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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.

More filtering and blocking in more places

By On February 25, 2008 In communications policy, fcc, internet policy With 5 Comments Permanent Link to More filtering and blocking in more placesPermalink

As the FCC convenes its hearing today in Cambridge to address Comcast’s degradation of BitTorrent packets, two other blocking/filtering stories are playing out.

First, the Pakistan government (probably nudged by President Musharraf, who heard that some YouTube videos are critical of him) ordered that YouTube be blocked. An over-zealous ISP owned by the state sent out a redirect for YouTube’s IP address to some other more suitable site.  But that redirect was somehow propagated all over the world – removing YouTube from view for everyone.

Second, the infamous Clean Feed approach is under attack.  A Finnish programmer published the government’s domain blacklist in order to prove that the system is being abused.

You can’t tell who’s on the list, why they’re there, or what the process is for getting off, and ISPs are supposed to block the sites on the list. Sites with many pages are blocked as a whole, even though only a small portion of the site is arguably unlawful (as in Wikileaks).

It’s the meta-issue:  under what circumstances should ISPs be used as private police to block or filter sites?  What’s “reasonable network management”?  How much should users know about what’s going on? How do we manage the spillover effects of all this filtering, which can be quite harmful to overall social interests?

This isn’t just about the future of the First Amendment.  It’s the future of the internet.

Why regulate cable internet access

By On February 20, 2008 In cable, communications policy, fcc With 1 Comment Permanent Link to Why regulate cable internet accessPermalink

The cable guys have their way of saying it:  “What do you want to do, nationalize our businesses?”

Another way of seeing this issue is:  We have a very few very large providers of highspeed internet access in this country.  They have sufficient market power to decide how and when to prioritize internet communications.  And all of these providers are competing with the internet in some way – they are all (or are becoming) old media and old telecom companies that want to maintain control over their distribution channels.  The internet disrupts this control, and so they are competing with it.

This market power over access, and prioritization power, is good for these few providers but not good for the rest of us.  It threatens overall economic growth and the development of new kinds of businesses and new ways of making a living.

Yes, we limit the powers of our government, and we’re proud of that, but those limits do not forbid us from meeting modern conditions.

Even ten years ago, the thought of requiring nondiscrimination of cable providers would have been rejected as arbitrary and oppressive.  Well, the thought of zoning regulations would have been unthinkable in 1910.  The thought of regulating the upbringing of cows would have been unthinkable in 1920.  But we did these things because it was better for the rest of us.

I understand that Comcast saves a dime or two a month per subscriber by doing the kind of peak-time traffic shaping that is the focus of the current uproar.  That’s not insignificant – it may add up to between $5 and $20 million dollars a year.  But the service they’re selling brings in over $5 billion.  And the savings to Comcast is an incalculable cost to Vuze and other new video-distribution businesses that can’t rely on a stable transport platform.  It’s also an incalculable cost to the rest of us, even if we’ve never heard of BitTorrent, because we can’t rely on a fast, non-discriminatory internet connection for our future.

This wouldn’t matter if we had enough choices of internet access providers in the U.S.  We don’t, and so the uproar continues.

Comcast isn’t acting as just some old private business when it provides constrained internet access.  It’s providing communications infrastructure, and we don’t (and shouldn’t) expect our communications sidewalks to rise up and choose winners and losers.

Yes, uncontrolled government regulation (the “nationalize our business?” horrible) is wrong.  But we do regulate, when we need to, when it’s for the common good.

700 MHz C block reserve price met

By On January 31, 2008 In communications policy, fcc With No Comments Permanent Link to 700 MHz C block reserve price metPermalink

This is big – Blair Levin’s Stifel Nicolaus report is saying that the reserve price of $4.6 billion has been met for the C Block.

For the upper band C Block, the FCC mandated 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.  

The no-locking, no-blocking requirements were hedged in by substantial limitations:  the winning licensee would be able to lock and block devices and applications as long as they could show that their actions were related to “reasonable network management and protection,” or “compliance with applicable regulatory requirements.”  The license winner would not be required to adhere to open-platform requirements on its other spectrum bands, would be allowed to continue to use its own (non-standardized) certification standards and processes to approve uses of devices and applications on their networks, would be allowed to protect the “safety and integrity” of their networks against non-carrier applications and devices, and would be permitted to restrict use of its network to devices “compatible with [the carrier’s] network control features.”   Additionally, carriers would have the ability to deny interconnection to handsets and applications that were unable to provide location-information via the carrier’s E911 system (a system that is controlled by the carrier itself).   In other words, as long as the discrimination could be shown to be connected (however indirectly) to some vision of “network management,” it would be permitted.  These exceptions arguably provide any incumbent carrier that wins this C Block auction with ample slow-roll capability.

But it’s still important – very important – that this has happened.  Particularly if Google is the winning bidder, something we may not know for a month or so.

Even without a wholesale access requirement, the incremental change to the wireless ecosystem made by these limitations is important.  It’s important as a signal, it’s important as a stake in the ground, and it’s important in connection with the Skype petition – perhaps that will be viewed more favorably now by the FCC.  It’s a victory for the public interest groups and for Google that any limitations at all were placed on this auction.  It’s a victory for the legislators who pushed the FCC at the iPhone hearing.  It means that we value, as a country, more interoperable wireless uses, the ability to use devices of our choice, and the ability to access applications we care about.

700 MHz and the D block

By On January 28, 2008 In 700 mhz, communications policy, fcc With 9 Comments Permanent Link to 700 MHz and the D blockPermalink

I want to applaud Harold Feld for writing energetically about what has happened to the planned public-private partnership for creating a dedicated public safety network.  Key post is here.

The FCC paired the upper band D block (a single 10 MHz nationwide license) with 10MHz of public safety spectrum located next to the D block, and conditioned the D block license on an obligation to negotiate with public safety representatives towards the construction by the D block licensee of a nationwide public safety network.   The idea was that a robust, dedicated public safety network would be built to the specifications of the public safety community, and in exchange the commercial licensee of the D Block would be permitted to use the public safety spectrum (in addition, of course, to the D Block spectrum) when it was not otherwise needed. Absent this private participation, funding for a shared public safety network was unavailable.

Frontline Wireless, a privately held company headed by former FCC Chairman Reed Hundt, submitted a proposal along the lines eventually adopted by the FCC for the upper band D block.  In the event of an emergency, Frontline proposed that public safety would have immediate, preemptive use of the entire network.  Frontline won a substantial victory when the FCC decided to allow the D Block licensee to obtain “designated entity” small business bidding credits even if the licensee planned to operate on a wholesale basis.   Frontline dropped out before the auction, however, apparently unable to convince investors of the certainty of the enterprise.

Now Harold tells us that the leader of a competitor to Frontline may have scuttled Frontline’s chances by (in his capacity as a contractor to the public safety entity) purportedly telling “Frontline’s investors that it would cost $500 million over ten years as a flat fee to access the [public safety] spectrum.”  That appears to have driven Frontline away.

So now we have an auction in process.  How’s the D block doing?  Nothing going on.  Apparently there is no one even approaching the reserve price for that D block, and no other bidders in the offing.  All that planning is down the drain, and Harold’s position is that the auction should be stopped by the Commission while staff investigates what happened.

Meanwhile, two bidders appear to be fencing over the much-discussed C block.  Maybe it’s Verizon and Google.  We won’t know for a while.  I still think Verizon will win in the end, but it would be fine to be proved wrong.

The D Block plan always seemed a distant prospect at best, and both Frontline’s plans and rhetoric were high-flown.  But surely it shouldn’t have been blocked in this particular way from the auction – if indeed that’s what happened.  And we’re facing a lot of questions:  if this block is re-auctioned, what rules will govern it?  what will be the basis for those rules if indeed a public-private partnership is unworkable?

700 MHz auction time

By On January 22, 2008 In 700 mhz, communications policy, fcc With 1 Comment Permanent Link to 700 MHz auction timePermalink

There was a mock auction today just to test the equipment for submitting bids.  The real thing is on Thursday beginning at 10am.

Chairman Martin has been urged to let the auction for Block D (the public-private partnership) play out.  Given the roiling stock markets around the world and the high reserve prices that the FCC set, it’s unlikely that the reserve prices will be met – particularly the $4.6 billion reserve price for Block C, the block for which mild no-locking, no-blocking requirements were drafted.  If that block doesn’t command that reserve price, we’ll be back to smaller paired blocks of 5 or 6 MHz each, much reduced geographic areas, and no open platform limitations.  (As for the D Block, the Commission set a reserve price of $1.33 billion.  If that reserve isn’t met, the FCC will decide whether or not to re-auction it on the same or different terms.)

It seems like an uncertain week during which to bid a few extra billion for the privilege of a world in which the C Block conditions exist.  Frontline is already out of the picture for the D Block.  If you’re one of the big incumbents – Verizon or AT&T – you’d be happy for those restrictions to go away.

And our own government doesn’t care much about infrastructure (did you see this story in the Post?) – even infrastructure that makes new ideas possible.

I’ll still be following the auction results closely (not that we’ll hear much until it’s over), but I have a sinking feeling that we won’t see much that’s newsworthy.  Brough Turner thinks otherwise.  We’ll see.  Maybe I’m just affected by the weather these days.

Institutional design

By On January 18, 2008 In communications policy, fcc, internet policy With 1 Comment Permanent Link to Institutional designPermalink

It’s Friday, a day to tie some threads together. There were three announcements/events this week that are connected in a non-obvious way.

1. US Intel Chief Wants Carte Blanche to Peep All ‘Net Traffic. (Via ArsTechnica, reporting on a Wall Street Journal story and a New Yorker profile.) Our government wants the authority to look at all emails, web searches, file transfers, you name it. And it doesn’t want to be bothered by warrants, judicial oversight, or limits of any kind.

2. Leaked memo: Time Warner Cable to trial hard bandwidth caps. (Via ArsTechnica.) Time Warner wants to try billing on the basis of user bandwidth consumption.

3. We need vision for next-generation broadband, not complacency. (Via The Guardian, with thanks to Dirk van der Woude.) A clear statement of disappointment with Ofcom’s approach, characterized as (paraphrasing) “investment in highspeed Internet access will happen in good time, as and when companies like BT find a commercial case.”

These three elements go together in creating a picture of US policy towards Internet access at the beginning of 2008.

Rather than seeing the Internet as an engine for economic growth, creativity, innovation, and new jobs – and as the converged communications medium for the next generation – current policy is to wait for private companies to decide when investment in access makes sense for them. Those private companies have plenty of incentives to shape access to suit their own business plans. As Harold Feld points out, metered bandwidth (as in the TWC plan) is perhaps better than blocking, but ultimately similarly destructive to the Internet ecosystem.

Not only is current policy shortsighted when it comes to the future of access, it’s dramatically tilted towards the desires of law enforcement. We’ll take all kinds of astonishing steps in order to further surveillance – we’ll consider extending CALEA to every single packet, we’ll do all we can to help telecom companies who have acted as private arms for over-reaching, illegal law enforcement activities, and more. Now we’ll succumb to the desire to inspect the content of everything that happens online. An uproar would be appropriate right about now.

That inspection would inevitably be easier with cooperative/fewer Internet access providers with strong relationships with law enforcement. That inspection won’t work as well with unbundled facilities and competitive providers. Indeed, that inspection is inconsistent with the desire to have truly highspeed Internet access.

So that’s our vision right now – control, complacency, inspection, and fear. Not very encouraging. As The Guardian piece says about the UK regulator,

This is where Ofcom’s complacency really grates. While observing that some countries may be ahead, it says: “We do not yet see evidence that the UK will be significantly disadvantaged economically or socially as a result.”

OK, we do not yet see hard empirical evidence – mainly because it does not yet exist. But in three years, five years or 10 years, it will.

It’s shortsighted to have the idea that it doesn’t matter if the US has a complacent or non-existent highspeed Internet access policy in place – or a policy that emphasizes surveillance over every other factor.  Of course it matters.  We’re monkeying destructively with our future.  What’s the institutional design that we’re missing?  Why is access to the Internet viewed as something terribly tricky that must be left to private vertically-integrated decisions?  Why don’t we have the intellectual infrastructure in place within government agencies to allow for more courageous or visionary thinking?

Three developments

By On January 8, 2008 In 700 mhz, cable, communications policy, fcc With 1 Comment Permanent Link to Three developmentsPermalink

1. More passive content from network providers. Comcast announced that it’s going to be providing 3,000 high-definition video-on-demand programs for subscribers to its highspeed Internet access services.

“Comcast is the largest purchaser of TV content and now we are bringing that content over to the Internet” [Comcast CEO Brian Roberts, at CES today]

Comcast is also confidently predicting that the PC will become “a full cable TV client” in the future. Dirk van der Woude pointed me to a Wall Street analyst, Douglas McIntyre, who doesn’t think Comcast’s plan makes any sense.

Why not buy some more content? According to The New York Times “Comcast is already the world’s largest buyer of content, and it is spending about $4.5 billion a year to assemble content from around the world to offer on demand.” But, all of that content, even delivered via cable and the internet, may not get Comcast any new customers and may not be the magic bullet that kills new products from the telephone companies.

A wide range of video is already available on the internet. YouTube to Hulu, AOL to MSN. The largest content firms are already pushing TV and films across dozens of delivery portals. The new Comcast online product would not seem to have much advantage here.

On the TV, VOD has always been an attractive product, but the reason most companies do not offer huge film libraries is that no one wants them. Consumers watch the most popular movies. Having an extra 5,000 films that 1% of the subscriber base wants to see is hardly a solution.

Well, we’ll see. Comcast’s plan is to create a platform of its own, a one-stop shop that you can drive from your PC – checking mail, making phone calls, and watching hi-def video. That could be quite attractive to users, particularly if they don’t have any easily-available alternatives.

2. The Chairman promises to look into Comcast’s blocking practices. FCC Chairman Martin says he wouldn’t mind investigating what Comcast was up to.

“Sure, we’re going to investigate and make sure that no consumer is going to be blocked,” Martin told an audience at the International Consumer Electronics Show.

The insouciance, the blitheness of that “Sure” tells us that “blocking” is going to be looked into. But so much happens short of blocking – so much can get in the way that doesn’t amount to an outright ban of particular applications or activities or devices. And Martin will make, and the network providers will make, huge exceptions for “reasonable network management.” Undefined. Surely we can do better. Maybe Obama would do better.

3. All Quiet at Frontline. I understand that Frontline didn’t make a required downpayment to bid in the 700 MHz auction. That means it’s even less likely that we’ll see any experimentation with internet access business models – even more likely that Verizon or AT&T will win what they want in the auction. What they really want, perhaps even more than the spectrum itself, is freedom from the specter of wholesale open access requirements. Like Comcast, they want to continue to be in the business of managing a vertically-integrated network of content.

All three of these developments point in the same direction: putting the broadcast model of the internet on a firmer footing. Yes, the Commission may look out for adequate disclosure of what that management consists of, but because there isn’t any competitive pressure to provide an unmanaged internet environment, we won’t expect one. And we won’t get one, unless different leadership emerges in this country.

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