Technology Convergence and Federalism: Who Should Decide the Future of Telecommunications Regulation?

This Article critically examines the division of regulatory jurisdiction over telecommunications issues between the federal government and the states. Currently, the line between federal and state jurisdiction varies depending on the service at issue. This compartmentalization might have made sense fifteen years ago, but the advent of technology convergence has largely rendered this model obsolete. Yesterday’s telephone and cable companies now compete head-to-head to offer consumers the vaunted “triple play” of voice, video, and internet services. But these telecommunications companies are finding it increasingly difficult to fit new operations into arcane, rigid regulatory compartments. Moreover, services that consumers view as near-perfect substitutes-such as cable and satellite television-face different regulatory treatment largely due to historical accident. This Article proposes that Congress instead allocate jurisdiction in a platform-neutral manner based upon the relative strengths of federal and state regulators. The federal government is best positioned to regulate economic issues that, if left to the states, would generate substantial spillover effects and disrupt economies of scale. By comparison, state regulators are best qualified to make decisions that turn upon local knowledge. The Article recommends a hybrid model for consumer protection, whereby states bring local issues to the FCC’s attention, and the FCC adjudicates these issues from an appropriately national scope.