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June 16, 2006

The Significance of Net Neutrality to America's Future

The Technology Formerly Known As Phone does not want you to know about the significance of Net Neutrality for the future of America’s ability to develop and produce innovative products and services on the Internet.  How did we get to this place, and what can you do to change it?

Back when telephone exchanges were still being built across America, the U.S. Congress passed the Telecommunications Act of 1934. 

The bill had five titles.  One of the titles (Title II) created the FCC.  The purpose of the FCC was to regulate telephone, which was a new technology that served the public interest by improving communications between towns, cities, regions, and states. Because telephone services were valued as a public benefit, Congress designed the 1934 Telecommunications Act to ensure that all citizens had COMMON ACCESS to telephone technology. Under Title II, telephone was regulated as a Common Carrier – everyone was billed at a standard rate, even if their home was 20 miles off the main phone line.  Throughout the 20th century, telephone was regulated (by the FCC) as a Common Carrier.

This extensive and informative post is written by someone who, by her own definition, "has strong public policy and software interests, who posts as readerOfTeaLeaves, enjoys Open Source  technologies, works on Macs, and likes Flash, Dreamweaver, and digital video. Reads software code, legislative statutes, sci-fi, New Yorker profiles, Scientific American, and anything else that captures her interest at any given moment".  I thank her for the research and thoughtfulness she put into this and pass it along for you.

More after the fold plus an entreaty to call Senators Murray and Cantwell, who have not made their positions on this important issue clear yet.

Fast-forward to the 1990s, when the sound waves that pass along phone lines were captured and converted to digital sequences like: 0011010110101001010100011.

The methods through which sound waves are converted into sequences of 0’s and 1’s (i.e., “digits’) are a topic for a different post.  The relevant point for this diary is that once  sound waves were converted digitally, and encoded as sequences of 0s and 1s (i.e., 001110101001000…), then powerful interests were ready to claim that The Technology Formerly Known As Phone should be legally redefined as an “information service”.

Which leads us to the brouhaha over Net Neutrality

An “information service” is not subject to Common Carrier legislation.  “Information services” are not regulated. If you own the pipes, wires, and cable through which “information services” are delivered, then you just got yourself a river of gold.

Where sound waves once traveled across wires in the air, data packets of digitally encoded ‘data’ speed along networks of cable, wire, and broadband.  ‘Digital data’ is designated as an “information service.”  But there’s a catch that the telecoms are not explaining to Congress – in order to encode, transmit, or ‘read’ DIGITALLY ENCODED information, you must have software.

In other words, the telecoms are lobbying Congress AS IF the only layer of the Internet that matters are the underlying, physical infrastructure – the wires, the broadband and cable that you can see, feel, touch, haul around on a truck.  What the telecoms have not explained to Congress – and what most Representatives and Senators have failed to understand – is that without SOFTWARE to read all that digital data, the system is useless.

Those who work with software: ISPs, Microsoft, Adobe, eBay, Google, Yahoo, Bank of America and other eCommerce providers, were late to the party.  The SOFTWARE LAYER that makes the Internet interesting – that creates the economic opportunity, engages collaborative economic projects – that layer is built on a set of assumptions that is entirely different from the agenda of the Pay to Play Telecom interests.  To Congress, we’ve remained invisible.  Our interests are being sabotaged by the telecoms.

The Technology Formerly Known as Cable Television just swallowed up the newly digitized sound, audio, video, text, and image files that make their way around the Internet to your computer.  These digitized files, now legally designated as “information services,” **are not protected** by Common Carrier regulations. 

Can you say, “Ka-chingg!!?”

Rewind: the 1990s.  Sound waves were digitized for transmission, while cable companies laid miles of cable -- waiting for the day when they could go to: (1) the Courts, and (2) Congress for subscriber-based access to the Internet that would not be constrained by Common Carrier restrictions or regulation.  After 2000, they got their chance.

In a 2005 case referenced as "Brand X," a US Circuit Court decided that The Technology Formerly Known as Phone had morphed into something different.  The "Brand X" decision meant that `phone' (or sound files) would now be legally designated as an "information service", which placed 'phone' (telecom) outside the legal boundaries of the Common Carrier Title II provisions of the Telecommunications Act.   (Cable had been reclassified by the FCC in 2002 as an 'information service", which placed it under Title I as of 2002.) As a result of the "Brand X" decision, courts ruled that The Technology Formerly Known As Phone would be reclassifed as an "information service", which MOVED IT OUT OF Title II Common Carrier protections, and placed it under Title I.

(The telecoms wanted reclassification, because anything fallling under Title I does not have Common Carrier protections for consumers.)

But what would the regulatory agency - the FCC - decide?  Would they agree with the court?
In August 2005, the FCC opined that The Technology Formerly Known As Phone, reformatted into sequences like:  001001010001110, was not subject to the social contract and legal frameworks applied to Common Carriers.  The FCC redefined digital communications as "information services."

(The FCC created "four principles" in Aug 2005 when they reclassified 'phone' as an 'information service.' Principles are nice handwaving, feel good actions that carry no legal enforcement power. So the fact that the telecoms say there are 'principles' to protect the network is technically true, but virtually meaningless. Pun intended.)

The Technology Formerly Known as Cable Television started morphing into a behemoth built miles of cable, a legal decision in “Brand X”, and an FCC ruling.  The behemoth needs the 2006 Telecommunications Act in order to ensure that no whiff of Net Neutrality will be introduced into the legislation, no regulatory agency will oversee the charges billed for “information services,” and no Congressional oversight will interfere with a long, bountiful revenue stream build on Tiered Access to Information Services. 

Armed with the “Brand X” legal decision from 2004, and also the FCC pronouncement from Aug 2005 the telecoms are persuading your Senators that email, phone, web browsing, downloading audio and video files are all: "information services."  They’re ‘entertainment.’  They require ‘subscriptions.’

The telecoms are telling Congress, “We’ve invested in cable and now we want our ROI (return on investment).”

Last I checked, no member of Congress has experience writing even a line of PHP, C#, C++, Perl, Java, or any other PROGRAMMING CODE language.  Congress knows LEGAL CODE.  Whereas those familiar with PROGRAMMING CODE are damn late to this party.

The SOFTWARE LAYER, the code that makes the Internet a wonderful, exciting place, is literally “invisible” to Congress.  So all the Net Neutrality protections that are absolutely critical to those of us who work with the SOFTWARE LAYER: equal access, collaborative environments, best practices, cooperation and consensus… all those factors that have driven the ECONOMIC VITALITY of the Internet – the search engines, the browsers, the apps… Congress doesn’t have a clue why Net Neutrality provisions that are so absolutely crucial to our economic, social, and technical requirements REQUIRE Net Neutrality provisions be incorporated into the 2006 Telecommunications Bill.

With several exceptions –  Rep Jay Inslee, whose district includes Redmond, WA;  Zoe Lofgren, whose district covers Silicon Valley --  Congress is absolutely clueless about why some of us are almost hysterical about the urgency of ensuring that Net Neutrality provisions are included in the 2006 Telecommunications Act. 

It has absolutely nothing to do with blogging, and everything to do with eCommerce, with accessing Open Source information, with collaborating on innovative products.   You can lay cable and broadband from here to Pluto and they’ll never create the economic opportunity and VALUE that has been added by SOFTWARE requirements of digital technology.   It’s the SOFTWARE LAYER of the Internet that ACTUALLY BRINGS VALUE – creates services, generates excitement, develops new products, streamlines organizations, and makes information cheaper for government and businesses.

“Information services”, aka, The Technology Formerly Known As Cable,  can add tier after tier after tier of payment requirement:

So... want that eComm app?  Ka-ching! Pay more for THAT SERVICE.
So... want to put video files online? Ka-Ching! Pay more for THAT SERVICE.
So... want to access iTunes... well... if you are a PREMIUM SUBSCRIBER, you can get there in one mouse click. Otherwise… expect to encounter some Serious Browser Hang Time and expect to click through 3+ ads paid for by our 'premium content providers’ while you hapless schmucks attempt to access iTunes.

The logic of broadband is the logic of subscriptions.  You want the good stuff?  You gotta pay extra.


Currently, the US Senate is barraged by telecoms claiming that they've 'invested' in miles and miles of broadband and cable, AND ALSO that what travels over the wires “should not be regulated.”

The telecoms, and members of the United States Senate, are dismissing Net Neutrality as alarmist.  If there’s a problem, they claim, anyone can take it to the FCC. On a case-by-case basis… so if you are a gazillionaire with 20 lifetimes to wait your turn before the FCC, then by all means support the 2006 Telecommunications Act!  Forget about the need to protect the innovators in the software layer.  Ignore the fact that the entire software industry is deeply distressed over Net Neutrality -- what the heck do coders know about the Internet, after all?   Be fooled into believing that this is about the ROI for the telecoms… just don’t expect fast upgrades to your browser, your email software, or a host of other Internet-driven technologies that require collaborative, cost-effective, open Internet access to create.

The telecoms claim that they need to ‘charge more for access’ in large part because they’ve ‘invested.’  As if the telecoms are THE ONLY investors in the Internet?!! 

Consider the following:

    * Are you a US taxpayer?   If so, you've 'invested' in ARPAnet, which was the early skeleton of today's Internet.
    * Do you pay taxes to support K-12 education?  K12 has "invested" hugely in technology to assist in learning -- and now, they'll need to use YOUR tax dollars to 'subscribe' to whatever Tier of Service the telecoms require.
    * Do you pay city, county, or state taxes? If so, you've helped 'invest' in online content. Oh, by the way… the telecoms could never have laid that cable without the permits issued by your local government.
    * Did you ever pay for more education? College? University? If so, then your efforts to gain skills for the Information Age were your personal investments in the growth and development of the Internet.
    * Do you have a phone bill? Do you pay it?  Ask yourself what kept the telecoms operating long enough to lay all that cable and DSL line for which they will now charge you even more -- because a DC Circuit Court determined that "broadband" is an "information service"? 
    * Do you write, sell, distribute, or purchase software?  If so, you've "invested" in the "software layer" of the Internet.
    * Did you 'invest' in a computer for your home or office? If it has a modem, a wireless connection, or any other access then you have made a personal ‘investment’ in the growth of the Internet.

I assume that the telecom lobbyist is not evil.  But they are ill-informed, and too focused on one narrow slice of a very, very big pie. 

The software companies have not yet educated Congress about the significance of the ‘software layer’ that cannot innovate without solid Net Neutrality protections.

Right now, US Senators need to understand:

1. ALL OF US have invested in the Internet.
2. Just because the info that passes along the wires and cables is digitally formatted does not mean that Common Carrier provisions should no longer apply.
3. Internet innovation has **originated mostly from** the "software layer": web browsers, email applications, video applications, eCommerce – all these are in the software layer that is currently ‘invisible’ to Congress, and are based on the legal principles encapsulated by Net Neutrality language.
4. Tell your Senators that legislating on the basis of the underlying 'wires and routers' (or “hardware”) layer of the Internet is bad policy -- the 'software layer' DEPENDS UPON equal access, collaborative social interactions, and a level playing field.  The “software layer” REQUIRES Net Neutrality provisions in the 2006 Telecommunications Act.  Without the Net Neutrality protections, we’re unable to keep growing the Internet.
5. Protect the “software layer”.  Support Net Neutrality.  Today.

Call Senators Murray and Cantwell and ask them to vote for Net Neutrality

Sen. Murray's point person on NN = "Evan Scholz" (202) 224-2621

Sen. Cantwell's point person on NN = "Michael Daum"

Thanks.  This is an important issue.

Posted by Lynn Allen on June 16, 2006 at 08:03 AM in Media, Policy, Taking Action | Permalink


Drop by Westlake Center today at 11:30 to Join Darcy Burner and others protesting Bush's fundraising visit to Medina...


Posted by: CoolAqua | Jun 16, 2006 9:10:52 AM

One of the best overviews of the history of this issue I've seen. At the same time, a scary reminder of how complicated this issue is, and how easy it can be for a disinformation campaign to steamroller Congress into letting NN die by ignoring the problem.

And thanks too, for posting the names of the policy wonks for each of the Senators; it cued me to try the same thing with our (Florida's) democratic senator. The person who answered the phone there, told me she could talk to me about network neutrality (yet didn't have a clue about what the COPE act was--which was how I began the question), didn't want to volunteer that Matthew Benham is Bill Nelson's point person on telcom and net neutrality...but she finally did.

Posted by: PBCliberal | Jun 16, 2006 9:25:15 AM

...and looks like she wasn't very forthcoming.

Matthew Benham appears to be a "legislative correspondent," just a few ticks up from "mail clerk." He's one of the folks whose most common phrases is: "Thank you for writing Senator Nelson about your concerns."

Posted by: PBCliberal | Jun 16, 2006 9:35:34 AM

I called Maria Cantwell and Patty Murray offices around 2:30 PM EDT, gave name, hometown then asked for the NN point man.
In both cases the point man was not available.

"OK then what about another staff member on NN?

Well he's the man.
Try calling again on Monday.

"OK I'll call again on Monday.
[Both offices keep a tally of pros and cons, yes or no for each issue.]

"And put me down in strong support of NN.
Against any sellout or giveaway to the telecoms.
The internet belongs to American citizens.
Corporate hands off.

"But do Maria/Patty HAVE a position on the Tuesday NN vote?

No official position at this time but she's in favor of open communication.

"OK but she doesn't HAVE a position on the Tuesday vote?

"Why DOESN'T she have a position, with her experience in the communications industry and the Senate?


[I describe the typical Congressional Representative for the receptionist:]
"It concerns me that our Representatives ask us to be patient while they "study the issue" or "get more input from our constituents".

"This one-way communication continues right up until the vote, after which any meaningful discussion is moot and there's nothing left to do but commisserate about the loss of more citizens' rights.

"We shouldn't have to call and pester you folks for our Senator's' position, swarm your fax machine and generally make a nuisance for you.

"But the Senator's staff should have already studied the legislation, have already prepared the Senator to discuss the bill's implications with their constituents.

"The Senator should HAVE a position AND the explanation of how they arrived on that position - well ahead of their vote.

"The lack of a position just tells constituents their representative lacks diligence and confidence of conviction and brings into question their leadership ability, maybe even their integrity.

"We need TIMELY two-way communication with our Senators on these important issues affecting our Constitutional rights.

"Those newsletters and post mortem letters just don't cut it any more.

"OK thanks for listening to me and I hope you have a great weekend!

Posted by: justintime | Jun 16, 2006 4:13:20 PM

Wow! Nicely done. It does mean we have a lot of work to do on Monday.

Posted by: Lynn | Jun 16, 2006 4:26:35 PM

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