Back to the Future: How Transportation Deregulatory Policies Foreshadow Evolution of Communications Policies

The legal regulatory regimes for communication technologies evolve with technological, economic, and social change. In the United States, the evolution of the legal regulatory regime for the telecommunications sector is following a trajectory breathtakingly similar to that already traversed by the transportation sector. As both sectors provide infrastructures essential to the nation and share similar economic attributes of networks, technological evolution within each has generated many of the same core issues. By recognizing this historical reality, we can tap valuable experience in transportation policy to better inform prospective policy change in telecommunications under intermodal competition. In this way, future telecommunications policy need not be radical (whether intentionally or not) nor totally untested, thereby enhancing its potential for sustainability. The efficacy of such a comparative historical evaluation is, however, dependent upon the starting point of analysis. This paper asserts that many other scholars’ analyses proceed from an inappropriate temporal point in legal history, thereby masking an appropriate understanding of what legal regimes the period of “deregulation” is evolving from and transforming to. As a result, such analyses have often mischaracterized the evolution of the transportation legal regimes and thereby the implications for telecommunications deregulatory policies. In so doing, such analyses have tended to