptive Systems C. General Implications for Sustainable Telecommunications Policies from a Complex Systems Perspective IV. FEDERALISM AS AN INNOVATIVE AND DYNAMIC POLICYMAKING SYSTEM V. HISTORICAL EVOLUTION OF FEDERALISM IN THE U.S. VI. PRESSURES FOR A NEW FEDERALISM MODEL IN THE U.S. VII. USING COMPLEXITY THEORY FOR EVOLUTION OF A NEW FEDERALISM MODEL A. Recognizing Federalism as a Patching Algorithm B. Modifying Federalism for Environmental Regulation C. Comparing Models of Policy Reform D. Using Adaptive Decision-Making Tools for Policymaking in General VIII. TOWARD A REVISION OF FEDERALISM FOR SUSTAINABLE TELECOMMUNICATIONS POLICY I. INTRODUCTION In numerous articles and papers, I have stressed in varying ways that sustainable regulatory telecommunications policies require simultaneous satisfaction of economic viability and political feasibility constraints, and that satisfaction of these constraints is becoming more challenging for regulatory regimes based on competition rather than monopoly. Some articles have examined the sustainability of specific regulatory policies, such as universal service, (1) rate rebalancing, (2) and the effects of detariffing on liability rules. (3) Others have broadened the scope of inquiry, looking at sustainability problems arising from fundamental attributes of the U.S. governance structure, (4) including efforts to retrench from public utility regulation (5) and to resist extension of common carriage obligations to broadband access services. (6) Throughout this research, I have sought to provide the foundation for a more general analytical framework for designing sustainable telecommunications policies based primarily on legal and economic analyses and incorporation of models and insights from the political science literature. Most recently, I have sought to further enhance this framework by incorporating insights from complexity theory. Within the general academic community, there is a growing recognition that complexity theory, originally developed in the physical sciences, may also be applicable to the social sciences. Complexity theory is based on the distinctive properties of complex systems and provides a different paradigm for understanding and interacting with complex systems. Complexity theory is already influencing research concerning sustainable environmental policies, (7) and recent research is examining its potential application to communications policies. (8) In research foundational to this Article, Bauer and I assert that complexity theory should be used to improve our understanding of the requirements for sustainable telecommunications policies. (9) More specifically, Bauer and I assert that if the telecommunications sector and the legal/policymaking institutions are viewed as coevolving and complex adaptive systems, then there are important implications for regulatory policy. One implication is that law and regulation will have a diminishing capacity to achieve specifically desired outcomes but will retain influence over possible, usually unpredictable, trajectories of sector performance. Instead, greater focus must be placed on how to design policies and policymaking processes that are more suitable for interacting with, interpreting, and responding to the telecommunications sector over time. In other words, greater attention must be paid to the adaptability of policies and the policymaking processes themselves as they evolve with the telecommunications sector. …