From Behind the Veil of the Unknown: Justice and Innovation in Telecommunications

Abstract

The framework developed in John Rawls’ landmark A Theory of Justice provides a basis for framing and responding to contemporary and future debates in telecommunications. This framework, when coupled with the refinements suggested in this paper, brings several crucial benefits to the debate concerning telecommunications, regulation and innovation. First, it provides a frame of reference that is larger than a traditional competition law analysis. This is important for examining issues in the provision of broadband services, for example, because in many countries historical concerns relating to monopoly and market power for broadband services have significantly receded but have been replaced by different concerns in an environment marked by network pluralism and competition. The framework identified in this paper provides a basis for identifying and responding to the regulatory concerns that remain after competition. In particular, as new communications services become arguably essential to participation in society and the economy, a Rawlsian framework provides a basis for making regulatory decisions about those services – in a manner that transcends the limitations of a traditional competition law approach. Equally crucially, the framework tells us what not to regulate. Second, a Rawlsian framework can make a productive contribution to current and future debates concerning telecommunications services including the so-called network neutrality debate. Indeed, a key benefit of a Rawlsian approach is that it provides a more sophisticated analytical focus, and more nuanced remedies, than those advocated in the more strident strands of the network neutrality literature, for example. Third, specifying a theory of justice to animate and guide an approach to regulation is frankly pragmatic. An articulated theory of justice provides guidance to regulators, to the regulated, and to consumers, as to what governments are likely to be concerned about, why, and how those concerns might be remedied. A principled approach to new problems in telecommunications, supported by an explicit theory of justice, is vastly preferable to an approach founded on diffuse notions like the “public interest”, “convenience and necessity” and other traditional formulations of public utility-type regulatory mandates. This paper attempts to make a small contribution by providing a principled framework to support the regulation of new and unknown risks, in a just manner.