regulation

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I just posted this essay to IdeaScale at OpenInternet.gov, in advance of the Open Internet Workshop at MIT this afternoon. (You can vote it up or down there, along with other essays.)  I thought I’d put it here too. — Doc


The Internet is free and open infrastructure that provides almost unlimited support for free speech, free enterprise and free assembly. Nothing in human history, with the possible exception of movable type — has done more to encourage all those freedoms. We need to be very careful about how we regulate it, especially since it bears only superficial resemblances to the many well-regulated forms of infrastructure it alters or subsumes.

Take radio and TV, for example. Spectrum — the original “bandwidth” — is scarce. You need a license to broadcast, and can only do so over limited distances. There are also restrictions on what you can say. Title 18 of the United States Code, Section 1464, prohibits “any obscene, indecent or profane language by means of radio communication.” Courts have upheld the prohibition.

Yet, as broadcasters and the “content industry” embrace the Net as a “medium,” there is a natural temptation by Congress and the FCC to regulate it as one. In fact, this has been going on since the dawn of the browser. The Digital Performance Right in Sound Recordings Act (DPRSA) came along in 1995. The No Electronic Theft Act followed in 1997. And — most importantly — there was (and still is) Digital Millenium Copyright Act of 1998.

Thanks to the DMCA, Internet radio got off to a long and very slow start, and is still severely restricted. Online stations face payment requirements to music copyright holders are much higher than those for broadcasters — so high that making serious money by webcasting music is nearly impossible. There are also tight restrictions on what music can be played, when, and how often. Music on podcasts is essentially prohibited, because podcasters need to “clear rights” for every piece of copyrighted music they play. That’s why, except for “podsafe” music, podcasting today is almost all talk.

There is also a risk that we will regulate the Net as a form of telephony or television, because most of us are sold Internet service as gravy on top of our telephone or cable TV service — as the third act in a “triple play.” Needless to say, phone and cable companies would like to press whatever advantages they have with Congress, the FCC and other regulatory bodies.

It doesn’t help that most of us barely know what the Internet actually is. Look up “The Internet is” on Google and see what happens: http://www.google.com/search?hl=en&q… There is little consensus to be found. Worse, there are huge conflicts between different ways of conceiving the Net, and talking about it.

For example, when we say the Net consists of “sites,” with “domains” and “locations” that we “architect,” “design,” “build” and “visit,” we are saying the Internet is a place. (Where, presumably, you can have free speech, enterprise and assembly.)

But if we say the Net is a “medium” for the “distribution” of “content” to “consumers,” we’re talking about something more like broadcasting or the shipping industry, where those kinds of freedoms are more restricted.

These two ways of seeing the Net are both true, both real, and both commonly used, to the degree that we mix their metaphors constantly. They also suggest two very different regulatory approaches.

Right now most of us think about regulation in terms of the latter. That is, we want to regulate the Net as a shipping system for content. This makes sense because most of us still go on the Net through connections supplied by phone or cable companies. We also do lots of “downloading” and “uploading” — and both are shipping terms.

Yet voice and video are just two among countless applications that can run on the Net — and there are no limits on the number and variety of those applications. Nor should there be.

So, what’s the right approach?

We need to start by recognizing that the Net is infrastructure, in the sense that it is a real thing that we can build on, and depend on. It is also public in the sense that nobody owns it and everybody can use it. We need to recognize that the Net is defined mostly by a collection of protocols for moving data — and most of those protocols are open to improvement by anybody. These protocols may be limited in some ways by the wired or wireless connections over which they run, but they are nor reducible to those connections. You can run Internet protocols over barbed wire if you like.

This is a very different kind of infrastructure than anything civilization has ever seen before, or attempted to regulate. It’s not “hard” infrastructure, like we have with roads, bridges, water and waste treatment plants. Yet it’s solid. We can build on it.

In thinking about regulation, we need to maximize ways that the Net can be improved and minimize ways it can be throttled or shut down. This means we need to respect the good stuff every player brings to the table, and to keep narrow but powerful interests from control our common agenda. That agenda is to keep the Net free, open and supportive of everybody.

Specifically, we need to thank the cable and phone companies for doing the good work they’ve already done, and to encourage them to keep increasing data speeds while also not favoring their own “content” subsidiaries and partners. We also need to encourage them to stop working to shut down alternatives to their duopolies (which they have a long history of doing at both the state and federal levels).

We also need to thank and support the small operators — the ISPs and Wireless ISPs (WISPs) — who should be able to keep building out connections and offering services without needing to hire lawyers so they can fight monopolists (or duopolists) as well as state and federal regulators.

And we need to be able to build out our own Internet connections, in our homes and neighborhoods — especially if our local Internet service providers don’t provide what we need.

We can only do all this if we start by recognizing the Net as a place rather than just another medium — a place that nobody owns, everybody can use and anybody can improve.

Doc Searls
Fellow, Berkman Center for Internet & Society
Harvard University

[Later...] A bonus link from Tristan Louis, on how to file a comment with the FCC.

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When we went looking for an apartment here a couple years ago, we had two primary considerations in addition to the usual ones: walking distance from a Red Line subway stop, and fiber-based Internet access. The latter is easy to spot if you know what to look for, starting with too many wires on the poles. After that you look for large loops among the wires. That means the wiring contains glass, which breaks if the loops are too small. The apartment we chose has other charms, but for me the best one is a choice between three high speed Internet services: Comcast, Verizon FiOS and RCN. Although Comcast comes via coaxial cable, it’s a HFC (hybrid fiber-coax) system, and competes fairly well against fiber all the way to the home. That’s what Verizon FiOS and RCN provide.

fiber

We chose Verizon FiOS, which gives us 20Mb symmetrical service for about $60/month. The 25 feet between the Optical Network Terminal box and my router is ironically provided by old Comcast cable TV co-ax. (Hey, if Comcast wants my business, they can beat Verizon’s offering.)

My point is that we live where we do because there is competition among Internet service providers. While I think competition could be a lot better than it is, each of those three companies still offer far more than what you’ll find pretty much everywhere in the U.S. where there is little or no competition at all.

The playing field in the skies above sidewalks is not pretty. Poles draped with six kinds of wiring (in our case electrical, phone, cable, cable, fiber, fiber — I just counted) are not attractive. At the point the poles become ugly beyond endurance, I expect that the homeowners will pay to bury the services. By the grace of local regulators, all they’ll bury will be electrical service and bundles of conduit, mostly for fiber. And they won’t bury them deep, because fiber isn’t bothered by proximity to electrical currents. In the old days (which is still today in most fiber-less places), minimum separations are required between electrical, cable and phone wiring — the latter two being copper. In Santa Barbara (our perma-home), service trenching has to be the depth of a grave to maintain those separations. There’s no fiber yet offered in Santa Barbara. At our house there the only carrier to provide “high” speed is the cable company, and it’s a fraction of what we get over fiber here near Boston.

All this comes to mind after reading D.C. Court Upholds Ban on MDU Contracts: FCC prevents new exclusive contracts and nullifies existing ones, by John Eggerton in Broadcasting & Cable.  It begins, “The U.S. Court of Appeals for the D.C. Circuit Monday upheld an FCC decision banning exclusive contracts between cable companies and the owners of apartments and other multiple-dwelling units (MDU).”

The rest of the piece is framed by the long-standing antipathy between cable and telephone companies (cable lost this one), each as providers of cable TV. For example,

Not surprisingly, Verizon praised the decision. It also saw it as a win for larger issues of access to programming:

“This ruling is a big win for millions of consumers living in apartments and condominiums who want nothing more than to enjoy the full benefits of video competition,” said Michael Glover, Verizon senior VP, deputy general counsel, in a statement. “In upholding the ban on new and existing exclusive access deals, the Court’s decision also confirms the FCC’s authority to address other barriers to more meaningful competitive choice and video competition, such as the cable companies’ refusal to provide competitors with access to regional sports programming.”

Which makes sense at a time in history when TV viewing still comprises a larger wad of demand than Internet use. This will change as more and more production, distribution and consumption moves to the Internet, and as demand increases for more Internet access by more different kinds of devices — especially mobile ones.

Already a growing percentage of my own Internet use, especially on the road, uses cellular connectivity rather than wi-fi (thanks to high charges for crappy connectivity at most hotels). Sprint is my mobile Internet provider. They have my business because they do a better job of getting me what I want: an “air card” that works on Linux and Mac laptops, and not just on Windows ones). Verizon wanted to charge me for my air card (Sprint’s was free with the deal, which was also cheaper), and AT&T’s gear messed up my laptops and didn’t work very well anyway.

In both cases — home and road — there is competition.

While I can think of many reforms I’d like to see around Internet connectivity (among citizens, regulators and regulatees), anything that fosters competition in the meantime is a Good Thing.

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