The Common Law in Cyberspace

Wrong in interesting ways, counts for high praise among academics. Peter Huber’s stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications Commission (FCC) has warped telecommunications markets, hindered technological advances, and violated constitutional rights. Huber blames the inherent nature of “commission law,” which he likens to Communist commandand- control economics: “rigid, slow, and – despite all the earnest expertise of bureaucrats – ignorant” (p. 8). Reforming the FCC is thus not an option; rather, it “should shut its doors, once and for all, and never darken American liberty again” (p. 7). What would replace the FCC? Market processes and common law courts. Rather than licensing access to the electromagnetic spectrum, Huber would sell it, dezone it, and leave private parties to determine its best uses (pp. 71-76). He regards price regulation of telecommunications services as inevitably and thankfully doomed by protean technologies and increasing competition (pp. 117-29). In place of the universal service subsidy, Huber counts on market forces to provide cheap basic access just as they already provide cheap fast food (pp. 130-41). The FCC sets technical standards quickly but incorrectly; “[c]ompetition delivers real standards more slowly but far more robustly” (p. 161). The telecommunications industry will deliver these and other triumphs, claims Huber, once it escapes from “commission-law.”