Two thoughts
1. It's unfortunate that yesterday's drama had to come in the context of a merger clearance. I tend to agree that mergers aren't the right moments to apply laundry lists of conditions that may or may not serve public interests. I'm confident that the Democratic commissioners and the consumer advocates were negotiating in good faith, but it all smacks of a private deal — a back-room deal, done to ensure completion by some company's internal deadline. (Kudos to the person who can figure out why year-end 2006 was so important.)
That's not the way national policy should be made. And here I'm going to point to my service on the ICANN Board, where all of my colleagues on the board operate in good faith and with the best of intentions. But we often trip ourselves up on this front. In my personal view, it's not right to have one-off merger clearances (or one-off registry contracts) that are made behind closed doors dictate policy. Doing it that way puts everyone on shaky ground. It's always a better idea to work towards rules of (1) general applicability (2) that are decided in advance by (3) some process that (4) brings the issues to the attention of everyone who might be interested. Nothing's perfect; legislation itself is always a “deal” as well. But whatever we can do to reduce the deal-like atmosphere is good.
In the net neutrality context, all this means is that we should take the momentum generated by this merger discussion and use it to drive towards generally-applicable, clear-as-possible legislation.
2. SBC/AT&T have been arguing for years that any “IP platform service” (they'd now call it IPTV) should be removed from regulation. Back in February 2004, SBC filed a petition asking that the FCC forbear from subjecting these “platforms” to traditional telephony regulation. That petition was eventually denied on the grounds that it wasn't clear whether such regulation would be applied to such “platforms.”
What was an “IP platform” to SBC at that point? SBC wasn't entirely clear — they said “IP platform services” were “those services that enable any customer to send or receive communications in IP format over an IP platform, and the IP platforms on which those services are provided.” But the FCC noted that SBC intended its petition to cover its new fiber networks: In ”ex parte filings SBC suggested that, at least with regard to the facilities portion of the relief
requested, its petition is intended to cover newly constructed fiber-to-the-node and fiber-to-the-home IP networks that SBC plans to roll out later this year.”
The argument hasn't stopped — just a few months ago, SBC/AT&T filed a letter with the FCC saying that its “U-verse” wasn't a cable service (and so not subject to local franchising rules) because it was interactive. AT&T also let the FCC know that the Connecticut PUC had made the same determination.
What's U-verse? It's the “IP Platform” under a different name. It used to be called Project Lightspeed, and here's how SBC/AT&T described it to the Connecticut regulator: “The Project Lightspeed network will integrate IP-video with voice, data and other applications (all ultimately to be IP-based) in a manner that is not possible over existing broadband or cable networks. Because the various applications will amount to data packets traveling over the same broadband pipe, the services will interoperate and communicate in a way that makes each service more useful than it would be standing alone.”
It's SBC/AT&T's fiber network:
With AT&T U-verse, it’s all coming together. The AT&T U-verse portfolio integrates digital video, AT&T Yahoo! High Speed Internet U-verse Enabled, and in the future, voice over IP services. AT&T U-verse TV – AT&T’s premier, 100 percent IP video offering – features leading content, quality high-definition programming, and enhanced capabilities unlike anything on the market. (emphasis in original)
The point of all this quoting is that SBC/AT&T have been working steadily for years to have their fiber optic “IP Platform” (however named) treated differently than traditional telephone or cable services. They see this platform as an integrated whole — a “portfolio” of services. They see it as different from their now-traditional DSL offering. That's why the exclusion of “IPTV” from the neutrality language in yesterday's merger document is troubling. IPTV, to AT&T, likely means “U-verse,” and U-verse includes internet access (”U-verse Enabled“) as well as everything else. At the least, the reference to IPTV is deeply ambiguous.
The day the internet became cable television: Dec. 29, 2006
As part of the AT&T/BellSouth merger that is expected to be approved today, AT&T is now pledging to keep its “wireline broadband Internet access service” neutral.
AT&T joins the trickster pantheon with this move. (Other well known recent tricksters include Br'er Rabbit and Bugs Bunny.)
“Wireline broadband Internet access service” means traditional copper-wire digital subscriber line access provided by phone companies like AT&T. It's not very fast, but it's much faster than dial-up, and AT&T and Verizon sell it to a lot of people.
But cable internet access is more popular in this country, and although the phone companies are closing the gap they'd like to compete more effectively with the cable industry.
Hence AT&T's big push to announce a “massive access network upgrade, dubbed Project Lightspeed, back in 2004.” (Light Reading story here.) The idea was that AT&T would put in fiber optic lines that would allow data to travel much more quickly to households across the country.
AT&T renamed the service “U-verse” in 2005, and has promised to roll it out to 15 to 20 markets before the end of 2006. It's hurriedly doing this in San Jose — press release from a week ago is here. When you read the press release, you see that U-verse includes (is “bundled with,” in the now-standard term) high speed internet access. But it's not plain old internet access — it's not naked or neutral or commoditized. It's “AT&T Yahoo! High Speed Internet U-verse Enabled.”
That's AT&T's new high-speed internet access — AT&T Yahoo! High Speed Internet U-verse Enabled. It'll have speeds of up to 6 Mbps for downloading (not very fast — Singapore, Japan, and Korea and lots of other places have 100 Mbps and more available). It'll use all kinds of “middleware” from Alcatel and Microsoft and other companies to prioritize and privilege particular packets. It cannot be purchased separately — “purchase of AT&T U-verse TV required.”
If some nascent Google/YouTube application — some now-garage-bound online thingie we can't even imagine yet – wants to reach AT&T U-verse subscribers at these high speeds, it'll have to strike a deal. It'll have to ask for permission.
This means that naked, neutral, non-prioritized internet access (for AT&T customers, anyway) stays at 2001 speeds. AT&T has no incentive to upgrade its existing DSL facilities — it wants to move everyone to this new U-verse.
As AT&T says, “the new U-verse enabled AT&T Yahoo!(R) High Speed internet builds on AT&T's position as the nation's leading provider of broadband DSL.” It's not the same as the “wireline broadband Internet access service” that AT&T is willing to keep neutral.
I applaud the consumer advocates who got AT&T to promise neutrality as to DSL — but I think they may have missed a major battleground.
AT&T is effectively saying, “We'll keep existing 'broadband' access neutral. But when it comes to our new super-duper 'AT&T Yahoo! High Speed Internet U-verse Enabled,' well, that's not up for negotiation. We need to make money there. 'Enabled' and 'broadband' are not the same thing.”
I understand that the fix is in and the merger will go through. It would be great if someone, somewhere, realized that neutral high speed internet access would be good as a matter of economic and social policy in this country. But getting there will take leadership that we don't now have.
[Update — I've been reminded that it's a BIG DEAL to get AT&T to make any concesssions, and I certainly agree with that. The precedential value of this merger deal on neutrality is important. I hope that the next step will be general-application legislation that is clearer as to what exactly has to be neutral — and I hope that legislation will include all transport to the internet in the sweep of a clear neutrality mandate.]
Spectrum
I spent much of today reading about electromagnetic radiation. Imagine those rays bouncing through and around us all.
Some of those rays are visible, so we can see colors. Some are x-rays and gamma rays. And some frequencies are allocated by the FCC.
Yesterday's Harold Feld post is a doozy — all about a spectrum giveaway being sought from the FCC in the name of public safety. Lots of details here.
Bloomberg terminals and telco policy arguments
Earlier today, I was at a midtown restaurant that caters to business and media tycoons. In the lounge area, one man had drawn his two small children (probably 3 and 6) to the Bloomberg terminals in the corner. They sat on his lap, staring at the screens.
“See?” he said, “There's the price of oil.”
To his credit, or theirs, the children remained fascinated with the rows of colored numbers for some time.
If you were working in Hong Kong today, you weren't able to access Bloomberg terminals. According to the Wall Street Journal, traders were getting their stock prices from local data providers instead. Today's earthquake off the coast of Taiwan caused breaks in as many as eight undersea data cables.
Prediction: the stated need to invest in more undersea data cables (the vulnerabilities of which were revealed by today's incident) will be used as yet another argument against network neutrality in this country and others.
Whatever the incentives were that caused groups of companies to get together and invest in the cables that wrap around the world, they already existed before this earthquake took place — indeed, Verizon recently announced that it would be joining up with five big Chinese telecom companies to build a cable system between China and the U.S., at a cost of $500 million.
We clearly need these cables. But investing in them appears to require calculations that are separate from whatever last-mile vertical integration receipts the telcos expect. Nonetheless, I think we'll be hearing more about this issue.
Net neutrality roundup
Nice end-of-year summary by news.com here — particularly useful for links to stories about various bills that didn't pass.
I'm working on a comparison between the arrival of cable (regulatory response: “we must protect broadcast!”) and the advent of the internet (regulatory response: “we must protect telephone companies without appearing to!”), and it's quite entertaining.
In other news, Joi Ito is on a diet. He seems pretty excited about it and I'm rooting for him.
Fleeting expletives
C-SPAN re-aired the Second Circuit argument in Fox v. FCC this evening. Riveting.
Judges Rosemary Pooler and Pierre Leval had sharp questions for the FCC: why aren't you concerned about violence? if a parent doesn't want to protect their kids, why are you stepping in to do so? (answer: because Congress and the Supreme Court have said we should). how is anyone supposed to know in advance whether their broadcast will be indecent — can you get a no-action letter (answer: no, but we've given lots of examples of non-indecent speech in our orders).
It's an important case. It looks as if the judges are really questioning why the FCC does what it does. Carter Phillips was very emphatic in arguing that the FCC had made a 180-degree turn away from its enforcement policies of the last 25 years by suddenly focusing on fleeting, gratuitous expletives, and implied that political pressure had caused the switch. He's confident that the FCC's move can't possibly survive strict scrutiny, and he's urging the court to declare the entire scheme unconstitutional.
The absence of safe harbors or any real guidelines seems particularly troubling — the chilling effect on speech of not knowing whether someone will come after you with a fine has to be substantial. And the fact that broadcast is treated differently from everything else — also silly. Plus the fact that there is no evidence that children are actually harmed by fleeting expletives.
And, of course, the argument (which included plenty of fleeting expletives) wasn't itself indecent — it's news. Eric Miller, the FCC lawyer, said as much during the hearing. So awards programs (the Billboard Awards) aren't protected, but the Daily Show is? Very tricky stuff, this speech censorship business.
[nice Harold Feld summary here]
An internet carol
Not too many days ago, I went to a staged reading of A Christmas Carol. It was thoroughly rewarding — Scrooge was tremblingly grateful to be delivered from his obsessive thrift, and Bob Cratchitt and Scrooge's nephew were kind enough to acknowledge the change in Scrooge's habits. I went out into the streets suffused with well-being.
I had read Andy Oram's essay (”The Ghosts of Internet Time”) before, but he sent it around again today and I was delighted to see it. So here it is.
Bleeping NBC
So for more than 24 hours there I wasn't able to be online. It felt very peaceful. I stopped checking to see if there was yet another message about the economics of internet infrastructure. I didn't read a single blog entry. And I didn't haunt the front page of the New York Times or the Washington Post.
I sat in my office with a nice big cup of coffee and read a book about telecommunications law. It's a lot easier to do that when there isn't a laptop around.
Now, of course, the laptop is with me again and I'm back in the swamp. There are two full in-boxes to page through in a dispirited sort of way. The problem is that everything's interesting and I can't possibly absorb it all. It's overwhelming, every single day.
It's refreshing, under these conditions, to focus on a simple and heartwarming story from the world of mass media.
NBC broadcast [requires registration, sorry] a funny song on Saturday night as part of Saturday Night Live. I'm confident that more than 90% of the people who saw the broadcast received the show via their cable provider. But because it was a broadcast, using the sacred spectrum, NBC bleeped out a possibly offensive word. Many times. Then NBC took a deep breath and posted the funny song on YouTube without the bleeping. The claim is that the video is funnier with the bleeps included, but the unbleeped song is getting a lot more attention because it's online.
So what does this parable tell us? A low-ranking network is trying to make sure it gets some attention, is that all this is?
Maybe there's more here. The anachronistic bleep may be the heart of this story. It can't possibly make sense for the FCC to continue making vague threats about license renewal (and assessing not-vague fines) associated with the appearance of broadcast impropriety, when all the kids we're supposedly protecting have access to innumerable other sources of impropriety using other forms of electromagnetic transmission.
In fact, I'll go out on a limb here and say that it's embarrassing for the FCC to continue along this indecency path. Surely the agency has better things to do. Tinkering with the timing and content of broadcasts seems increasingly beside the point. Not that there's a need (I have to say quickly) to tinker with any other form of communication either. The best software is between the ears.
A day without online access
No email, no internet today. Calm but bewildering. Details tomorrow.
High-speed access and economic growth
My obsession for the last few months: Economic growth is tied to new ideas; new ideas are more likely to emerge online than anywhere else; so universal highspeed internet access should be a key government policy. And those private providers have every reason to skew things towards their own benefit rather than the larger social good.
Today there's a report from Australia saying — according to MuniWireless — that there's an association between highspeed internet access and economic growth. The report costs a good deal to access, which is unfortunate. But here's a nice summary:
This year’s report presents a compelling case for the roll-out of broadband in all regions and that it is the key driver of economic growth.
The Report found:
· the failure to address inferior Internet access quality could cost regions up to $2.7 billion in foregone gross regional products and up to 30,000 jobs in 2006;
· regions with poor access to telecommunications technology are less productive;
· firms that use the Internet can increase their sales 3.4% faster than other firms; and
· high speed broadband provides the best opportunity for Australia’s industries to access global supply chains.
The Report says that the connection of rural communities to broadband is happening ‘relatively slowly’, despite Government programs.
So — maybe someday we'll have access to the whole report. But for the meantime it's an interesting summarized data point.
Also good news today in Commr. McDowell's strong (and well-reasoned) statement that he wouldn't be un-recusing himself.