Tomorrow I'm keynoting at the "Internet Openness: Net Neutrality and Beyond" event at the Cardozo Law School in New York City. It should be a spirited discussion since I'm debating with Berin Szoka from the Progress and Freedom Foundation (a right-leaning, market fundamentalist think tank). Interestingly enough, I've spoken with Adam Thierer (aslo of PFF) on on many issues (e.g., privacy and data protection, freedom of speech, etc.) we vociferously agree.

But the "leave it all to the 'free market'" that wants to keep government 100% out of telecommunications is where I think PFF goes off the deep end. "Self-regulation" only goes so far, without government setting parameters for markets, one ends up with the malfeasance and collapse of the savings and loans, airlines, car manufacturers, and now banks (and all of this in the past 25 years). You'd think we would have learned by now that government acts as a check and balance -- without it, markets spin out of control. And in much the same way that you wouldn't want the government running everything, neither do you want markets running amok (only to be bailed out with my hard-earned tax dollars when they come back for a bailout to the same government they didn't want involved in the first place).

Should be an interesting time. Event power is below; here's more:

4/21/2009

11:30 am - 5:00 pm

The Cardozo Public Law, Policy & Ethics Journal is pleased to present a symposium on Internet openness, net neutrality, content diversity and competition. What is the new definition of net neutrality and what are the developing mandates? How do policymakers promote or harm the richness and diversity online content/media? Join the lively debate with speakers including Sascha Meinrath (New America Foundation); Berin Szoka (Progress & Freedom Foundation); John Morris (Center for Democracy & Technology); Matthew Lasar (Ars Technica); Fred Benenson (Creative Commons); Jonathan Askin (Brooklyn Law School).

This event will take place in the Moot Court Room, Tuesday, April 21, 2009, at 11:30am. We will be providing lunch and a reception to follow, so please RSVP (mweldon@yu.edu) to ensure enough food is available. CLE credit will also be available: 1.5 credits for each of the two sessions.

Schedule:

11:15am: Check-in
11:30am: Session 1(Meinrath/Szoka)
1:00pm: Lunch
2:15pm: Session 2 (Morris/Askin/Lasar/Benenson/Heller)
4:00pm: Reception

Blair Levin's closing quote sums up today's AP article nicely, "Like so much of what is happening in Washington in the fall of 2008, it's all about the spring of 2009." Here's what AP is reporting (full article can be read here):

NEW YORK (Associated Press) - Technology and telecommunications issues will be on Capitol Hill's radar in the months ahead as lawmakers attempt to influence regulators at the Federal Communications Commission and frame the debate for next year's Congress. Among the issues at the top of the agenda: subsidies for telephone service in underserved areas and online privacy.

With a lame-duck Congress and the Senate Commerce Committee still regrouping following the July indictment of its top Republican, Alaska's Ted Stevens, it's unlikely lawmakers will produce much legislation upon returning from summer recess. But Congress doesn't need to pass bills to influence tech and telecom policy, said Stanford Washington Research Group analyst Paul Gallant.

A prime example is the battle over proposed "network neutrality" rules, which would prohibit broadband providers from discriminating against or favoring Internet traffic flowing over their networks...

I've finished reading through McCain's Technology Plan -- it's a quick read, about 50% as large as Obama's Technology Plan but with even less actual content. One telecommunications expert told me, "The fact that it's so thin and fluffy speaks for itself."

That said, there were some good points in McCain's plan (e.g., supporting research and development, increasing H1-B Visas, tax breaks for R&D, supporting national broadband buildout, increasing government transparency, reforming the patent system) -- of course they were all points that were already in Obama's plan, released last fall. In fact, the parallels are fairly substantial (to a point).

But it's in the discrepancies where the two candidates are thrown into stark relief...

Network Neutrality

Obama's says: "A key reason the Internet has been such a success is because it is the most open network in history. It needs to stay that way. Barack Obama strongly supports the principle of network neutrality to preserve the benefits of open competition on the Internet."

McCain's says: "John McCain does not believe in prescriptive regulation like 'net-neutrality,' but rather he believes that an open marketplace with a variety of consumer choices is the best deterrent against unfair practices."

Diversity of Media Ownership

Obama's says: "Barack Obama believes that providing opportunities for minority-owned businesses to own radio and television stations is fundamental to creating the diverse media environment that federal law requires and the country deserves and demands. As president, he will encourage diversity in the ownership of broadcast media, promote the development of new media outlets for expression of diverse viewpoints, and clarify the public interest obligations of broadcasters who occupy the nation’s spectrum."

McCain's says: [Nothing -- there's nothing about diversity or media ownership in his technology plan.]

Lowering the Corporate Tax Rate

Obama's says: [Specific tax breaks for R&D and broadband buildouts, but no cross the board tax cut for major corporations.]

McCain's says: "John McCain will lower the corporate tax rate to 25 percent."

General Worldview Towards Technology

Obama's says: "Obama is also opening up the campaign and giving average Americans a chance to offer opinions and information on important policy issues and Americans have responded: over 15,000 policy ideas have been submitted through the web site."

McCain's says: "Offering simple common sense solutions to real problems is at the core of the McCain’s innovation agenda."

A lot of McCain's plan looks good (a lot of it also looks identical to Obama's plan), but it's this last one -- this McCain worldview that scares the hell out of me. Technology is complicated -- and the solutions we need are fairly complex -- they require an in depth understanding of the problem if you're going to formulate a solution. And McCain clearly doesn't understand some of the core problems.

Take competition, for example. McCain's tech plan states, "Competition has been a great strength for America — offering opportunity, low prices, and increased choice for our citizens. Markets work best when there is robust competition. Competition means that any new devices invented cost less because there are more choices. This ensures more Americans can afford to be part of the digital economy." Yet, when it comes to things like broadband services, the US is paying more for services and has fewer service options than a growing host of other countries. If you can't identify the problem of lack of competition in the first place, how can you possibly solve the problem. Platitudes about competition aren't going to cut it.

A technology plan has to address the massive market conglomerization that's been happening in technology -- from Microsoft to Google, Apple to AT&T. McCain's plan completely sidesteps this issue -- Obama's plan addresses it head-on:

"An Obama administration will look carefully at key industries to ensure that the benefits of competition are fully realized by consumers. Obama will strengthen the antitrust authorities’ competition advocacy programs to ensure that special interests do not use regulation to insulate themselves from the competitive process. Obama will also strengthen competition advocacy in the international community as well as domestically. He will take steps to ensure that antitrust law is not used as a tool to interfere with robust competition or undermine efficiency to the detriment of U.S. consumers and businesses. He will do so by improving the administration of those laws in the U.S. and by working with foreign governments to change unsound competition laws and to avoid needless duplication and conflict in multinational enforcement of those laws. In short, an Obama administration will take seriously its responsibility to enforce the antitrust laws so that all Americans benefit from a growing and healthy competitive free-market economy."

However you come down on these issues, I'd love to hear more about your take on the McCain and Obama plans (either on blog or off). Personally, I'm still waiting for McCain to release a real technology plan -- one that helps consumers and addresses the problems we're facing instead of protecting corporations and ignoring technology market failings.

When McCain states, "

As I reported earlier, Bell Canada has been caught throttling traffic from independent service providers. More data is now coming in and the extent of the bandwidth throttling has been remarkable. Here's a 24hr snapshot from one ISP:

Meanwhile, independent ISPs have set up a map of where they're being discriminated against -- as it turns out, Bell Canada has been doing this to scores and scores of competitors. Here's the map:

View Larger Map

FCC Commissioner McDowell presented at the Tech Policy Summit pointing to the recently announced Comcast/Bittorrent "solution" whereby Comcast would stop degrading Bittorrent traffic as a huge success. Personally, I think the so-called solution does nothing to protect end-users from future malfeasance by network operators, so I asked Commissioner McDowell what the FCC is doing to prevent what will certainly become a data obfuscation arms race from developing. Here's the problem in a few easy-to-understand steps:

1. A network operator discriminates against certain types of traffic.

2. End users begin to encrypt their traffic and pass data from applications and/or services that are discriminated against through an encrypted tunnel (e.g., VPN, SSH, etc.).

3. The network operator is now forced into a fairly problematic decision -- if they don't discriminate against encrypted traffic, more and more services and applications will encrypt their traffic; but if they do discriminate against encrypted traffic, they're saying, in essence, that if you want privacy, you will get worse service.

4. Meanwhile, corporations that rely upon VPN for their everyday dealings, will scream bloody murder; so then network operators are forced into an even more dastardly decision -- discriminate wholesale against classes of users. In other words, all residential-class users will be foisted off into a low-priority tier of service.

So how can this be avoided?

Build capacity.

A great resource discussing the rationality of this solution is David Levinson and Andrew Odlyzko's, "Too expensive to meter: The influence of transaction costs in transportation and communication". But the main issue is that building capacity is the best solution for end users, while the tiering and further commodification of existing bandwidth comes at the literal expense of end users.

Steven Mansour just pinged me about Bell Canada purposefully degrading traffic of independent internet service providers. This is a huge violation of network neutrality and exactly the kind of behavior by telco incumbents that must be made illegal. Michael Geist looks to have broken the story -- I'm sure it'll be coming out to the more mainstream media momentarily.

The New America Foundation released the following media alert commenting on Verizon's so-called "any app, any device" plan:

Media Alert

November 27, 2007

Verizon "Any Device" Plan a Positive Step, But Details and Full Consumer Choice Still Needed

WASHINGTON - New America Foundation's Wireless Future Program offered qualified praise for this morning's announcement that Verizon Wireless will allow its customers to use any device it certifies on its wireless networks.

"Verizon's plan is a positive step, but FCC Chairman Martin and the other commissioners deserve the credit for making consumer choice a condition on the TV band spectrum licenses that will be auctioned early next year," said Michael Calabrese, director of the Wireless Future Program. "This appears to be a move to head off market entry and new wireless competition from Google and other Internet companies that would result if the incumbent carriers were unwilling to meet minimal FCC consumer choice requirements."

"It remains to be seen whether the pricing and other details will in fact give consumers the same choice of devices and applications that they have on wireline Internet connections," said Sascha Meinrath, research director of the Wireless Future Program. "It is not enough to simply claim support for 'any' application and device. Verizon plans to certify equipment themselves; by definition this means that they will not let certain devices on their network. This and other inconsistencies leave me deeply concerned."

"Verizon's announcement is an acknowledgment that the carriers' business models can accommodate more openness, but the extent of this openness is not yet clear. We believe the FCC should still provide regulatory certainty that the FCC's Carterfone consumer choice rules apply equally to wired and wireless services," stated Mr. Calabrese.

For background on the Wireless consumer choice issue, see this New America paper by Columbia Law Professor Tim Wu:

http://www.newamerica.net/publications/policy/wireless_net_neutrality

Additional background is available at www.newamerica.net/wireless_future.

CONTACT:

Michael Calabrese
Sascha D. Meinrath
202-986-2700

Here's a piece of PR masterwork from the folks at Verizon. For those who have been following the Open Platform debate (an initiative to require an open platform for interconnection of any devices/applications on a small piece of the upcoming 700MHz band that's going to be auctioned in January), you know that Verizon has been 100% against the idea. Verizon has been so entirely against the idea that they contacted the Chairman of the FCC asking that he kill it while, at the same time, they sued the FCC to prevent open platform requirements from going through.

Verizon, in a nutshell, hates the idea of an open platform for the interconnection of devices and applications -- to the point that the FCC Chairman called me and Harold Feld into his office to attempt to get the Public Interest Spectrum Coalition to back off on our open platform demands.

So what's this news really about? Basically, Verizon wants to be able to charge customers (at a price and rate still to be set) to access the services and applications they want on the devices they own. Verizon is, attempting to turn the applications you have bought and paid for (or downloaded for free if you're using free open source software) into commodity so that they can charge you a second time to access them via the Verizon network. In essence, Verizon is adding a corporate tax that goes straight into their coffers for the so-called "privilege" to run the services and applications you want, on the devices you've already bought and paid for. On a digital communications network, data is data is data -- the network doesn't care if the packet is voice, video, text, or any other media -- an open platform should require that data is treated the same way as it is on a DSL line. The idea that Verizon would be able to differentiate among services (and charge users a second time to access an "open platform") is ridiculous. Yet without some sort of rule to stop this form of corporate malfeasance, it's unlikely that we'll ever see cellular DSL-esque services from Verizon.

However this plays out, it's quite likely that Verizon will now be going after the C-band in the January 2008 spectrum auction. Between this and the Android announcement by Google, we could see a fairly interesting bidding war between the two.

From money.cnn.com

Verizon Wireless to Introduce 'Any Apps, Any Device' Option for Customers in 2008

New Open Development Initiative Will Accelerate Innovation and Growth

November 27, 2007: 07:30 AM EST

BASKING RIDGE, N.J., Nov. 27 /PRNewswire/ -- Verizon Wireless today announced that it will provide customers the option to use, on its nationwide wireless network, wireless devices, software and applications not offered by the company. Verizon Wireless plans to have this new choice available to customers throughout the country by the end of 2008.

Read more...

Continue reading »

Just when we'd hoped that the US administration might finally begin working on a national broadband strategy, it comes out against one of the key components that more successful countries have implemented. Preston Gralla hits the nail on the head -- from www.computerworld.com/blogs/node/6153:

U.S. Justice Dept. should stay out of net neutrality debate
By Preston Gralla on Fri, 09/07/2007 - 2:04pm

It's clear that the U.S. Department of Justice is far more interested in politics than it is in enforcing the law. What else to make of its recent bizarre criticism of network neutrality proposals?

In a press release, the department said that it had cautioned the FCC against any network neutrality proposals because, the proposals could "deter broadband Internet providers from upgrading and expanding their networks to reach more Americans."

First off, that's flatly wrong. The U.S. has among the worst broadband penetration rates and speeds in the developed world, because the government refuses to take actions to ensure we have adequate broadband coverage.

Secondly, net neutrality would increase competition, not harm it, and there would be better broadband services overall.

That's not the real point, though. The point is that the Department of Justice is supposed to enforce laws, not push specific political positions. Under Attorny General Alberto Gonzales, the department was all about politics, not law enforcement. But he's resigned, and so many people assumed the department would go back to its roots of enforcing laws.

It's clear, though, that the problem is deeper than Gonzales, as this latest statement proves. Whether you are for or against network neutrality, you should hope that our Department of Justice would stay away from politics. For the moment, though, it's as knee-deep in partisanship as ever.

Glenn Fleishman has an excellent analysis of the recent 700MHz auction rules for "open platforms". For those of us who've been fighting for opening up access to the public airwaves, these rules offer a teeny-tiny baby step in the right direction. Unfortunately, there are loopholes large enough to drive the Titanic through, and even this incredibly modest proposal only covers a tiny section of one of the block of what is going to be auctioned. Meanwhile, as the analog TV frequencies are switched to their digital TV frequencies, we have (quite literally) a once-in-a-lifetime opportunity to open up the public airwaves that is being squandered at the altar of quick money (e.g., license auctions) while ignoring solutions that may maximize public utility.