All posts in communications policy

Retrograde inversion

By On April 10, 2008 In communications policy, fcc, internet policy With 4 Comments Permanent Link to Retrograde inversionPermalink

Going backwards upside down. That’s what we’re doing with telecommunications policy in the U.S.

The Comcast affair should prompt a re-examination of many decisions the FCC, Congress, and the courts have made over the last few years. When the FCC reports on its reactions to Comcast’s activities, the right response will be “You’re asking the wrong question.”

“What is reasonable network management” isn’t the question we should be asking. Instead, we should be asking ourselves “Why do the dominant network operators always win?” We don’t need retrospective fault-allocation – instead, we need a prospective legislative/structural plan for digging ourselves out of the hole we’re in.

The relevant precedent for the Comcast fracas is not Madison River. Instead, it’s the history of Ma Bell. (Yes, I know Comcast is a cable company. I’ll connect the dots.) AT&T’s enormous market power, vertical integration, skill at using regulation to avoid competition, and opacity (no one could figure out what was actually cross-subsidizing what) led the Department of Justice to investigate and ultimately recommend divestiture of its local phone companies from the rest of its business. In approving that consent decree, Judge Greene made very clear that these local phone companies should continue to be nondiscriminatory, and should not be allowed to be in the business of controlling information — news services — made available across their lines using computers.

The Judge Greene principle (common carriage, no involvement in information provision) has been entirely subverted over the last few years. Assisted by a deregulatory FCC, a quiet Congress, and deferential courts, we’re now moving backwards.

When it comes to highspeed internet access, we’re back in the land of dominant providers (multiple, but dominant), uniform vertical integration, and opacity.

Rather than having proprietary “information services” be the exception to a general rule of common carriage, all forms of access to the internet are now “information services.” The FCC has morphed and stretched (and sometimes ignored – see CALEA) the definition of “information services” to cover all the forms of communication we now care about. Meanwhile, Congress has given almost no guidance and the courts have shied away from interfering (see BrandX). This is neither wise nor efficient.

So even if the Commission says something sharp to Comcast about what practices amount to reasonable network management, that will not be a victory. It will just be a beginning. We need a thoroughly revamped approach to communications law: a revised statute that treats internet access as the general communications network it was supposed to be (as the framers of communications law thought telephone networks should be); a revised approach to judicial review, embedded in that statute, that revitalizes the role of the courts in telecommunications law; and far better information about what network operators are actually doing.

The next Administration could make bipartisan progress on telecommunications policy, given how much interest there is in this subject around the country.  I know, it isn’t the Iraq war, but a better approach to this subject could conceivably help this country’s economic growth.

And at least we won’t be going backwards upside down.

Comparative internet law

By On April 8, 2008 In communications policy, google With 2 Comments Permanent Link to Comparative internet lawPermalink

Alan Davidson visited Yale Law School today, speaking to my Internet Law class and to a large lunchtime group.  Key takeaway for me:  the center of gravity of internet policy is not so much in Washington any more.  Discussions of Issues like ISP filtering and data retention are taking place in Europe with enormous energy.  There things we might take for granted here – like avoiding online content regulation, or the undesirability of using ISPs as private police – are actively considered.

At the same time, Alan points out, architectural constraints that we also used to take for granted, like “it’s too difficult to look at the packets that are crossing our networks,” or “we can’t know with any reliability where people are coming from who visit our sites” are melting away.

So it’s a time of tremendous upheaval in internet policy, and storm clouds are gathering over Europe (not to be too bombastic, but it does feel like that from here).

It was absolutely wonderful to have Alan here.  We need more comparative internet/telecommunications experts – I’m hoping that some of these terrific students will take up that challenge.

Weird boxes

By On April 7, 2008 In communications policy, fcc, internet policy With No Comments Permanent Link to Weird boxesPermalink

With the help of one of my colleagues, I’ve been going through the history of the Computer Inquiries and all of the regulatory muttering that goes into the “information services”/”telecommunications services” dichotomy.

What a strange story of subversion.

We started off, back in the 60s, with a real fear of dominant telephone companies manuvering/leveraging their way into data processing businesses.  So we (basically) cordoned off data processing as a separate business and kept the telcos out.

Then, about 20 years later, the telcos pointed out that they needed to use computers to run their managed networks, and so we let them into the (unregulated) data processing business on the condition that they operate these businesses using separate subsidiaries – at about the same time, we set up a distinction between “basic” transmission services and “enhanced” everything else, and solemnly declared that everything was either one or the other.  (That same distinction gets enshrined in the Communications Act as the “information”/”telecommunications” dichotomy.)

Then, about 20 years after that, we decided that internet access was an “information” service and so not covered by any nondiscrimination obligations.

What?

The entire early history of this basic/enhanced distinction was based on the premise that of course there would be common carriage transmission services – they’d always be around – and all we were doing was making sure that those carriers wouldn’t be able to leverage their position in society (and their market power!) into new markets.

Now we’ve got carriers with enormous market power, none of which provides naked internet access.  They’re all selling bundles of services. So competition for this access is mild at best – no one can compare prices and speeds across varying bundles.  The telcos are getting rid of copper.  There’s no regime of common carriage.  We have no nondiscrimination rules for any form of internet access at this point.

We took a distinction designed to retain the key role of common carriage and subverted it – all carriage is now proprietary and discretionary, because everything has been jammed into the “information service” box.  That box was created to shield a new industry from the depredations of an older one.  Now the older one has managed to get into the box itself!

The “data processing”/”new market” idea is completely lost.  The definitions in the 1996 Act of “information services” etc.  are now construed with care as magical/determinative language, with zero context or history.

It would be good to start over.

Google and the white spaces

By On March 24, 2008 In communications policy, internet policy, white spaces With 2 Comments Permanent Link to Google and the white spacesPermalink

The white spaces proceeding is the next big opportunity for experiments in alternative ways of providing wireless highspeed internet access. I’ve written about this here, here, here, and here.

When the DTV transition happens in Feb. 2009, channels 2 through 51 will remain allocated for television transmission.  Few of the nation’s television markets actually use 49 channels.  Indeed, most use less than half of that number.   The “white spaces” are these unused television channels, which amount to approximately 300 MHz of frequencies. According to Blair Levin, “[e]stimates vary, but most of the population (between 73% and 97%) lives in areas with access to 24 MHz or more of white space. Rural areas in particular, have a great deal of white space as they generally have fewer television broadcasters.”  Rules for the “white spaces” are now on the Commission’s agenda.

Rather than being sold at auction to the highest bidder, unlicensed spectrum is useable by anyone with wireless equipment that has been certified by the FCC for unlicensed frequencies.   A key advantage of unlicensed spectrum is that experiments in new technology can be carried out without asking the permission of spectrum licensees. To date, we have made very little spectrum available for unlicensed use and experimentation.

The FCC has the discretion to decide whether the digital television “white spaces” may be used on an unlicensed basis.   Its own Spectrum Policy Task Force recommended in 2002 that such a step be taken.   Indeed, in trying to stave off an auction rule in the 700 MHz proceeding that would have dedicated non-built-out spectrum to unlicensed uses, Verizon affirmatively argued that the Commission would be opening up the white spaces on an unlicensed basis – thus making such a rule for the 700 MHz auction unnecessary.

Beginning in 2004, the FCC asked for comments on uses of the white spaces, itself suggesting that unlicensed uses of these white spaces would be appropriate.   The Commission recognized that the “significant growth of and consumer demand for unlicensed wireless broadband applications” supported opening up the white spaces for broad ranges of unlicensed use.  Two years later, the FCC backtracked somewhat from its earlier wholehearted endorsements of unlicensed uses of the white spaces, saying (1) that, at the most, only “fixed” (non-portable) unlicensed uses should be allowed, and, even more disconcertingly, (2) that it is not confident any unlicensed uses are appropriate in the white spaces.   The FCC is concerned about the possibility of interference among the transmissions of various users of the white spaces.

So this is a proceeding about almost 300 MHz of spectrum (and all the fighting over the C Block concerned just 22 MHz).   It will be in “swiss cheese” (non-contiguous) form, but there will be a great deal of it.  Using white space spectrum as a way to provide last-mile connectivity to wired Internet access nodes would be especially valuable in rural areas where those wired nodes are scarce and there is a great deal of vacant TV spectrum.

Today’s update is that Google is making concrete statements about its plans should the FCC allow for unlicensed use of some portion of the white spaces.  (Here’s the company’s filing with the FCC.)  Google suggests that there should be allocations for both portable and fixed unlicensed uses.  (We need portable devices – they’ll be cheap and there’s a huge market for them.  Without portable devices, this market just won’t take off.)

Google suggests that *all* devices for unlicensed use of the white spaces should be required to receive an “all clear” signal for the particular channel where they wish to operate, by using geolocation, checking a database of licensees in that location, and getting permission in advance.  Wireless mics could send a signal (called a “beacon”) saying “don’t transmit here” that would be adhered to by these unlicensed devices.  Google further suggests that no unlicensed device would be permitted to transmit at all in channels 36-38.  The company makes the rural argument, pointing out that Android-powered handsets would be a good way of providing low-cost mobile broadband coverage for everyone.  And it’s promising to provide technical assistance to people and manufacturers who want to exploit unlicensed white spaces.

Interestingly, the company is suggesting that this combination of geolocation, beacons, and databases will allow the FCC (eventually) to be comfortable with unlicensed devices that just use spectrum sensing.  They’ll have so much data about interference successes etc. that they’ll see that interference can be dealt with just by spectrum sensing.

Once we’ve done all this experimentation with the white spaces, we may be in a better position to use *licensed* spectrum more wisely without causing interference.  Google points out that they could use dynamic auctions to allocate spectrum on a real-time basis – the idea is that the licensee could grant the right to transmit an amount of power for a specified unit of time, subject to a cap.

Bottom line:  This is a compromise proposal designed to assuage objectors and nudge the country down a path towards more efficient use of spectrum, both licensed and unlicensed.  It will be interesting to see how the Commission responds.  I’ve heard that there’s a welcoming mood over there for unlicensed uses.

Why Block C matters

By On March 20, 2008 In communications policy, fcc, internet policy With 8 Comments Permanent Link to Why Block C mattersPermalink

Today the FCC announced the winners of the 700 MHz auction – and you can see from pp. 62-63 of this document that Verizon won Block C. (Block C was set up in two nationwide paired blocks of 11 MHz each, which were auctioned off in very large geographic areas—12 licenses, each covering a “Regional Economic Area Grouping”. Verizon won seven of the twelve licenses, covering all of the US except Alaska, Puerto Rico, American Samoa, Guam, and the Northern Mariana Islands.)

Why does this matter?

Context. The 700 MHz auction happened at a particularly interesting time in communications history. Traditional telephone use is shrinking and the cultural sway of broadcasters is diminishing, while Internet use and cellphone use are growing quickly. Although the telecommunications industry has long been divided up into different silos (cable, broadcast, telephony, data), all of these segments are arguably converging into one packet-switched communications realm. Highspeed packetized communications are becoming the key communications medium.

The central question is which model of packetized communications will prevail: Will we converge on a set of proprietary, walled-garden networks, in which the network provider acts as a gatekeeper by deciding which communications (in terms of content, application used, protocol used, how expensive they are) move easily across its network and onto the (authorized) handsets of users (the cellphone model), or will we converge on the Internet model, in which the network provider makes available an interconnected, commodity, nondiscriminatory transport service (essentially, a utility connectivity product) on which competitive communications travel that can be introduced without the knowledge or permission of the network provider and can be accessed via any handset?

The answer. Verizon’s victory in obtaining the C block in this auction means that, for a while at least, the “cellphone” model of Internet access will hold sway – particularly as we move in greater numbers to experiencing Internet communications via mobile handsets.

More background – Verizon was already an almost unbeatable oligopolist. Verizon already had national spectrum licenses before this auction began. The commercial wireless industry in this country began in 1981 when the FCC issued two free cellular licenses in the 800 MHz range for each “cellular marketing area” (or “CMA”) in the country. There are 734 CMAs in the U.S., and this regulatory limitation to relatively-small geographic areas for the licenses (and to only two competitors for each geographic area) meant that cellular technology remained expensive and not widely used. But the operators that were handed these early free “beachfront” 800 MHz licenses retained them, and now (through mergers and sheer staying power) Verizon Wireless and AT&T have most of them.

The most important service attribute for experienced cellphone users is coverage – the availability of reliable signals. Verizon Wireless and AT&T offer the best nationwide coverage, because they held onto those “beachfront” 800 MHz licenses and snapped up smaller carriers. As a result, Verizon Wireless and AT&T experience both much lower “churn” (dropped subscriptions) and much higher rates of “net adds” (new subscriptions) than the third largest carrier, Sprint. Indeed, Sprint is rapidly losing customers. The enormous barriers to entry involved in providing nationwide service, their vast spectrum holdings, and the substantial economies of scale of wireless service generally, make Verizon Wireless and AT&T almost unbeatable oligopolists.

The myth of the “third pipe.” When it comes to highspeed Internet access, current wireless offerings from Verizon Wireless and AT&T do not compete directly in terms of speed or cost with the dominant wireline (DSL, fiber, and cable) transport offerings – which explains why 96% of all residential highspeed Internet access connections are sold by regionally dominant DSL or cable companies. Existing (pre-auction) wireless highspeed Internet access connections cost at least twice as much as a DSL or cable connection, and operate at only a fraction of the speed. Residential highspeed Internet access subscribers simply do not cancel their subscriptions in order to sign up for wireless highspeed access via handsets, because these services are not (currently) substitutable.

At the same time, the dominant existing national wireless carriers, AT&T and Verizon, (1) are controlled by the same incumbent actors that control DSL access through regional monopolies across the country and (2) offer wireless services as part of packages that tie together traditional phone services, Internet Protocol Television (IPTV) access, and internet access. In a nutshell, the leaders in mobile wireless are owned by the same companies who control the DSL marketplace and are, like their corporate parents, choosing to avoid direct competition for highspeed Internet access by bundling three or four services together (voice, video, data) and differentiating their offerings based on their voice or video elements.

Given this situation, in which 96% of residential wireline highspeed internet access is provided by regionally dominant DSL or cable companies, and wireless communications are largely provided by two oligopolist players who are in turn owned by wireline companies, the dominant providers of internet access services in this country, both wireline and wireless, have ample market power to nudge users towards the proprietary, cellphone, managed model of packetized highspeed communications. These carriers, just like all makers of potentially-commodified information goods, have substantial incentives to both lock their customers in with high switching costs and to differentiate their informational offerings from those of other companies running across their network. They obviously also have great incentives to avoid cannibalizing their own wireline highspeed internet access market dominance.

It wouldn’t have been possible to create a “third pipe” competitor through the 22 MHz available in the national C block. That much spectrum just can’t carry enough data to compete with DSL or cable. But this 700 MHz spectrum might have been able to support long-range provision of wireless highspeed Internet access in (1) areas where faster “wired” DSL or cable Internet access is not available, or (2) for personal, portable wireless uses. And it might have been able to do this while requiring far less capital expenditure for the building of transmission towers than for higher frequency bands.

Most importantly, if someone other than Verizon or AT&T had won this auction, we would have seen a test case for non-cellphone model Internet access.

But we won’t. During the wrangle over the auction rules, Google and others proposed that this spectrum be made available on a wholesale basis – so that the licensee would be obliged to sell access to its network on a wholesale basis at commercial rates. This would mean that any ISP could come and buy bandwidth and build its own business. Everyone would share the same transmitter and neutral connection, but ISPs would compete on price and the services they offered to their customers.

This kind of approach has led to dramatic competition for the provision of highspeed Internet access in Europe.

But even though the incumbents (Verizon and AT&T) could have accepted this limitation, won the auction, and then priced wholesale access at a high level (thus discouraging anyone from using it), avoiding the precedent of wholesale access – and retaining the cellphone model of access – was their central goal. And they achieved that.

Now, the FCC did mandate that any winning licensee have in place “no locking” and “no blocking” provisions conditioning its use of this spectrum:

Licensees offering service on spectrum subject to this section shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice on the licensee’s C Block network, except:
(1) Insofar as such use would not be compliant with published technical standards reasonably necessary for the management or protection of the licensee’s network, or
(2) As required to comply with statute or applicable government regulation.

As I’ve said here before, these no-locking, no-blocking requirements are hedged in by substantial limitations:  Verizon will be able to lock and block devices and applications as long as they can show that their actions are related to “reasonable network management and protection,” or “compliance with applicable regulatory requirements.” We’ve already seen how loosely “reasonable network management” has been interpreted in the Comcast fracas.

Verizon has said that all of its wireless operations will be “open” and that it will allow any device to attach to its network.  But.  Verizon has also insisted on retaining the ability (1) to privately “certify” applications and devices for use on its network (a process during which a great deal of mischief is possible, as we know from the pre-Carterfone days),  (2) to sell  heavily-subsidized handsets of its partners in its retail stores (which will make it unlikely for competing, full-price handsets to be popular), and (3) to prioritize its proprietary or charged-for content over “ordinary” Internet traffic.

The bottom line.  Verizon has won spectrum it arguably didn’t even need, given its existing spectrum holdings.  It retains the discretion to act as a traditional cellphone-model company – picking and choosing among applications and devices, underselling “open” devices, and discriminating against traffic that undermines its business model.  This isn’t great news for the Internet model of access.

On the other hand, openness is more popular and more talked-about than it used to be.  It may be that the pressure of consumer preferences makes Verizon provide a truly open Internet and truly open devices to the rest of us.  (The pressure of competition won’t be doing that – AT&T and Verizon have divided the U.S. between them, and the other players in the wireless space are far behind.)  The Android project, Verizon’s own words about openness, and concerns about the place of the U.S. in the international race for innovation may all push towards a more open future.

We’ll see.  The results of this auction don’t suggest that we’ll be seeing such a move any time soon.

Thursday links

By On March 13, 2008 In communications, communications policy, fcc With No Comments Permanent Link to Thursday linksPermalink

The House Commerce committee investigation of the FCC continues. According to the Washington Post, a detailed letter signed by Rep. Dingell has gone out to the FCC asking for a host of documents that (among other things) relate to “management practices that may adversely affect the Commission’s ability both to discharge effectively its statutory duties and to guard against waste, fraud, and abuse.”  This is serious – business as usual at the Commission must be under severe pressure, and the idea of real structural reform of the Commission (and perhaps a new telecommunications act) can now be talked about with some confidence.  This won’t happen now, but it could be happening a year from now.

According to CDT, the House should approve H.R. 3773, the FISA Amendments Act. It requires prior FISA court approval of surveillance procedures (if not of actual surveillance), ongoing judicial oversight of compliance with those procedures, does not grant retroactive immunity to the carriers, and has a Dec. 31, 2009 sunset.

I’m feeling prescient (or maybe just trend-aware) about yesterday’s post – today, WIRED has a substantial article covering a music industry notion of charging highspeed internet access subscribers a levy for access to music. Never mind that it’s impossible to figure out who’s doing what – particularly if everyone starts encrypting their communications. Never mind that the network access provider may not be shielded from liability if it starts looking at every transmission. As the article concludes, the music industry’s feeling is:

Pay up. . or we’ll sic Washington on you — and London and Paris and anybody else we can find.

The rock star, the Christian Coalition, and NN

By On March 12, 2008 In communications, communications policy, fcc, filtering, network neutrality With No Comments Permanent Link to The rock star, the Christian Coalition, and NNPermalink

Yesterday’s House Judiciary hearing (witness statements and archived video here) had a deeply political angle – what committee should have jurisdiction over network neutrality issues – but also revealed to me that:

We’re seeing the moment when Hollywood, law enforcement, and the network access providers publicly attempt to join hands in favor of monitored/monetized network access.

I loved meeting Damian Kulash and hearing him testify.  His opposite number (for purposes of the hearing) was the president of the Songwriters Guild, Rick Carnes.  Carnes was there to talk about piracy, p2p file-trading destroying his industry.  Here’s the angle, from Carnes’s point of view:  isn’t it true mandating neutral internet access won’t allow network access providers to watch for copyrighted files?

And then there was the “but what about pornography” line of questioning.  Although the Christian Coalition representative, Michele Combs, was there to testify about the importance of neutral network access for speech of all kinds (and it was great to see the alliance with the ACLU), the direction of questioning seemed to be:  isn’t it true that mandating neutral internet access won’t allow network access providers to watch for nasty files of various kinds?

There are many responses to both of these points.

Copyright infringement is a judgment call, not something that can be figured out automatically at the network level;

screening for infringing files will make the last mile grind to a halt;

network access providers will lose their immunity from copyright claims if they search for these files;

given the concentrated market for internet access, the idea of screening for (and filtering out) particular content creates the opportunity for a great deal of anticompetitive mischief;

content-layer applications are a far better place for this kind of screening – they know what artists they have licenses with, and they can actually respond to notices under the DMCA structure.

On the indecency etc. front, same kinds of arguments:

there’s a dramatic risk of overblocking, threatening innocent speech;

it’s impossible to tell in advance which packet bears the “wrong” kind of flesh tones;

screening will cause the last mile to grind to a halt;

network access providers already cooperate with law enforcement;

we should go after behavior, not tech mandates that will burden all uses of the network;

etc.

But it’s a concerted theme.  Avoid network neutrality by summoning up all the evils that it will loose upon the world.  Never mind that law still applies online, and that the idea of neutral access is not predicated on facilitating unlawful activity; never mind the costs to all users of creating a carefully (and invisibly) filtered access regime; never mind the outright impossibility of the task – just do it.

It seems to me that it is not in the long-run interests of network access providers to be too closely tied to any particular content industry representative, or set of representatives, given the dramatic change in liability risk that such a partnership represents; it also seems to me that it is not in the long-run interests of law enforcement to push users towards a dramatic uptick in the use of encryption technologies; and it seems clear that it is in no one’s interest to establish a kind of private police force in this highly-concentrated market for highspeed internet access.  Mischief, unaccountability, arbitrariness, censorship for commercial reasons – why would we want this?

I had my picture taken with the guys from OK Go.  It was an interesting hearing.  I’m hoping that these various industries discover their differing interests soon.

Meta moment

By On March 10, 2008 In communications policy, fcc, filtering, internet policy With No Comments Permanent Link to Meta momentPermalink

I did a short segment on NPR’s Bryant Park Project with Rachel Martin this morning – for broadcast tomorrow, Tuesday.  The plan had been to talk about the Cuba OFAC story from last week.  But when I got there they had switched gears – they really wanted to talk about net neutrality instead.

So we did an interview about everything.  We talked about registrars freezing web site registrations at the direction of the Treasury Department, about a judge knocking Wikileaks off the internet, and about network access providers filtering/managing internet access.  All in about eight minutes.

What’s the meta story?  Well, all three of these vignettes involve gatekeepers of various kinds whose direct or indirect control over private assets within the U.S. gives them the power to affect how we use the internet.  The Wikileaks judge understood that he had inadvertently blocked a lot of innocent speech, and so he reversed himself.  But OFAC and the network access providers aren’t backing down.  Sites/protocols/uses go on lists of various kinds, we sometimes can’t see the lists, we don’t know what the process is for changing the lists or getting off them, and users are stuck – without adequate choices in many case.

When it comes to net neutrality, it seems to me this is a constitutive moment in American communications.  When we have created general-purpose communications networks in the past, we have designed liberty into them – think about the post, the telegraph, and the telephone – even though they have often been controlled by private parties.  We don’t allow private parties to use their own commercial interests to decide how we’ll use these general-purpose networks.  Charging for use is fine, and charging for heavy uses is fine too – but picking and choosing among letters or telegraphs or phone calls based on their content is something we haven’t allowed.

And ISPs shouldn’t want to be in the position of picking and choosing because they’ll lose their conduit protections from liability, be treated as a kind of private police, and set the precedent for being a hammer-for-hire for all kinds of various content-related desires.

Raising the stakes

By On February 28, 2008 In communications, communications policy, fcc With 2 Comments Permanent Link to Raising the stakesPermalink

The first panel discussion during Monday’s FCC hearing in Cambridge provided a useful summary of the first stages of what will be/already is a much bigger battle.

I think it would be a good idea to raise the stakes in this discussion. Even the most pro-public interest of the five commissioners, Cmmr. Copps, talks only about a case-by-case adjudication by the FCC of the “rules of the road” for “reasonable network management.” But that won’t get us faster, more open high-speed internet access. Commr. Adelstein makes more headway – he’s suggesting that we need to explore a “comprehensive solution” for this issue. Commr. McDowell, by contrast, slides way way back, saying internet access is (to him) “new media” that is mostly made up of people passively watching video. Even Vuze asks only for better disclosures of network management practices.

Although nothing goes away, it seems to me that these older “media” modalities of cable and telephone “services” are melting gradually (like the Wicked Witch of the West) into simple transport of bits. (Broadcast has melted into cable and scarcely counts as a separate category any more.)

Now, these modalities, these silos don’t want this, don’t have any use for such a change, and so they are hanging on to friction, management, control – and they’re saying that self-regulatory efforts are all that is needed to ensure that the public interest is served by their management efforts. We know they’re competing with the internet. They want to stay “media” companies and avoid commoditization. They’ve got enough market power to make this happen, and if the system can stay just about the way it is until the people inside these silos reach retirement age, that’s a fine goal.

Will we have a future shaped by the choices of these particular informational gatekeepers? Or will we have a general-purpose network that anyone can use for his/her own reasons? Will we replicate the models of the past, just because we’re used to them?

The witnesses keep talking about “services” – but these aren’t services, this is just access, transport, commodity roads on which unimaginable complexity can flourish. These gatekeepers have every interest in maintaining scarcity, when we could have abundance – with an injection of leadership, national planning, and will.

The stakes couldn’t be higher.  The idea of keeping these networks subject to nondiscrimination obligations isn’t some crazy newfangled heavyhanded overreach – it’s the way we have run communications for hundreds of years.  These are communications networks (or should be), transport functions – not “media.”  We subject communications networks to regulation for the good of all; if we hadn’t acted that way, the internet would never have come into being.  (Remember, the internet is not the same thing as the World Wide Web – it’s a logical architecture for transport, not a vessel from which we download streams.)  If these few duopolist actors get away with “management,” the promise of the internet will not be fulfilled.

The European super-agency

By On February 27, 2008 In communications policy, fcc With 4 Comments Permanent Link to The European super-agencyPermalink

I personally have been cheering in support of Viviane Reding’s proposed plans to set up a Europe-wide oversight body and mandate functional separation of telecommunications providers.  But it looks as if national regulators in Europe are fiercely fighting back.  This Reuters article suggests that Ofcom and others are opposed to a pan-Europe regulator on the ground that such a body would be a top-down, single-answer entity.  Ofcom’s Ed Richards also points out that functional separation (well, for DSL, not fiber) has been achieved in the UK without a Europe-wide mandate.

This is all very interesting from a U.S. perspective. Reding seems to have the right ideas, and they’re big ideas, but the national regulators are resisting the notion of an overlord – and seem from this article to be beefing up an existing (but insufficiently strong) group-institution-for-national-regulators as an answer to her plans.  (This is the “you can’t fight something with nothing” move.)

Here in the U.S., by contrast, we *have* a regulator overlord, but the big ideas are absent within that institution and the out-manuevering by the incumbents is impressive.

====I spent the morning listening to Monday’s FCC hearing and will report tomorrow.  The seat-blocking by Comcast isn’t so interesting to me, but the substance of the hearing is.

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