Broadband Primer

http://www.democraticmedia.org/primer.html


What is Broadband?

"Broadband" refers to high-speed Internet connections that allow for transfers of information at rates far faster than those of dial-up modems. While the Internet has often been jokingly referred to as the "World Wide Wait" on account of slow downloads, Broadband connections allow people to view streaming media at speeds closer to what might be associated with television, rather than the herky-jerky experience that characterizes dial-up modems. Transfer speeds for Broadband are up to 50 times faster than via dial-up modems, creating the opportunity for people to download mp3s (compressed digital audio files) or films without having to wait for hours.

Broadband connections are offered on a variety of platforms, including DSL (Digital Subscriber Line), cable, satellite, and wireless.

Will Broadband become the norm any time soon?

According to JD Power and Associates, "High-speed ISP subscriptions account for 13 percent of all residential ISP subscriptions in the United States. This penetration increased significantly from 5 percent in 2000. Among current dial-up subscribers, 10 percent state that they are 'extremely' or 'very likely' to switch to a DSL and/or cable modem connection in the next six months." Analysts believe that the number of Broadband users will rise dramatically between 2001 and 2004, estimating over 60 million users in the United States (source: eMarketer). Within 5 to 10 years, Broadband will replace dial-up modems as the standard means of Internet connection.


What does "Common Carriage" refer to?

Dial-up modems allow for the transfer of information over phone lines, and are thus governed by a set of nondiscrimination rules applying to telephone networks. Mirroring the US policy for the public highways, the telephone industry has been required to serve consumers as "Common Carriers." The policies of common carriage--particularly the requirement that phone companies not discriminate against information by halting, slowing, or otherwise tampering with the transfer of data--have been central to the growth of the Internet into a diverse, competitive medium. Common carriage permitted the development of the Internet Service Provider (ISP) marketplace, affording users the opportunity to go online via one of the more than 7,000 companies that compete with such giants as AOL and Microsoft.

What does "Open Access" refer to?

Open Access is the principle that has governed the Internet since its inception. It is synonymous with the idea of open architecture. The Internet was originally designed as a pipeline that would treat all information in a nondiscriminatory fashion, a design referred to as "end-to-end" because no gatekeeper could control how the data would be treated. The common carrier rules governing telephone networks contributed to the Net's open access design.

Why is Open Access such an important issue?

Since Broadband will become a dominant method of Internet connection, the lack of common carriage protection and open architecture safeguards pose a threat to all Net users. Cable and satellite companies, for example, are not required to operate as open access networks when providing high-speed Net service. And local phone companies are lobbying to remove or weaken their open access requirements when they provide consumers with high-speed DSL services.

Without open access safeguards there is a tremendous potential for large Internet service providers (ISPs), such as AOL-Time Warner or Verizon, to control the flow of information. For example, without a nondiscrimination rule, there is nothing to stop these large ISPs from providing their own content first class treatment and the highest download speeds, while nonaffiliated content would be forced into the online "economy" (or even slower) class. For the many groups that will not be able to afford the ISPs prices for first class treatment (including nonprofit groups, independent artists, and others), this likely would severely limit their Web presence. For without open access, the rules of Internet commerce and communications will be determined by the telecom giants, rather than the public.

For more information on Open Access, see CDD's Open Access page.

What does "convergence" refer to?

Convergence refers to the merging of previously distinct media into one product or service. various home recreational technologies into one marketable whole. For instance, several companies are creating boxes for deployment that include gaming capabilities (e.g., Sony's Playstation 2) as well as high-speed Internet capabilities. The media and entertainment industries believe that the creation and deployment of a product that combines television, home stereo, telephone, gaming systems, the Internet, and other technologies will be an extraordinarily marketable good. As AOL-Time Warner CEO Steve Case said in a recent keynote address, "Every decade has some word associated with it. In the '80s, it was the PC. In the '90s, it was the Internet. For the rest of this decade, the key word is going to be convergence."

What is "Interactive Television?"

Interactive TV (ITV) represents the merging of television and Internet capabilities, and is being created in various forms. Some will allow for viewers to watch TV while "chatting" online or sending IMs (instant messages); some have personal video recording (PVR) capabilities that allow users to set preferences in order for the set-top box to automatically record not only their favorite shows and movies, but other shows and movies that the box might "suggest." Others allow the user to click on parts of the screen during a show or commercial to find out more about that object, a feature that ad-makers expect to help create a huge market of interactive consumers.

However, the same concerns that consumer groups have regarding Open Access also apply to ITV, which is expected to be in nearly 40 million US households by 2004. Additionally, there are significant privacy threats that are being embedded into the architecture of ITV-an industry being built around the premise of data collection. CDD's report, "TV that Watches You: The Prying Eyes of Interactive Television," details the extensive data collection practices of the ITV industry.



Get informed! For more information on current Internet issues, visit CDD's Issues page.

Broadband Bill of Rights

http://www.democraticmedia.org/billofrights.html

The impending marriage of television and the Internet, consummated with the help of next-generation set-top boxes that will add online access to the cable industry's multi-channel offerings, promises to extend the reach of the Internet into millions of US households. But at what cost? Will the Internet, historically an open, diverse, and democratic environment, fall under the sway of cable's closed, top-down architecture? Will our online choices effectively be limited to a handful of featured sites on the cable company's electronic program guide? Will the pay-per-view paradigm, in which premium fees are charged for special-interest and on-demand programming, be applied to the World Wide Web? Even at "discount" rates (for those who elect to add high-speed Internet access to their cable subscriptions, or who accept other "bundled" offerings), this may be too high a price to pay for broadband delivery.

These are among the issues that must be addressed as the Internet evolves from a phone-line, PC-based communications system into the entertainment and e-commerce extravaganza known as interactive televisions (ITV). To the extent that ITV brings the Internet (at vastly increased speeds) to millions of households that lack PCs, it will prove beneficial. But we should not be asked to trade our online freedoms for the speed and simplicity of cable's broadband Internet. The democratic traditions of the original, "dial-up" Internet, in short, must be preserved in the broadband era.

To that end, and as a means of measuring the performance of cable companies against the standards of the open Internet, the Center for Digital Democracy offers this Broadband Bill of Rights, 10 fundamental principles for ensuring the future openness and diversity of the Internet. Although efforts to forecast the future of the Internet are often futile, we share the sobering assessment of The Economist, which expressed the fear recently that "…the last decade of the 20th century might come to be seen as an all-too-brief golden age of openness and innovation that was fatally undermined by short-termism and greed." Fortunately, there is still time to intervene in the design and deployment of the new broadband networks, and to make sure that the new system serves as effectively as it sells.

The Internet has long been characterized by the free flow of information, supported by the basic principles of openness (of access), equality (of data), diversity (of content), and freedom (of expression). Network growth and market forces alike will inevitably yield various embellishments on basic data delivery. Some of these variations will arise in response to traffic congestion and the need to distinguish among different data types; others will result from efforts to exploit the demand for premium service, including expedited transport using proprietary networks. But neither the evolution of networking technologies, nor the introduction of value-added services, should be permitted to undermine the fundamental openness of the Internet, either by creating artificial bottlenecks or otherwise constraining unnecessarily the free flow of network traffic. For these reasons, CDD recommends the adoption of the following 10 principles to maintain the basic open, democratic, nondiscriminatory character of the Internet.

1. Choice: Open-access regulations are needed to ensure that independent Internet service providers (ISPs) and content producers will be able to offer their services on all cable, DSL, and wireless platforms, enabling users to enjoy the same full range of programming via broadband that is now guaranteed in the dial-up Internet.

2. Nondiscrimination: While it may be necessary to arbitrate among competing claims on network resources, no transport-management schemes (e.g., policy-based routing) should be used simply to favor certain programming over other content, by artificially constraining "competitive" or nonaffiliated fare.

3. Privacy: Existing privacy regulations (e.g., the Cable Communications Policy Act of 1984, as amended by the Cable Consumer Protection and Competition Act of 1992) need to be extended to include all interactive media, regardless of the means of delivery, with oversight by the Federal Trade and Federal Communications Commissions.

4. Open Systems: The Internet's "end-to-end" architecture must be preserved, and to the extent that "walled gardens" offer only a subset of Internet content, they should be clearly labeled. So-called "managed content areas," designed to highlight a network owner's proprietary or affiliated content, should include clearly marked "exit paths" to the Internet at large.

5. Interoperability: Set-top boxes, which are poised to become one of the most important household appliances, should be both nonproprietary (i.e., interoperable among cable systems) and transparent (i.e., user configurable). Subscribers should not be expected to host "black boxes" (including hard-disk video recorders that surreptitiously reserve a portion of disk space for targeted advertising) as part of their ITV implementations.

6. Public Interest Obligations: The public-interest principle, more often than not honored in the breach in the world of broadcast, and still under consideration for digital television (DTV) broadcasters, should inform the world of ITV as well. A small portion of the extra capacity that broadcasters have gained in the switch to DTV, as well as the enhancements that cable operators will offer under ITV, should be devoted to community-based informational and educational purposes.

7. Civic Content: The broadband revolution is too valuable an opportunity to be squandered solely on entertainment and commerce. The technology should be harnessed, in some small measure, to serve the needs of civil society, including enhanced campaign coverage, community forums, cultural programming, and noncommercial information exchange.

8. Educational Opportunities: The new interactive media of broadband should serve all aspects of lifelong learning, meeting the educational needs of young and old alike through pre-school programming, supplementary classroom material, distance learning, vocational training, and other educational fare.

9. Children's Programming: The meager requirements for children's programming on television (currently three hours of educational and informational programming per week) should be supplemented in the broadband era. Existing protections against excessive and misleading advertising during children's TV programs, similarly, should serve as a guide for advertising in online programming for children and youth.

10. Digital Divide: Even as we close the gap that separates the connected from the unconnected, we must make certain that new, more subtle forms of digital inequity do not arise, in which the haves vs. the have-nots are replaced by the haves vs. the have-mores. Accordingly, Universal Service requirements should be updated to include advanced telecommunications services.

X Marks the Spot...Supreme Court Poised to Define the Future of the Internet

http://www.democraticmedia.org/news/washingtonwatch/BrandXfiles.html


Even the opponents in the case of FCC v. Brand X Internet Services, now under review at the Supreme Court, agree on one thing:  "This battle is over the future of the Internet," as FCC Commissioner Michael Copps expressed it.  At stake is whether the broadband Internet will preserve the dial-up Internet's longstanding open, diverse traditions, or whether it will evolve into something much closer to the closed platform of multichannel video.

The Brand X case, so named for the Santa Monica-based Internet service provider (ISP) that was denied access to cable's high-speed data lines, made its way to the Supreme Court following the Ninth Circuit Court of Appeals October 2003 decision to overturn the FCC's classification of cable modems as an unregulated information service.  Thus the case will finally determine, as the Bush Department of Justice told the Supreme Court in its appeal of the lower court's decision, "… the regulatory classification under the Communications Act that will apply to broadband (i.e., “high-speed”) Internet access services in the United States.”  At present, such service reaches over half of all Internet subscribers, and cable broadband service leads the pack among high-speed Internet providers, reaching more than 19 million US homes.

Traditionally, dial-up Internet access has been classified as a telecommunications service, under which network operators must “charge just, reasonable, and nondiscriminatory rates”; ensure interconnection with independent ISPs; and support universal service goals related to closing the digital divide and expanding educational access.

The cable service classification, in contrast, comes with no such nondiscriminatory guarantees--although cable operators are obliged to pay a 5 percent franchise fee to the communities in which they enjoy their near-monopoly status.  Such revenues, amounting to billions of dollars annually, support a variety of municipal activities, including the public, educational, and governmental access channels that add a measure of community participation to an otherwise corporate-dominated TV landscape.

The FCC in March 2002 opted for an alternative to both the telecommunications and cable service standards, declaring that cable modems fall under an interstate information service category--a deregulatory black hole in which narrow private interests get to determine what rules, if any, are applied to high-speed service.  Thanks to the FCC's decision, neither franchise fees nor ISP access requirements stand in the way of monopoly broadband profits. 

The FCC's ruling was especially galling to cash-strapped cities, which were forced to forgo some $470 million annually in potential cable modem franchise fees.  The cities, unfortunately, were equally opposed to the Ninth Circuit's decision, since that ruling, which defined cable Internet access as a telecommunications service, also placed cable modems beyond the reach of franchise fees.  The Supreme Court, in accepting the FCC/DOJ appeal, denied the National League of Cities/US Conference of Mayors petition for reconsideration of the Ninth Circuit Court's Open Access decision.

Even in defeat, however, the cities' representatives successfully captured the essence of the case that is now before the high court, warning of the "absolute control" that the cable industry currently wields over the vital last-mile broadband connections to the home:  "That cable operators have, so far at least, voluntarily chosen not to exploit that control more fully by blocking some Internet content--or, more accurately, that operators have made the editorial decision that, at this time, it is in their marketplace (or strategic regulatory) interest to provide unfiltered Internet access content—does not, and cannot, alter the fact they possess such control.”

FCC Chairman Michael Powell, meanwhile, more concerned with broadband deployment than with broadband democracy, is looking forward to the final resolution of the Brand X case. "High-speed Internet connections are not telephones," Powell declared, "and I'm glad the Supreme Court has agreed to review the 9th Circuit’s ruling that they are. The 9th Circuit's decision would have grave consequences for the future and availability of high-speed Internet connections in this country. As the Commission is uniquely charged with the task of promoting the deployment of such advanced services to the public, we look forward to our opportunity to present our case before the high court."

Representatives of the public interest, finally (including the Consumer Federation of America, Consumers Union, and the Media Access Project, which is serving as CDD's counsel in the Brand X case), offer an important reminder--that high-speed Internet connections alone will mean little if the Internet itself is transformed into a closed system.  "Open communications networks," the consumer groups point out, "have been at the core of the American economy for centuries.  Nondiscriminatory access to transportation and communications networks has always been essential to a thriving economy, whether it was railroads, the telegraph or telecommunications.  In the digital age when communications and commerce converge, open communications networks are even more important.  The open environment of the Internet was the source of dynamic innovation in the digital economy in the 1990s, when nondiscriminatory access to telecommunications network was guaranteed."

What these opposing viewpoints really illustrate is the urgent need for the U.S. to develop a comprehensive new policy for broadband (covering cable, DSL, and wireless).  We must combine the best aspects of two, now-separate approaches.  First, broadband networks must be required to serve their community, through some form of local agreement (for "community bandwidth," public telecommunications services, etc.).  Second, they must also be required to also operate in an open and nondiscriminatory manner, reflecting the heritage of the Internet itself.

The Brand X case, then, is nothing less than a battle for the soul of the Internet--and for the public's First Amendment rights in the broadband era. While the cable industry is intent on transforming the Internet into an extension of its tightly controlled cable business, it is critical that we maintain an open, nondiscriminatory platform for the exchange of ideas and information. The Internet must not become the preserve of any one media or telecom industry. Rather, it should reflect the highest aspirations of our democracy: the free flow of information, unimpeded access to all manner of content, and dissemination of the broadest diversity of viewpoints.

The government's brief in the Brand X case is due on 21 January 2005, with the MAP/CDD brief following on 22 February and oral arguments on 29 March.  The court's decision itself could come as early as June.

Links:

Alliance of Local Organization Against Preemption: The National League of Cities, United States Conference of Mayors, National Association of Counties, International Municipal Lawyers Association, and the National Association of Telecommunications Officers and Advisors (NATOA) collaborated to form the Alliance of Local Organization Against Preemption (ALOAP) in response to the FCC's classification of cable modem service that prohibited municipalities from collecting franchise fees on such service.  The ALOAP page on NATOA's website offers a comprehensive list of documents pertaining to the Brand X case.

Media Access Project Statement on Supreme Court Order Granting Certiorari in Brand X v. FCC (PDF)

Statement of Consumers Union and the Consumer Federation of America on the Supreme Court’s Decision to Grant Cert in the Brand X Case

EarthLink Statement on Supreme Court Decision on FCC Brand X Appeal

ACLU's brief on the Brand X case (PDF)

MAP Press Release: Ninth Circuit Court Rules in Favor of Open Access, Against FCC Decision (PDF)

The Ninth Circuit's Brand X Decision (PDF)

The National League of Cities, the U.S. Conference of Mayors, and the National Association of Counties, et al, Petition to the Supreme Court Requesting a Review of the Brand X Decision (PDF)

FCC and Department of Justice petition Supreme Court to overturn Brand X decision on Open Access (PDF)

Cable industry petitions Supreme Court to overturn Brand X decision on Open Access (PDF)

Verizon brief in support of certiorari petition to Supreme Court (PDF)

SBC, BellSouth brief in support of review from Supreme Court (PDF)

EarthLink brief in opposition to certiorari by Supreme Court (PDF)

"Supreme Court Grants Certiorari in Brand X Case," Tech Law Journal, 3 Dec. 2004

Annalee Newitz, "Brand X," AlterNet, 29 Dec. 2004.

James Grimmelmann, "What's at Stake in Brand X," LawMeme, 17 Dec. 2004

Karl Bode, "Brand X Battle," Broadband Reports.com

"Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM," Tech Law Journal, 8 Sept. 2004

"Office of the Solicitor General Backs FCC in Brand X Case," Tech Law Journal, 1 Sept. 2004.

Josh Long, "Court Decision Stymies FCC Broadband Policy," Phone+, 7 Oct. 2003

ACLU, "No Competition: How Monopoly Control of the Broadband Internet Threatens Free Speech," July 2002

Columbia Telecommunications Corporation, “Technological Analysis of Open Access and Cable Television Systems,” December 2001