Once again, we commend the Committee for undertaking its sustained effort to review and update the increasingly anachronistic Communications Act. This update is not only timely but necessary, given the rapid rate of technological change, and the concomitant change in communications and information services markets, since Congress last updated the law with the Telecommunications Act of 1996.

We also commend the Committee for using the Fourth White Paper to focus specifically on interconnection. We agree with the Committee's recognition that the interconnection of communications networks "has been at the heart of communications policy" for a century, and further, that it should be an integral component of any Communications Act update. As twentieth-century communications networks give way to the all-IP-based networks of the future, there is still a useful role for a government regulator to play in overseeing the interconnection of the various privately-operated networks that comprise the nation's communications infrastructure.

But going forward, this role should be noticeably different - presumptively less interventionist - in scope than it is under the current Act. That conclusion is consistent with the transition to more competitive communications and information services markets. Rather than overseeing enforcement of a general duty to interconnect, as the current Act requires, the law should presume that interconnection agreements between IP-based networks will be negotiated on a voluntary basis, as they have been throughout the Internet's history with minimal disruption.

The Commission should intervene only upon a finding that denial of interconnection poses a substantial, non-transitory risk to consumer welfare, and that marketplace competition is inadequate to correct the problem. And in those rare instances when intervention is necessary, the Commission should solve the impasse by using some form of dispute resolution mechanism, such as mediation or some form of arbitration, rather than by resorting to current rate case-like adjudicatory procedures. This revised interconnection mandate is consistent with our view of the FCC's future role, not as regulator of monopolistic common carriers subject to public utility obligations, but rather as a sector-specific competition authority protecting consumer welfare in a competitive and dynamic marketplace.

Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a public member of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.

Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 150 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the editor of the new book, "Communications Law and Policy in the Digital Age: The Next Five Years." He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform. And he is the editor of the book, New Directions in Communications Policy and co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? and Communications Deregulation and FCC Reform. 

Biographical sketches for members of the Free State Foundation's Board of Academic Advisors are here. 

The Free State Foundation is a non-profit, independent Section 501(c)(3) free market-oriented think tank.