FCC Broadband Coordinator Blair Levin described the crux of the National Broadband Plan in testifying before the Commission 7-02 as “identifying where there are currently ‘demonstrable public interest harms.’” That central task is essentially defining the problem(s) and is necessary to complete the last task of the plan: “identifying ways to lessen those public interest harms,” or recommending solutions. Defining the problem largely defines the range of recommended solutions.
- The plural use of “harms” here suggests that the Plan could end up “identifying” more problems than the obvious core problem prompting the Plan — that not “all people of the United States have access to broadband capability.”
Levin’s choice of a classic organizational structure, background-problem-solution, is a wise, useful, and simplifying approach for such an exceedingly complex endeavor.
- I also commend Blair Levin for setting a high bar for defining the problem, “demonstrable public interest harms,” because it suggests it limits the potential for less than fully-justified FCC recommendations.
I. The Statutory Context for the National Broadband Plan
Given that Congress did not repeal any of the laws that the FCC operates under, it is important to note that the FCC’s National Broadband Plan is not a blank slate. Congress’ statutory authority and direction granted to the FCC remains fully operative until it is changed in law. Moreover, Congress did not ask the FCC for recommendations of laws that need to be changed indicating that the Plan operates under existing law and authority.
- In that context, it is then particularly instructive to remember the statutory language that describes the purposes for which the FCC was created:
- Title I, Section I of the 1934 Communications Act as amended: “…communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication…”
- It is also instructive to remember the statutory language that describes the additional statutory purposes in the most significant modern-era update to the Communications Act:
- The Telecommunications Act of 1996: “To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telcommunications consumers and encourage the rapid deployment of new telecommunications technologies.”
- And given that the Plan is being done in concert with a Section 706 update, per Blair Levin, it is also important to remember the highly relevant statutory language of Section 706 to a National Broadband Plan:
- “In the inquiry, the Commission shall determine whether advance telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission’s determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”
II. Candidates for “Demonstrable Public Interest Harms”
First, the continued lack of an interoperable public safety network to allow our first responders, fire fighters and law enforcement to efficiently and effectively communicate and coordinate via broadband services to save lives and property, after attacks like 9-11 and hurricanes like Katrina in New Orleans, remains the most “demonstrable public interest harm” for the FCC Plan to address.”
- It would be hard to imagine a National Broadband Plan that does not identify the long-unaddressed, high-consensus, urgent priority of interoperability for our first responders, fire fighters, and law enforcement as one of our nation’s most “demonstrable public interest harms” to address most expeditiously.
Second, our Nation’s lack of adequate cybersecurity is another highly “demonstrable public interest harm.”
In his Cybersecurity Address 5-29-09, President Obama said:
- “This new approach starts at the top, with this commitment from me: From now on, our digital infrastructure — the networks and computers we depend on every day — will be treated as they should be: as a strategic national asset. Protecting this infrastructure will be a national security priority. We will ensure that these networks are secure, trustworthy and resilient. We will deter, prevent, detect, and defend against attacks and recover quickly from any disruptions or damage.”
- “In short, America’s economic prosperity in the 21st century will depend on cybersecurity.” …”It’s about the privacy and economic security of American families.” “…this is also a matter of public safety and national security.”
From the White House Cyberspace Policy Review:
- “The digital infrastructure’s architecture was driven more by considerations of interoperability and efficiency than of security. Consequently, a growing array of state and non-state actors are compromising, stealing, changing, or destroying information and could cause critical disruptions to U.S. systems.”
In short, while security may have been an afterthought or a lower priority for the Internet before, President Obama has made it clear that cybersecurity threats are a “demonstrable public interest harm.” In other words, if the broadband Internet/cyberspace is not safe and secure, other Internet priorities/benefits cannot be achieved.
Third, given that the FCC’s original statutory purpose includes “promoting safety of life and property” and given the fact that the broadband Internet has helped facilitate widespread and massive digital theft of intellectual property via p2p applications, I will be surprised if the IP community cannot make a persuasive case to the FCC that current mass digital IP theft is a “demonstrable public interest harm.”
Fourth, anything that would prevent reasonable network management to maintain a reliable broadband Internet infrastructure for communication and commerce would be another “demonstrable public interest harm.”
- Any actions that would prevent broadband providers from being able to mitigate denial of service attacks, viruses, worms, spam, zero-day-threats, and other malware, and manage network congestion would clearly undermine the necessity of reasonable network management.
- Simply, reliability is a demonstrable prerequisite for fulfilling the fourteen purposes Congress enumerated in its call for a National Broadband Plan: “
- “advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”
III. What Doesn’t Make the Cut for “Demonstrable Public Interest Harms?”
First, a lack of formal net neutrality rules or legislation is not a “demonstrable public interest harm” because:
- Industry has committed to, and is abiding by, the FCC’s Broadband Policy Statement;
- The FCC has a working process in place to oversee potential problems with the statement if and when they arise; and
- Existing antitrust law already addresses the crux of most net neutrality concerns.
FreePress/SaveTheInternet’s many claims of potential net neutrality/open Internet “harms” simply have not been demonstrated or proven.
Second, claims that new broadband regulation is needed because competition is unable to protect consumers and promote innovation is not a “demonstrable public interest harm,” because it completely contradicts the purpose of the 1996 Telecom Act and numerous FCC precedents.
- At core, most of the claims by activists that markets or practices are anti-competitive, are really “stalking horse” opposition to current competition law and policy, and advocacy for common carrier regulation of broadband as if it were a monopoly and not a competitive market.
While proponents of more regulation of competitive broadband competitors have asserted market failure they have yet to prove it, and even if they were able to determine that a certain market segment exhibited market failure, an exception does not make a rule. In the absence of “demonstrable” market failure, competition policy remains the law and policy of the land.
In closing, the FCC will remain on the right track with the National Broadband Plan to the extent that it continues to define the problem(s) it believes need to be addressed as “demonstrable public interest harms.” That high bar will ensure that the plan will enjoy broad consensus and avoid divisive political issues that can not be proven on the merits with data and facts.
- The National Broadband Plan is simply too important to allow it to be hijacked by alleged “problems” that are neither demonstrable nor harms.
Jonathan Zittrain’s NYTimes Op-ed today, “Lost in the Clouds” ironically captured three of my big concerns/themes about the Internet and its natural outgrowth — cloud computing.
- I recommend this op-ed because it pulls together a whole host of converging Internet issues that others generally treat separately.
- The problem with writing about these issues separately is that much of the richness of how these inter-related issues interact — is lost.Zittrain: “The cloud, however, comes with real dangers.”
- I agree. That has been much of the point of my 13 part series since the first of the year:
- “The Open Internet’s Growing Security Problem“
Zittrain: “Worse, data stored online has less privacy protection both in practice and under the law.”
- I agree. This is the point of my June testimony before the House Internet subcommittees on Internet privacy.
- My central thesis was:
- “Why A Consumer-Driven, Technology/Competition-Neutral, Privacy Framework Is Superior to a Default ‘Finders Keepers Losers Weepers’ Privacy Framework”
- As long as we make privacy policy, technology driven and not consumer driven, it will be haphazard, lagging and full of massive holes.
- My central thesis was:
Zittrain: “If the market settles into a handful of gated cloud communities whose proprietors control the availability of new code, the time may come to ensure that their platforms do not discriminate.”
- Once again, Mr Zittrain makes sense.
- I have long advocated that if Google, Amazon, and eBay believe that net neutrality and an open Internet is important enough to mandate it from broadband providers, why should it not apply to the webopolies Google, eBay and Amazon, that have a much more dominant “gatekeeper” power in their segments than any of the broadband competitor has in their market?
- If their proposed net neutrality mandates were good and not poison, why wouldn’t the webopolies eat their own cooking?
- Any techie will tell you, cloud computing is just network computing.
- Any antitrust expert will tell you that the Internet’s network of networks creates huge network effects than can be anti-competitive.
- Common sense tells you that a “platform” is just tech-speak for a “network.”
- If network computing platforms naturally produce large network effects, why should “network” neutrality expectations not apply?
- Without technologically-neutral network neutrality expectations, is the next cloud computing monopoly just “a click away?”
Update: The reason I said that this post was ironic is that most people who follow my blog would be surprised that I would agree with Mr. Zittrain on anything, because I am in most strong opposition to Mr. Zittrain’s overall philosophy of the Internet and his support for an information commons.
- I agree. That has been much of the point of my 13 part series since the first of the year:
Voting with dollars: American Wireless Consumers Pay Much Less, Use Much More than Other Countries
July 20, 2009
Kudos to Steve Pociask of the American Consumer Institute for his research reminding regulators that American consumers enjoy the most competitive, useful, and innovative wireless market in the world.
In reviewing the stats that matter most, the U.S. is far ahead of the rest of the world.
- Americans use 600 more wireless minutes a month than the average OECD country, which is 2-5 times more usage to put it in perspective.
- Americans also pay 10 cents per minute less than the average European does.
We constantly hear from anti-competition forces that competition doesn’t work.
- The evidence that they are dead wrong is overwhelming.
- Competition works!
Non-neutral Ironies of Amazon Blocking Kindle Content
July 19, 2009
Amazon’s decision to seize e-copies of George Orwell’s “Nineteen Eighty Four” and “Animal Farm” from Kindle users after Amazon had sold and already delivered the e-books to customers — drips with irony.
- For those who have missed the widespread uproar over Amazon’s actions see NYTimes or Google “Amazon 1984.”
Irony #1: Fans of George Orwell’s political satire know that Animal Farm is all about animals who originally profess equality for all the farm animals, but once in power become corrupt and establish rules that make those in power much more equal than others.
- The non-neutral irony here is that Amazon, the world’s most powerful e-tailer, and their webopoly brethren, Google and eBay, have pressed Government hard to mandate net neutrality (ostensibly to ensure Internet equality) for their broadband competitors, while conveniently exempting themselves from the mandate.
- Amazon’s problem here is that unlike the illiterate “animals” on the Animal Farm, Kindle users can read.
Irony #2: Fans of George Orwell’s political satire also know that “Nineteen Eighty Four” is about a repressive totalitarian regime, which has a leader called “Big Brother,” and which censors all information it disapproves of and makes it appear as if the information never existed.
- The non-neutral irony here is that what may be one of the biggest incidents of interference ever with consumers access to digital content — was committed by an application company and not a telecom or cable company.
- Amazon’s problem here may be its current dominance of the e-book distribution market and its “total” control over Kindle users, in that they control the device, the transmission and the content, giving Kindle users little recourse, but to endure Amazon’s “doublethink” explanations.
Irony #3: Fans of net neutrality activist organizations like FreePress and the Open Internet Coalition know that these organizations consistently argue that blocking users access to the content of there choice is considered to be a serious violation of net neutrality.
- The irony here is that the most reliable net neutrality ambulance chasers, FreePress and Open Internet Coalition, are nowhere to be found on this extremely-high-profile incident of interference/blocking of digital content by one of their own.
- Why could that be?
By the way, I personally am a very happy user of my Amazon Kindle. I also checked to ensure my dog-eared hard copies of Nineteen Eighty Four and Animal Farm are still where I left them — I am happy to report they are.
Innovation in International Broadband Comparisons: The Phoenix Center’s “Broadband Adoption Index”
July 19, 2009
Big kudos to George Ford and Larry Spiwak of the Phoenix Center for their innovative breakthrough in devising a rigorous “Broadband Adoption Index” to replace current highly-deficient international broadband comparison methods.
- Last Wednesday, I attended the presentation of their paper before a largely government audience in Washington and came away very impressed with their clarity of thought and the vastly greater utility of their approach over existing comparative mechanisms.
First, George Ford drove home the point that the much-touted OECD broadband penetration ranking was fatally flawed, in that even if the U.S. reached perfect 100% penetration the U.S. could remain in about 15th place.
- In other words, nothing the U.S. could do could change its ranking appreciably.
- He explained why — the fact that per capita measures have an inherent bias in favor of countries with small households over countries like the U.S. with larger average households.
- This common sense debunking of this widely-cited statistic is a helpful addition to the debate about where the U.S. really ranks in the world on broadband.
- The big takeaway for the Government folks was that use of that statistic almost guaranteed that the U.S. would not improve in its international ranking no matter what the Government did with the broadband stimulus or the FCC’s National Broadband Plan.
- To the extent that the Government desires to get appropriate and accurate credit for its broadband efforts going forward, it would be wise to phase out emphasis of the OECD ranking.
Second, Ford pointed out that not having a broadband measure include wireless broadband, like the OECD measure does, makes no sense.
- If a measure like the OECD’s only values wireline broadband and totally ignores the existence and utility of wireless broadband, it will skew countries to make more expensive and less efficient wireline investments rather than making wireless broadband investments that could help many more people much faster.
Third, Ford drove home the common sense notion that a useful broadband index should care about, and focus on, what the target/goal is of the metric.
- He explained that a one-size-all metric where everyone had one target of penetration lost sight of the reality that different countries start from very different places and thus have very different goals and have very different potentials for progress.
- In essence he showed how the OECD ranking basically says that all countries should be like the Netherlands or Sweden regardless of what they want or need for their country.
Fourth, Ford explained the best way to normalize a broadband index is to focus on value.
- This approach allows for wireline and wireless broadband to be compared fairly and accurately.
- This also allows for nations to set country-appropriate targets/goals.
In closing, it will be interesting to see what the Berkman Center at Harvard, the FCC’s designated outsourced entity to review the literature on international broadband comparisions for the FCC’s National Broadband Plan, thinks of the Phoenix Center’s work here.
- If they are fair and objective, they will recognize this innovative “Broadband Adoption Index” work as among the most intellectually rigorous and policy useful research available to the FCC and Congress.
