Flapping my wings hard to keep up with Doc Searls

I've said in other places that Doc Searls is one of the best lawyers I know. Likely because he's a philosopher who simply had no need of legal pedagogy. He, like the sacred Crane, flies right over the top of the Himalayas while the rest of us, lawyers in particular argue over routes, fight over which guides will take us, or just dig right into solid rock cursing the difficulty of it all the entire time.

So I called him late the other night all excited that the FCC was finally waking up to the fact that the entire world had changed and perhaps it needed to catch up. Doc, which characteristic honesty, said, Erik, explain this. I hear you, but make it real. In other words, "use your wings man."

So here goes:

What we need to help the FCC realize that the world has already transitioned to the Internet (they call it "IP-enabled" b/c hey, lawyers like me make up ridiculous names for simple stuff) from the "circuit switched" world (remember those telephones you used when a kid? Well, the phones changed, but neither the network nor the regulation caught up; we've been stuck for a good 75 years in the same legal echo chamber).

Help the FCC. They can do it, We can Help.

We need to harmonize the legal and monetary systems under which all of it interconnects. That's the real issue.

Anything that is connected matters.

At the physical layer ther are all sorts of miles but sitting here on my couch with my blackberry dogs and kids asleep on a frigid colorado night, it is a zero distance technology anyone may use. (I wrote this last night on my blackberry to a list of industry insiders, academics, regulators, all all other sorts of Pirate Radio types.)

What they - anyone - lacks are the practical legal means of making a difference. It costs way too much to really impact innovation at the physical layer. We must reduce those costs. Regulation drives about 90 percent of the costs, but that doesn't mean no regulation. It means fix it. We, the People, must fix it. Remember, its about the Internet, not about someone else's product.

1. Federalize all interconnection rights across any modality.

2. Quit pretending there is loop, middle or long mile. There is just network. Only regulation makes these distinctions into insurmountable financial hurdles.

3. Get geography out of rates. The world is very flat. Get over it. Billing systems waste enormous money as do disputes. Intercarrier compensation (i.e. "access charges" - those per minute rates carriers attach to voice telephone calls) is a slush fund that washes out of consumer pockets right past network and into executive and shareholder pockets.

4. There is no longer any such thing as telecom, cable or broadcast except in regulatory silos gamed by business-driven technology models whose resulting incentives are to prevent and stall evolutionary change while nations like China make fools of our incessant fighting over who subsidizes which buggy whip.

5. Fund infrastructure. Fund Ambient connectivity

(Bob Frankston's term). Interconnect every other layer when that layer is used for transmission. Balance market power with antitrust - real antitrust- and at every layer ...

6. Jurisdiction based upon endpoints is a bygone and irrelevant distinction for purposes of pure network regulation.

(This is the concept that says when you call across the street the call is "local" and when you call "long distance" it costs more. This is an illusion. The costs are below millionths of a penny per minute.)

The internet is infinite. There is no telling how many endpoints any data may or may not have, voice or otherwise over the course of time. If, however, bad things happen then deal with jurisdiction using known jurisdictional and venue tests. They are in the FRCP (Federal Rules of Civil Procedure) and every state's rules of civil procedure. International Shoe still works because poeple, not bits, not software do stuff. You never sue a hammer. You sue the person who did (or did not) do something with it. Same is true of connunication networks.

7. Regulate market power but focus first on taking the political power out of owning the physical infrastructure over which the market rides. Flatten it, make it the commodity it wants to be, and unleash real innovation. We will know we are there when there is no need for 20 DC think tanks to tell us life is great. We will know when you don't need a team of lawyers to launch a WiFi network, build and operate an open data-only cellphone, or do 10,000 other things we can do with technology were the law not a minefield for any innovator.

Simplify, unify, homogenize, commoditize and prosper.