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.

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.

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.

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.