This presentation looks at one aspect of the phenomenon of the 'decentred' state - the delegation of rulemaking functions by legislatures to self-regulatory bodies. Drawing on the experience of the Communications Alliance (the Australian telecommunications sector's 'peak' self-regulatory body) formulating codes of practice, it explores if the confidential 'consensus' rulemaking process used by a number of industry sectors accords with the rule of law. It asks if the absence of certain 'core' rules that have an indirect effect on deliberation when legislators and administrators make 'law' (e.g., conflicts of interest, venue neutrality) enables industry to override consumer and public interest considerations.

Since the adoption of the 'American Recovery and Reinvestment Act of 2009' (The Recovery Act of 2009), which required the Federal Communications Commission (FCC), the primary communications regulatory body in the US, to submit a National Broadband Plan (NBP) to Congress, the US communications regulatory debate has been dominated by discussion of how to ensure all Americans have access to broadband capability which is affordable and fully utilised. However, other technological changes have also coloured the regulatory landscape in recent years: the development of IP-enabled services, technological convergence and the impending wireless revolution. To understand the regulatory issues raised by broadband, IP-enabled services, convergence, the shift to a wireless society and the response of the US to date, it is important to understand the existing legislative and regulatory framework, how it developed and the commercial context in which the framework applies.

The principle of consensus is increasingly advanced as a potential solution to the normative difficulties raised by globalization and the decentred state - the procedural and substantive legitimacy of industry-generated rules and the accountability of private actors in the rulemaking process. To date, however, there has been little empirical exploration of the political dynamic of industry rulemaking or evaluation of whether consensus responds adequately to it. This working paper begins that process by using the development of the Consumer Contracts Code in 2004 by a working committee formed under the auspices of the Australian Communications Industry Forum (now called the Communications Alliance), the 'peak' self-regulatory body within the Australian telecommunications sector, as a case study. While recognising that further empirical study is necessary, the working paper concludes by arguing that consensus may not respond adequately to the underlying politic.

The Australian Competition and Consumer Commission (ACCC) has proposed an important change to the access pricing principles it applies to five of the six fixed-line services declared under Pt XIC of the 'Competition and Consumer Act 2010' (Cth) (CCA), formerly known as the 'Trade Practices Act 1974' (Cth) (TPA). In its 2010 review of the 1997 telecommunications access pricing principles for fixed-line services (the proposed pricing principles), the ACCC announced it no longer has the intention of using the so-called "TSLRIC+ methodology" to determine if an access price is cost-based. Instead, it proposes the use of a building block model (BBM) methodology, which will, among other things, involve the calculation of an initial value of Telstra's regulatory asset base (RAB) using a depreciated actual cost (DAC) approach. Although any pricing methodology the ACCC adopts is, strictly speaking, non-binding, the proposed change will, as a matter of practice, inform the ACCC's thinking when exercising its new power to make up-front access determinations under the recently enacted 'Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010' (Cth) and will mark a departure from the cost-based standard which has been the worldwide industry norm for fixed-line access services since market liberalisation in the 1990s.

As part of its wide-ranging reforms to the telecommunications regulatory regime before the introduction of the National Broadband Network (NBN), the government has proposed modifications to the anti-competitive conduct provisions of Pt XIB of the 'Trade Practices Act 1974' (Cth) (TPA). In contrast to the extensive modifications to the access provisions set out in Pt XIC, the changes proposed to Pt XIB in the 'Telecommunications Legislation Amendment' ('Competition and Consumer Safeguards') 'Bill 2009' (Cth) (the Bill) are modest, given the more market intrusive options considered in the government's April 2009 consultation document and the sustained level of criticism of the weaknesses of Pt XIB by both competitors to Telstra and the Australian Competition and Consumer Commission (ACCC), the body responsible for enforcement of Pt XIB.

On 29 July 2011, Telstra submitted a structural separation undertaking (SSU) to the Australian Competition and Consumer Commission (ACCC) for approval under s 577A of the 'Telecommunications Act 1997' (Cth) (the Act). In accordance with the requirements of that provision, Telstra gave a commitment that it will structurally separate from 1 July 2018 (defined in the Act as "the designated day") - the date on which it is anticipated that the construction of the National Broadband Network (NBN) and the migration of Telstra's customers to the NBN will be completed in accordance with the draft Migration Plan. In addition, Telstra proposed certain interim arrangements to ensure transparency and equivalence in relation to the supply of "regulated services" to its Wholesale and Retail Business Units which will apply until structural separation occurs. Although the ACCC stated in its August 2011 discussion paper on the SSU that Telstra's commitment to structurally separate meets legislative requirements, it expressed significant reservations about the interim arrangements Telstra set forth and identified other weaknesses of the SSU, including the failure to include measures enabling the ACCC to monitor Telstra's compliance with the SSU after the designated day. Industry participants have also been critical of the SSU's interim arrangements which fall short of functional separation and are seen by many as only a marginal improvement on the operational separation measures in place since 2005.

In March 2016, the Australian Communications and Media Authority (ACMA) approved amendments proposed by the Communications Alliance, the Australian telecommunications sector's self-regulatory body, to the compliance and monitoring arrangements for the Telecommunications Consumer Protections Code (TCP Code). The compliance and monitoring arrangements set out the steps that suppliers of telecommunications services to residential and small business customers (suppliers) must take in order to comply with the substantive obligations of the TCP Code - the provisions dealing with consumer sales, service and contracts; billing; credit and debt management; change of suppliers; and complaint handling. The Australian Communications Consumer Action Network (ACCAN) has broadly welcomed the amendments. However, it has expressed disappointment that there remains no obligation requiring Communications Compliance (CommsCom), the industry body responsible for monitoring TCP Code compliance by suppliers, to disclose information about the customer service performance of each supplier to the public.

This chapter focuses on the regulation of the provision of telecommunication Services and the operation of telecommunication networks in the US. It begins by giving a brief history of the American approach to the regulation of switched, cable, Wireless, satellite, broadband, and IP networks and services. It then provides an overview of the numerous governmental bodies involved in the regulation of the US telecommunications market. It summarizes the licensing requirements under the communications Act of 1934, and briefly explains the US approach to certain key regulatory issues: access, interconnection and related measures, including network neutrality, spectrum management, universal service, the application of competition law to the sector, and communications privacy.