Maintaining a culture of innovation and leadership in technology are two key principles that many believe will speed the recovery of the US economy, develop good jobs, and secure on-going success.

Perhaps the greatest modern success story of US innovation and leadership is the open Internet and the world wide web. The Web was virtually unknown to many citizens as recently as the mid-1990s, but in less than 20 years it has come to be part of nearly every aspect of daily life – buying goods, selling goods, keeping in touch with friends and neighbors, obtaining news, the list goes on.

The openness of the Internet, which has operated effectively under “common carriage” principles, has enabled consumers to control their communications with little interference from network operators. Privacy protections have evolved and continue to evolve to protect consumers as well. Businesses can easily and inexpensively establish a Web presence through competition in the “domain registration” (i.e., Internet address), where a number of companies offer inexpensive web hosting and registration services. As a result, companies as diverse as Amazon, eBay, and Google have established large, thriving businesses that benefit consumers, and have enabled legions of other businesses to thrive and create jobs.

Maintaining open communications systems and keeping regulations up to date are key elements of enabling innovation and maintaining US leadership in a digital economy. As technology evolves, on-going application of common carriage principles will continue to keep the consumer in control, and regulations need to be kept up to date.

Text messaging (a/k/a “SMS”) provides a useful case study. Nearly unheard of a decade ago, US consumers now exchange approximately six billion SMS messages a day. Consumers use SMS to communicate with one another, and many businesses use SMS to communicate with consumers.

The “common carrier” status of SMS is the subject of debate, and the FCC has yet to clarify the extent to which SMS is a “common carrier” service. As a result of this “regulatory lag,” network operators (e.g., Verizon Wireless and AT&T) take the position that they may block SMS messages at will, censor the content of SMS messages, and charge business and consumers any price they like for exchanging SMS messages. Due to this purported “regulatory void,” plaintiffs lawyers claim that 20 year old regulations on “junk faxing” (who faxes today?) apply to SMS messages, even though no one used this technology then.

All of this uncertainty puts costs on small businesses, limits job creation, and deters investment in companies seeking to innovate with SMS. Other innovative applications involving mobile payments and the like face similar difficulties.

As we move off wires and into the cloud, common carriage principles and maintaining updated regulations will continue to be key to allowing innovation to emerge and for the US to maintain its position as a world leader in communications technology.