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A few thoughts on the Google-Verizon talks and behind closed doors FCC stakeholder meetings with industry...

First, neither the FCC nor Google is likely to defend the interests of the vast majority of us and the communities in which we live. Companies like Verizon don't dump millions in lobbyists and lawyers on a lark - they do it because that level of spending gets them access and action. Google, its don't-be-evil mantra notwithstanding, remains a company that looks out for its interests first.

And Google's interests may well be ensuring that its content is always in the "fast lane" despite their historic approach of pushing for an open internet where no business can simply pay to get get a higher level of service from an ISP.

This is not an "abandon all hope" post about network neutrality. The FCC has substantially changed course on this issue many times (largely due to massive public pressure - thank you to Free Press for organizing so many folks), so I still have hopes that it will enact regulations to preserve the open internet.

However, these regulations are certainly not the best approach. It is a messy approach to solving a problem that fundamentally comes down to the fact that network owners operate essential infrastructure in the private interest rather than the public interest.

We don't have to worry that national bakeries are going to be prioritized over local bakeries in access to the roads they need to make their deliveries. UPS, FedEx, and the US Post Office do not have to engage in separate agreements in every community over who gets to use the roads and what speeds they can travel on them. When it comes to roads, the rules apply to all like vehicles equally (which is to say that all big trucks are treated like big trucks and passenger cars are treated like passenger cars).

If I lived in Chattanooga, Monticello, Lafayette, Brigham City, Bristol (TN or VA), Wilson, perhaps soon Opelika, or dozens of other communities with publicly owned broadband networks, I would be watching this ongoing network neutrality fight with a rather bemused expression because my network is democratically accountable to the community and that offers far greater accountability than anything that will come out of an FCC proceeding.

Update: A fascinating reminder from the Economist on the proper role for regulators:

If companies always agreed with regulators' rules, there would be no need for regulators. The very point of a regulator is to do things that companies don't like, out of concern for the welfare of the market or the consumer.

Photo used under Creative Commons license from AdamWillis.

I was briefly checking out the Open Internet Workshop when I got into a short tweet-argument with someone I did not know. Bear with me as I recount the discussion then explain why I think it worth delving into for a post. This person caught my attention by tweeting, "Which means the Net is already open, right?"

I responded, "Yes Internet is open. Trying to keep it that way. Idea that net neutrality is 'new' is absurd."

Shortly thereafter, I got a response that fits a standard script: "Then how about proving actual harm first? Burden of proof to hand Net to govt is on you guys."

I responded, "Comcast, RCN, Cox block applications ... why must we wait for you to break the Net further to fix it?"

The final response was that the market forces will solve the problem and my "examples are outdated."

I later discovered that I was wasting time responding to someone from an astroturf think tank. Odds are that this person was simultaneously tweeting that cigarette smoking is not correlated with cancer and that burning coal actually cleans the air.

But this is a common argument from those who want to allow companies like Comcast and AT&T to tell users what sites they can visit and what applications they can use. Some "free market" advocate (who is actually defending firms with serious market power, the antithesis of a free market) says that no private network owner would violate network neutrality. Then, when presented with companies that have violated network neutrality, the response is invariably that those are "old" examples" or somehow not relevant.

To sum up:

Person A: No company would violate network neutrality.

Person B: What about Comcast, Cox, RCN, and the famous Madison River Communication?

Person A: Those don't count.

Aside from the absurdity, the larger problem is that we do not always know when companies are violating network neutrality. Comcast was violating network neutrality for at least a year before tech journalists successfully outed the practice. Over the course of that year, many subscribers called Comcast and asked why they were having problems with certain applications. Comcast lied to them and said the company was not interfering with them. When finally backed into a corner with incontrovertible evidence, it admitted it was.

These companies know that users have very few choices for broadband. In my case, I have a choice between slow DSL and comparatively faster cable. Though we may soon have access to WiMax in Saint Paul, the speeds will not be comparable to what I need for my communications. I have one option for relatively fast broadband. And that company has no problem lying to me about whether it interferes with my surfing.

Transparency matters. Communities cannot depend on these companies to provide the infrastructure they need. If my city owned the network and treated its customers this way, we would have the power to shake up the management and put local needs before profits.

Photo used under Creative Commons license - thanks to flickr's limonada.

A quick reaction to the court decision that the FCC cannot currently prevent Comcast from telling subscribers where they can and cannot go on the Internet: This is what happens when private companies own infrastructure.

Comcast owns the pipes so it makes the rules. The FCC, authorized to regulate "all interstate and foreign communication by wire or radio" by Congress, most assuredly is supposed to have the authority to ensure Internet Service Providers cannot arbitrarily block some websites to subscribers. Whether it really has the power or not is determined by courts - and the courts are massively swayed by the arguments of Comcast, related trade associations, and powerful organizations like the US Chamber of Commerce. So long as Comcast and other massive corporations own the infrastructure, they will make the rules. We can attempt to fiddle at the edges by responding via the FCC, or we can build public infrastructure (over which they can provide services without making the rules) and avoid this entire problem.

On this particular issue, though, I found the following bits helpful in understanding the decision and how it changes federal policy.

Cecilia Kang of the Washington Post posted a video interview with Ben Scott of Free Press that is well worth watching to understand what is at stake and what is not. For instance, the FCC is not proposing to regulate the Internet so much as the wires and transmissions that allow the Internet to run. As long as Comcast can decide what bits it wants to transport (as in, it will transport bits from CNN but not Fox News, for instance), the open Internet is at risk. Ben Scott also appeared on the excellent Diane Rehm show that asked Who Controls the Internet?

If you really want to get into the nuts and bolts of what the Court said, you never go wrong by starting with an analysis by Harold Feld, who notes (with more authority than I when yelling back at my radio at misinformed tech reporters) that lots of folks are talking about this decision (including a certain FCC Commissioner) without understanding what the ruling actually said.

The FCC does not require an additional grant of power from Congress to enforce network neutrality, as noted by Public Knowledge:

The real tragedy of today’s ruling is that this entire issue is a self-inflicted wound by the FCC. When it decided not to regulate broadband Internet under Title II (by placing cable broadband into Title I and moving DSL broadband from Title II to Title I), it turned its back on a specific delegation of powers from Congress. There would be no debate about ancillary authority if the FCC were to recognize that broadband Internet is a Title II “telecommunications” service. The FCC has the statutory power it needs if it chooses to use it.

Photo used under Creative Commons license from AdamWillis.

The FCC has released its National Broadband Plan and I have perused it, in anticipation of digging into it. The vast majority of reactions seem to agree that it has some good parts and some disappointments. Karl Bode summarizes the plan nicely (as does Glenn Fleishman). From our perspective, it is good on a million details but disappointing on its solutions.

As is usual for me, I'll focus on wired networks.

This plan will not lead to the meaningful competition we all want. It will further cement the power of incumbent providers who have refused to invest -- especially in rural areas. However, it does encourage Congress to "clarify" that the public should be able to build and own networks via local governments and other arrangements. This is the closest we come to a victory.

This is what they have to say about the matter (page 153):

Tribal, State, Regional and Local Broadband Initiatives In addition to Tribal, federal, and state efforts to support broadband deployment, local governments and regions often organize themselves to support deployment in their communities. According to recent market research, as of October 2009, there were 57 fiber-to-the-premises (FTTP) municipal deployments, either in operation or actively being built, in 85 towns and cities in the United States. These deployments collectively serve 3.4% of the FTTP subscribers in North America.

Not all government-sponsored networks serve consumers directly. Several government-sponsored entities, such as NOANet in the Pacific Northwest and OneCommunity in Ohio, are major providers of backhaul capacity in areas that benefit community institutions and local broadband service providers. Their networks are often “constructed” by patching together and opening up to wider use fiber and other connections that might originally have been built for single-purpose institutional needs, such as the needs of government offices and local transportation. By offering up that existing capacity to wider use, including the service provider community, these efforts can benefit an entire community, not just one institution.

While it is difficult to measure the impact of many local efforts, these efforts should be encouraged when they make sense. However, 18 states have passed laws to restrict or explicitly prohibit municipalities from offering broadband services. Some states, like Nebraska, have outright bans on municipalities offering any wholesale or retail broadband service. Other states, such as South Carolina and Louisiana, set conditions that make municipal broadband both harder to deploy and more costly for consumers.140 In addition, restrictions on the use of institutional networks can substantially impede the ability of local and regional authorities to utilize that infrastructure to benefit the broadband needs of the community as a whole. Restricting these networks in some cases restricts the country’s ability to close the broadband availability gap, and should be revisited.

This leads to Recommendation 8.19:

Congress should make clear that Tribal, state, regional and local governments can build broadband networks.

In describing this recommendation, they suggest publicly owned networks are a final resort:

Local entities typically decide to offer services when no providers exist that meet local needs. These local entities do so only after trying to work with established carriers to meet local needs. This experience is similar to how some municipalities responded in the early part of the 20th century, when investor-owned electric utilities left rural America in the dark while they electrified more lucrative urban centers. Public and cooperatively owned power utilities were created to fill the void. More than 2,800 public and co-op operators still provide electricity to 27% of Americans today. Many of these same rural areas now face similar challenges attracting private investment to connect civic institutions, businesses and residences to highspeed data networks. In some areas, local officials have decided that publicly–owned communications services are the best way to meet their residents’ needs (see Box 8-5 [describing BVU]).

Municipal broadband has risks. Municipally financed service may discourage investment by private companies. Before embarking on any type of broadband buildout, whether wired or wireless, towns and cities should try to attract private sector broadband investment. But in the absence of that investment, they should have the right to move forward and build networks that serve their constituents as they deem appropriate.

Thus we see that the FCC, which has just completed a 376-page report describing how the private sector has failed to build the networks we need, continues to see the private sector as the best entity to build and operate these networks.

In short, this is my biggest frustration with the report.

Forget that their first goal is for the U.S. to somehow "lead the world" in 2020 with 100 million connections at the speeds commonly found TODAY in several peer nations.

Let's focus instead on its anti-public sector bias in revisiting the history of infrastructure networks in US history (page 3):

Private investment was pivotal in building most of these networks, but government actions also played an important role. Treasury bonds and land grants underwrote the railroad, the Rural Electrification Act brought electricity to farms and the federal government funded 90% of the cost of the interstate highways.

Let's see, the public sector paid for almost all the highways, provided the land and financing for the railroads, and merely electrified most of the country's land mass while leaving the profitable areas for the private sector to take care of. It sure as hell seems like public investment was pivotal in building those networks, not private. But instead, we see another federal agency going out of its way to reassure the private sector that despite the U.S. being totally not competitive in broadband internationally, we all really really value their contribution.

Perhaps the most fascinating omission of this report is that it ignores the areas of the U.S. that have already met the goals set forth. Lafayette, Louisiana, is building 100Mbps symmetrical connections to every home in town - one might think the FCC would have been interested in mentioning that. Unfortunately, it doesn't fit into the FCC's narrative that public broadband should be a last resort. Lafayette already had broadband - they simply wanted better broadband from a provider that put the community first. It was not a last resort, it was a good policy choice.

This report gets many of the details right when it comes to why these networks are important, but it does not learn from all the past networks they cite as being transformative -- that the public sector has an incredibly important role to play rather than a minor one. The public must control the infrastructure to ensure it is not monopolized by narrow interests. And in this case, those narrow interests probably love this report.

This is a plan for ongoing public subsidization of privately owned networks. Even if it leads to a temporary spike in broadband investment, it does not solve the long term problem in the way that rural electrification did - by making sure that the infrastructure was accountable to communities.

If nothing else, we continue to hope that this plan will make it easier for communities to build the networks they need themselves. The FCC has made a weak recommendation that this happen - we'll see what Congress says. This plan makes it clear: DC is not coming to the rescue - communities can choose to be self-reliant (depending on the state) or they can take what the private sector gets around to offering.

Update: My criticisms of The Plan should not be interpreted as being anti-Plan. In fact, I think the Plan moves us forward as a nation in some key ways (as noted by Karl Bode in the link above) -- but I also think the Plan makes some fundamental mistakes. Nonetheless, I offer my thanks to all the work the FCC put into producing this. It was certainly a Sisyphusian task.