Planning for the future
I’m a Comcast internet access customer, and I don’t have a television here in Ann Arbor. There, I’ve said it. I remember thinking when other people used to say they didn’t have televisions that they were just being sanctimonious cranks. I swear I’m not being a sanctimonious crank.
With a good internet connection, and a big/friendly enough monitor, you don’t need to subscribe to cable content any more. I was thoroughly content watching the convention this week on C-SPAN. But I was watching C-SPAN.org - and I was also following the Twitter feeds of thousands of people. Plus I was watching the comments on DailyKos. It was the most convivial, richest way to watch a major speech that I have ever experienced.
Having cut all of those cords (no landline phone either), I’m worried about a future in which Comcast gets to say that I’ve used “too much” bandwidth and have to be cut off. That future is coming on October 1, when Comcast will implement a 250 GB monthly cap. (Hat tip: Karl Bode.)
Comcast sees a future in which people use the internet to send a few emails or look at a few web pages. They don’t want people watching HD content from other sources online, because that doesn’t fit their business model. So rather than increase capacity, they’d rather lower expectations. 250GB/month is about 50-60 HD movies a month, but we’re not necessarily going to be watching movies. Maybe we’ll be doing constant HD video sessions with other freelancers, or interacting with big groups all over the world in real-time. Who knows what we’ll be doing - it’s all in the future.
But rather than build towards a user-powered future, Comcast wants to shape that future — in advance — in its own image. The company is not offering additional bandwidth packages to people who want more. They just want to be able to shut service off at a particular point - a point of bandwidth use that most people aren’t using right now, so that they won’t be unhappy. By the time we all want to be doing everything online, Comcast users (the company hopes) won’t expect anything better.
Here’s a comment that makes the competitive picture clear:
Q. How does this factor in with users of your Digital Voice service? On average how much bandwidth does that service take up?
Bill G. [Comcast]: Digital voice has no affect [sic] on this, the 250 gig cap is allotted for just downloads
So Comcast’s own services won’t be limited, just downloads of other peoples’ services and material. And don’t get us started on those asymmetric uploads.
Comcast’s cap is being widely discussed, which is a good sign. Building in an assumption of scarcity rather than building out better access - that’s strange.
What business doesn’t want to build capacity to serve the future? I’ll tell you — listen, now — a business that’s confident it can plan for the future it wants. A business whose plans don’t include serving as a neutral transport platform for other peoples’ material. A business that is focused on maintaining scarcity.
Boundaries
It’s the ad hoc nature of U.S. communications law these days that gets depressing. It seems only federal courts can help - except when they refuse to get involved.
Four very quick snippets of stories to watch:
1. Warshak. The Sixth Circuit said back in June that people have a reasonable expectation of privacy in email sent through ISPs, and so the loose-and-low statutory procedures for government access to these emails (found in the Stored Communications Act) have to be measured against Fourth Amendment standards. The government had used those loose-and-low procedures to obtain a court order giving it general access to Warshak’s emails stored by ISPs - and the government didn’t tell Warshak it was doing this for a year. That failed the Fourth Amendment test, according to the Sixth Circuit.
Although the particular loose-and-low procedure (a one-sided appearance before a judge stating “reasonable grounds” rather than probable cause, the Fourth Amendment requirement) has been declared unconstitutional, there are still plenty of other ways for the government to get access to these materials if they need it. They can get a warrant based on probable cause, or go in front of a judge and let the search-ee know that they want access and are asking for a subpoena. (Meanwhile, judicial steps can be taken to avoid having the emails disappear.)
But that’s not enough for our government, which wants to avoid any additional oversight or notice requirements in connection with access to email.
Everything’s in email - a complete dossier of our communicative lives is in email. What could be more personal? Years ago, we agreed that people had a reasonable expectation of privacy (triggering Fourth Amendment protections) in phone calls - why would we treat emails differently? But our government has successfully sought rehearing of the Sixth Circuit case by the full panel of judges, and it’s likely we’ll see some clever fight over the “ripeness” (liveliness, concreteness) of the claim that avoids the merits of the dispute but keeps the status quo of easy access in place.
Ripeness is a sophisticated way of saying to the courts: “Move along here, now, nothing for you to work on.”
2. Hepting. That’s the name of the lawsuit addressing the NSA surveillance scandal. At the direction of our government, telecommunications companies copied all online transmissions crossing their network — wholesale — and sent that copy on to the NSA for further processing. This likely violated the Fourth Amendment (clearly the telecom companies were acting on behalf of the government), the Telecommunications Act, the Wiretap Act, the Foreign Sovereign Immunities Act, the Stored Communications Act, and state unfair competition/deceptive practices laws. At the least.
Right now, Congress is considering whether to grant retroactive immunity to the telecommunications companies that participated in this warrantless vacuuming up of all possible communications. A Senate panel has voted against immunity today — a welcome development. Sen. Specter (R-PA) has argued that Hepting (and cases like it) need to proceed. “[C]ourt cases may be the only way Congress can learn how far outside the law the administration has gone in eavesdropping.” Specter wants to substitute in the government for the telcos, though, which seems problematic. Why should citizens have to pay for this illegality? A House bill on the same subject already rejected immunity.
Retrospective immunity is another way of saying to the courts: “Move along here, now, nothing for you to work on.”
3. Title I and Chevron Deference. At the same time all communications have become IP-based, the FCC has manuvered regulation of those communications out of the scope of its own delegated power from Congress. Instead of keeping things within Title II of the Communications Act (the home of some heavy-handed regulation, to be sure, but at least there were guideposts for the FCC’s action), the Commission has declared that just about everything having to do with the internet and access to the internet is within its power under Title I of the Act.
Title I says nothing. So the Commission has enormous discretion to do whatever it wants - it’s a swamp, a murky, bottomless realm of unaccountable action, that Title I.
Here’s the place where (unlike Warshak and, potentially, Hepting) the courts have deferred to the broad exercise of communications discretion. Somewhat enigmatically, Justice Thomas in 2005’s Brand X decision said:
Information-service providers . . are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.
Justice Scalia thought that was weak, and said so:
This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.
I’d like to see another case that makes a court address the scope of the Commission’s power over the internet — surely the Commission can’t act without some kind of delegated authority. Surely there needs to be a guidepost in the swamp somewhere.
Right now, a combination of judicial deference and Commission brashness is keeping the courts - and Congress - from getting involved.
4. 70/70. Title VI of the Cable Act says:
[A]t such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources.
We know that the Commission plans to say this “70/70″ trigger has been met. It’s true that cable has enormous market power and the empirical step makes sense.
But “any rules necessary”? I’d be worried, if I were the cable industry. Again, the issue here is a complete lack of boundaries. Not even a hint of limitations.
And, again, the argument from the Commission will be: “Move along here, courts, nothing for you to work on.”
==
These are all separate stories, each with its own history and set of acronyms. They all share, though, a certain open-endedness and ad hocery that is distressing. Not that every detail needs to be written down in legislation - but some checks, some examination has to happen at some point, provided by some institution that isn’t pressing for action.
Why the digital transition
One of my students asked whether his television set, connected to a cable system but with no set-top box, would be able to receive digital television after February 17, 2009.
So I decided to try the experiment of being a consumer with this question. I was happy to see the NCTA has this site with information about how this will work. And this:
The good news for cable customers is
that the digital transition should be easy. Thanks to a compromise
adopted by the FCC in September 2007, cable companies will carry the
main digital signal of “must carry” commercial broadcast TV stations
and will duplicate that signal into analog format so that all channels
can be viewed on any older analog TV sets connected to cable.
That’s putting a bright spin on a mandate that cable systems do the work of transforming digital broadcast signals into analog so that a majority of
the people with cable subscriptions will be able to continue to watch all of their local
broadcast stations on analog TVs until at least 2012. (I’m not sure whether cable systems will be allowed to charge for offering the analog version of the digital signal.) Also, see the words “main digital signal”? The FCC agreed to allow cable operators to remove sub-channels from the
broadcasters’ digital signal so as to allow as much compression of the signal as possible.
But if you’re not connected to cable this could be tricky. The first converter box has been approved [site requires free registration], but it costs $69.99. Lots of hearings are scheduled to examine how on earth consumers will hear about the digital transition and be allocated vouchers for these boxes.
Why are we going through all of these conniptions with broadcast, when the broadcasters themselves realize that they won’t survive unless the cable systems carry their signals? When their sub-channels won’t be carried? And when broadcasting is becoming just a subset of online content anyway?
The answer is that over-the-air television is free (in that you don’t have to pay a subscription fee, even you do have to spend time watching the ads), and no one wants to be the politician who strands people without a television signal.
Soon we’ll all be in virtual Google-worlds…
More on peering
I remember being told three years ago that, in general, internet backbone issues weren’t really a subject for regulatory involvement, and didn’t need to be. Although the last mile was a problem, the upstream fat-pipe relationships weren’t - they were all competitive and thriving. Or at least that’s what people thought.
Over the last couple of days I’ve been looking around trying to figure out what the facts are about backbones and peering. It seems that we don’t even know what we don’t know (”we” being the public). It’s an interesting area. Wikipedia has a good article on peering, but I can’t find a visualization of data (or even the data itself).
CAIDA makes clear, via kc claffy, that data about what happens on backbones is not available to us or, more importantly, to researchers. Gordon Cook says that everything about prices for backbone carriage is secret.
Why does this matter? Perhaps this is too simple, but if large ISPs (including traditional incumbent telephone companies, here or in other countries) have the market power to refuse to carry the traffic of smaller/competitive ISPs, or to condition the carriage of this traffic on agreement to particular discriminatory policies, then the neutrality problem just goes up a level. It ceases to be a “last mile” problem and becomes a backbone problem. If all arrangements carried out by large carriers are private and secret, then there isn’t even a platform for a policy discussion - traffic carried by (say) nondiscriminatory, smaller ISPs will just go more slowly.
In a way, the backbone issue (if there is one) potentially bears the same relationship to “network neutrality” that government ownership/control of spectrum bears to our current scuffles over spectrum policy: we may be missing an enormous part of the issue without knowing it. It’s as if we’re trying to describe the “issue,” the small vessel of points and counterpoints, without seeing that the vessel is housed in a gigantic, fortress-like, and mostly secret building.
(In America, as in many other places, our government controls a huge amount of spectrum without paying for it or even carrying its value on its books. Or even making precisely clear how much it really controls.)
So maybe I’m misunderstanding the importance of this issue, or maybe there really is a competitive backbone marketplace out there. But I wish there was more information about this. It seems fundamental.