Subject: [NEXTEL-1] REMARKS OF MICHAEL J. COPPS -“THE BEGINNING OF THE END OF THE INTERNET?

From: [email-masked]
Date: Fri, 10 Oct 2003 15:13:43 -0400

REMARKS OF MICHAEL J. COPPS
FEDERAL COMMUNICATIONS COMMISSIONER
“THE BEGINNING OF THE END OF THE INTERNET?
DISCRIMINATION, CLOSED NETWORKS, AND THE FUTURE OF CYBERSPACE”
NEW AMERICA FOUNDATION
WASHINGTON, DC
OCTOBER 9, 2003

Thank you, Michael, for that kind introduction.  More than that, thank you for the
creative thinking you and your colleagues here at New America always manage to
impart to the great issues confronting communications.  There are a lot of tangled
issues to resolve as we work to bring the wonders of the digital revolution to
each of our fellow citizens and you bring clarity and creativity to so many of
them.  So I appreciate being invited back to the Foundation.  The last time we
were together, on Capitol Hill, we were discussing the critically important issue
of media concentration.  At that time, we focused on action the Commission was
taking against openness, access and competition in the media.  Today, the New
America Foundation, always on the cutting edge, has enlisted in the next great
battle.  The next great battle of the same continuing struggle.

 The same forces are arrayed on this field as on the last one.  Innovators,
consumers and competitors once again face an entrenched axis with growing
potential to stymie competition, deny consumers access and prevent innovations not
under their control. But this time the battle is not over media consolidation.
This battle is over the future of the Internet.

 Americans take pride in their Internet.  From right to left, Republicans and
Democrats, rural and urban, we view the Internet as a place of freedom where new
technologies and business innovation and competition flourish.  For all our other
differences, we point to the Internet as an example of how things ought to work.
What made the Internet such fertile ground for this success?   For openers:
freedom, access, and wide dispersal of power.  From its inception, the Internet
was designed, as those present during the course of its creation will tell you, to
prevent government or a corporation or anyone else from controlling it.  It was
designed to defeat discrimination against users, ideas and technologies.

 This freedom has always been at the heart of what the Internet community and its
creators celebrate.  Anyone can access the Internet, with any kind of computer,
for any type of application, and read or say pretty much what they want.  No one
can corner control of the Internet for their own limited purposes.  It sounds good
so far, right?

 This Internet may be dying.  It may be dying because entrenched interests are
positioning themselves to control the Internet’s choke-points and they are
lobbying the FCC to aid and abet them.  The founders’ vision of the Internet is
being exchanged for a constricted and distorted view of technology development,
entrepreneurship and consumer preferences.  For its part, the Commission has
already made serious regulatory miscalculations that could endanger the freedom
and lifeblood of the Internet sooner rather than later. We seem to be buying into
a warped vision that open networks should be replaced by closed networks and that
traditional user accessibility can be superceded by a new power to discriminate.
Let this vision prevail and the winners will be entrenched interests with far
greater power than they have today to design and control the Internet of the
future. I am not singling out one specific industry here.  I am talking about any
company that controls a choke-point.  They may be doing what comes naturally and
they may be doing what they think is right, but the result may well be contrary to
the inherent dynamic of the Internet and to the needs of the American people.  If
these interests get their way, the losers will be innovators, technologists and
business users, for openers and -- more importantly -- legions of consumers and
citizens who make up the Internet community.

The life-threatening disease comes, strangely, in a prescription bottle.  Many in
industry and government prescribe closing off Internet openness a cure for
telecom’s ills.  They claim that all they are doing is “letting the market reign
supreme,” and “deregulating,” deploying the rhetoric of Libertarianism to serve
their agenda.  They are fond of railing against picking winners and losers when
they are in fact picking winners and losers themselves.  We’ve been in this same
place in other major debates at the FCC over the past two years.  The details may
differ; the direction is the same.  I believe that if the Commission’s present
mind-set is fully implemented, we will look back, shake our heads and wonder
whatever happened to that open, dynamic and liberating Internet that once we
knew.  “What promise it held,” we’ll say.  If that happens, history won’t forgive
us.  Nor should it.

 A funny thing happened as I was writing these remarks.  The Ninth Circuit Court
ruled in the Brand X case.  And it vacated the Commission’s troubling plan for
cable broadband service.  But even this important ruling has limited scope.  It
does not go, because it could not go, beyond cable to encompass DSL and any other
technology that could act as a choke-point and give a few people too much control
over the Internet.   Some argue that because of the ruling the FCC will not rush
forward in other areas until the issue is resolved in the courts.  I have no such
expectation.

Our ill-advised policy impacting the Internet is only one piece of a tectonic
shift across the whole wide range of telecommunications and media issues at the
FCC.  From media to telecom to the Internet and beyond, we appear to be rushing
toward breathtaking change in regulatory policy.  The Commission strikes me as on
course to replace open networks with closed systems.  It is permitting, even
encouraging, competition to wither in the face of centralization.  And it is
short-changing its responsibility to protect the public interest.

Not enough people outside Washington have paid attention to the momentous
decisions already taken.  With the exception of media concentration, wherein the
brazenness of what the Commission decided and the stealth process it used to get
there aroused the ire of millions of Americans, many of these other proceedings
remain inside-the-Beltway games even though they will cause gigantic seismic
shocks all across the country.  I don’t want that to happen.  I don’t think most
of you do, either.

 Back to the battle at hand.  Let me lay out the dangers I see in the Commission’s
proposals as they relate to the Internet and then offer some alternate thinking
that I believe would better protect the vitality, freedom and original vision of
the founders.

The Internet has already accomplished so much.  It has become an engine of
economic growth.  A tool of education.  A health provider.  An entertainer.  It
will change the ways we govern ourselves and grow to be, I believe, a dynamic
force against political oppression in regimes that are now closed.  The power of
the Internet resides, as its founders foresaw, in its decentralization.  There is
no central headquarters through which every communication is forced to pass.
Millions of dialogues occur simultaneously.  People share news, information and
experiences from anywhere to anywhere because even if they aren’t connected to
each other, even if someone tries to interrupt a certain connection, they can
route from open node to open node around the globe to find one another.  It’s more
than just empowering.  It may be the best and most democratic public forum that
has ever existed.

What made it this way?  What makes the Internet a place of freedom, technology
development, competition and business innovation?  What makes the Internet a place
that Americans, conservatives and liberals alike, point to as an example of how
things ought to work?  What regulation, deregulation, unregulation, whatever, made
it so that this dynamic and open platform developed as it did?  And as the
Internet enters its adolescence -- as it matures from the first hesitant steps of
its dial-up infancy to the exuberance and freedom of broadband -- how do we keep
it this way?

 These questions should be our starting point.  The Internet developed this way in
large part because it was allowed to grow without either governments or monopolies
stifling its openness and connectivity.  To understand this fully, you need to
start with some history.  It wasn’t that long ago that one network -- AT&T -- ran
the whole show in the wireline world.  AT&T had the power to decide how the
network would be used.  When innovators showed up at the door with ideas and new
technologies, they were greeted with what I imagine was a courteous but quick “go
away.”  For a long time, the FCC fully supported this type of network, and in fact
served as its protector.  It was thought that only through comprehensive control
by a single company could the quality, safety and scale economies of the network
be guaranteed.  Bigger was better and uniformity and stability were thought to be
worth the price of some lost opportunities for innovation and consumer benefits.
This was government at its worst.

All of this began to change 35 years ago when an innovator called Carter
Electronics Corporation developed a device that connected mobile radio-telephone
systems to the wireline network.  This device, called the Carterfone, had a cradle
into which a regular handset was placed.  It converted voice signals to radio
signals without the need for a direct electrical connection.  But the entrenched
incumbent was convinced that allowing this innovative and foreign attachment would
bring down its entire system, because the incumbent did not build it, sell it and
control it.

 Despite AT&T’s complaints, the Commission changed tack, stood up to the
monopolist and did the right thing.  It required the company to permit this new
application that attached to the end of the existing network.  Alarms went up that
this decision meant the end of network quality and the end of reliable service as
we knew it.  Of course, the doomsday scenarios never came to pass.  Just the
opposite came to pass.  The idea of having a network that couldn’t discriminate
against innovators who wanted to improve it started to break the choke-hold that
monopoly had on the system.

In the years after the Carterfone decision, as we entered the Internet age, the
Commission reaffirmed its policy of openness and competition by protecting freedom
on two layers: the access layer and the architectural layer.  In its Computer
Inquiries, another Commission said that common carriers which own transmission
pipes used to access the Internet must offer those pipes on non-discriminatory
terms to independent ISPs, among others.  With these decisions we preserved
competition in the information services market by ensuring that customers could
reach independent providers.  Congress then moved to protect the architectural
layer.  In the 1996 Act, it said that local telephone companies with choke-point
control of physical infrastructures would have to unbundle their transmission
networks.

Now both of these policies – protections on the access layer and on the
architectural layer – are under attack at the Commission.

Carterfone and its progeny tell a story of how companies that control choke-points
on the network have a built-in incentive to restrict and control customer use of
that network.  But this is also a story about the positive role the FCC can play
to ensure that networks are open for innovation -- when we do the right thing.
This was government at its best -- limited, yes, but effective.

Through such decisions, the foundation for our early experience with the Internet
was laid.  We had an open environment where consumer freedom to use the network
would be bounded only by the need to prevent harm to the network itself. So when
dial-up technology came along, the Internet grew quickly.  As dial-up kicked into
high gear, e-mail exploded, research on every conceivable subject appeared with a
click of the mouse, learning opportunities multiplied and streams of new services
and products became available.

That was then.  This is now.  Today, as the Internet matures from dial-up to
broadband, the FCC is positioning itself to change the rules, maybe even to call
the game.  Some important rules are already gone, others are on the block.  If we
continue down this path, we will end by undermining the basic end-to-end principle
that made the Internet great.  Control will have been wrested away from Internet
users and given back to those interests that control the bottlenecks, just like
AT&T controlled them not so long ago.  Broadband should be another step in the
path of Internet growth.  It may fall far short of its transformative potential.

All the signals of where this Commission is heading are there for the looking.  It
has already voted to place cable modem services into the unprotected and porous
world of Title I.  Then it turned right around and reached a similar, if
tentative, conclusion for wireline DSL providers – an interim decision that was
set to be made permanent, I believe, before the end of the year, until the Ninth
Circuit intervened this week.  I fervently hope that the Court’s decision will put
the wireline classification vote off until we have more clarity on the
transmission issues, but I’m not taking that to the bank yet after reading the
Chairman’s quick response to the Ninth Circuit vote in which he strongly disagreed
with the decision and vowed to appeal it.  Remember also that the majority wrote
into its cable modem order -- maybe they saw the hand-writing on the wall -- that
should the courts overturn them, the Commission will simply forbear.  How’s that
for chutzpah?  The direction of the current Commission can also be seen in the
broadband section of the recent Triennial Review Order where -- in a huge and
hugely troubling decision -- fiber is declared the province of the incumbents
rather than the playing field for competition and diversity.

Once again this Commission is out-driving its headlights.  We are taking gigantic
leaps down the road of removing core communications services from the framework
that kept the Internet free, open, and non-discriminatory; substituting our own
judgment for that of Congress; and playing a dangerous game of regulatory musical
chairs by moving technologies and services from one statutory definition to
another without having a clue about the consequences.

Before we move all these chairs, we had better understand the far-reaching
implications of our actions, because I can tell you this: our actions will have
many and serious consequences in addition to stifling Internet freedom and
innovation.  These involve such critical issues as universal service, competition,
pricing, consumer protection, privacy, disability rights, and even homeland
security.  Here’s one example: law enforcement tells us that this reclassification
is raising concerns about its ability to protect the country from crime and
terrorism.  Here’s another: the Joint Board on Universal Service recently reported
to the Commission that reclassifying broadband transmission as a Title I service
would mean that universal service could never support broadband deployment.  Think
about what that means for an Internet whose full realization depends upon
accessibility to every home.  It’s a subject for another speech, but I do believe
we need a national policy dedicated to high speed broadband deployment for every
home and every citizen in this great nation.  We’re not on that track today.

 Until now the big companies that control the bottlenecks have been unable to
convert their reach into controlling power over the Internet.  But now we face
scenarios wherein those with bottleneck control may be able to discriminate
against both users and content providers – users and content providers that they
don’t have commercial relationships with, don’t share the same politics with, or
just don’t want to offer access to for any reason at all.  From the not so distant
shadows of the past, old attitudes favoring industry consolidation and limited
access are again seeking to reestablish themselves.  Free from the dynamic of
competition, a favored few interests may try to set up shop as gatekeepers of the
Internet.  The sign will be posted clearly: “Entrepreneurs Need Not Apply.”  With
the on-ramps to the Internet under exclusive or at least limited control, we the
citizenry could be left with an Internet of fenced gardens and walled prairies.
Fences may make good neighbors; they do nothing to energize a dynamic Internet.

 A Washington Post story got me thinking about this recently.  Some of you may
recall the scenario it depicted of someone trying to phone in an order for a down
jacket from Land’s End, only to be told by the phone company that the call was
being re-directed to L. L. Bean, which had paid the phone company to be the
exclusive purveyor of down jackets to its customers.  It may sound far-fetched but
discrimination in less dramatic guise could soon be legal.  Think about what could
happen if your broadband Internet provider could limit or retard your access to,
say, certain news sources or political sites.  Or what if your provider decided
that you couldn’t make use of new and improved filtering technology to prevent
your children from cruising unprotected through the more obscene alleys of the
Internet because it wasn’t their filter?  Or what if it prevented you from using
some superior spam-jamming technology that could eliminate all that clutter from
your in-box because it could block their spam?  Or what if your broadband Internet
provider decided that it wanted to impose usage restrictions to prevent the use of
Virtual Private Networks by small businesses and telecommuters?  Or streaming
video?  Guess what?  Some of this is already happening.  And I am told there is
already a healthy market out there for so-called “policy-based routers” that allow
providers to do all this.  Is this how the end-to-end principle ends?

Let me try to put this issue into its broader context.  The proposals related to
the Internet are the third front on the battlefield for control of our
communications future.  Across almost the entire communications landscape, the
Commission is allowing networks to be closed, competition to be undermined and
innovation to be stifled.  The other two fronts in this war, in addition to the
Internet, are equally threatening.

On one of those fronts, the battle still rages over the Commission’s decision to
allow massive concentration in the media world.  On June 2, we voted to walk away
from many of our media concentration safeguards.  At issue in that huge vote was
how America’s TV, radio, and newspapers are going to look for many years to come.
Who is going to control the media?  How many -- or, rather, how few -- companies?
For what purposes?  I think I exaggerate not at all to say that the issue is
whether a few large conglomerates will be ceded content control over our music,
entertainment and information; gatekeeper control over the civil dialogue of our
country; and veto power over the majority of what we and our families watch, hear
and read.

As the June 2 vote approached, I saw two divergent paths that the Commission could
travel.  Down one path was a reaffirmation of America’s commitment to local
control of our media, diversity in news and outlook, continuing opportunity for
competitive entry, rededication to encouraging local creativity and genius through
local media and independent programming, and understanding that access to the
public’s airwaves is vital for our democratic future. This path beckoned us to
update our rules to account for technological and marketplace changes, yes, but
without abandoning core values going to the heart of what the media mean in our
country.

 Down the other path was evermore control over media choke-points by fewer
corporate giants.  Down this path we surrender awesome powers over our news,
information and entertainment to a handful of large conglomerates, empowering the
latter to tighten the circle of their control and to deny contrasting news,
information and viewpoints the oxygen of distribution they need in order to
breathe. Down this path we bid farewell to the days of innovative independent
programming, farewell to diversity of viewpoint and outlets, and farewell to
preserving time-honored values of localism, diversity and competition.

A majority at the Commission chose the wrong path.  Where are localism, diversity
and competition in a decision that allows Big Media companies to wield up to three
TV stations, eight radio stations, the already monopolistic newspaper, and
potentially the cable system and Internet access in the larger markets.
Localism?  Try centralization?  Diversity? Try uniformity.  Competition?  Try
monopoly, oligopoly and denial of access.  And, shortly, we may bestow similar
glad tidings onto Big Cable.  Once upon a time, cable was going to save us from
too much network control of the broadcast media.  Today 90 percent of the Top 50
cable channels are controlled by the same corporations that own the TV networks
and the huge cable systems.  Then we were told not to worry because the Internet
would be the ultimate protection.  We looked at the top 20 news sites on the
Internet.  Guess who controls most of them?  The same big companies that provide
us with our TV and newspaper news.  Some protection.

The third front is telecom.  I see here much of the same mind-set that I have
described regarding both our Internet and media concentration agenda. While many
inside our Beltway world are focused on the outcome of the Triennial Review
decision concerning voice competition in traditional telephony, the real story --
and infinitely more important long-term -- is how the majority closed up shop on
broadband and data competition.  After all, we’re headed soon for a world where
there is no exclusive voice service, where all services are data and voice is just
one of many data functions.  And we’re arranging the field of play so that real
competition won’t have a fighting chance. This isn’t about new rules for new
wires.  It’s about no rules for old incumbents.  It’s about putting the fiber of
the future under the ever-tighter control of a few major players.  No, we won’t
say it that way, but try to find someone who can go out and raise capital and
compete against those who the market will declare the victors in the great FCC
policy debate.  More germanely, try to find a critical mass of such potential
competitors.  I believe in my bones that re-monopolization or oligopolization or
duopolization -- or whatever you want to call closing the circle of control and
access -- are not the cures for telecom’s problems.

  I fail to see how innovation, technology development, new business models and
consumer protections can survive, leave alone thrive, in a world wherein the
circle keeps closing.  I want to see real competition in broadband.  I want to
encourage everyone -- not just the big innovators, but entrepreneurs tinkering in
their garages and small-business innovators with great ideas and new business
models -- to come up with the best technology and the most consumer benefits that
the genius of this country can create.  I want to focus not just on the
architecture of the Internet, but on the architectures of invention and innovation
and creation and entrepreneurship and access that have fueled so much of this
country’s progress in the past and without which the dynamic and liberating
potential of all these new technology tools will be denied the chance to do what
they can do for America. Our broadband and Internet-centered future must be made
to crackle with the myriad possibilities of digital communications.  But first we
must expand our vision and expand our thinking.

These two decisions on media and telecommunications cracked open the window for me
so I could begin to grasp the meaning of this Commission’s votes for closed
systems, acceptance of discrimination and support of entrenched business models.
Then I began to realize we were going down the same road for the Internet.  The
curtains flew open and light poured in, but the sunshine brought no happiness –
only despair.  It’s all part of the same phenomenon -- whether it is creative
artists who are denied play time on the media, or competitors who are being phased
out of phone company broadband, or bloggers who could be deprived of their
customary freedom on the Internet.

 So, yes, I am worried.  I think we really are teetering on a precipice.  We have
already inflicted heavy damage on our media and telecom systems.  And we could be
on the cusp on inflicting terrible damage on the Internet.  If we embrace closed
networks, if we turn a blind eye to discrimination, if we abandon the end-to-end
principle and decide to empower only a few, we will have inflicted upon one of
history’s most dynamic and potentially liberating technologies shackles that make
a mockery of all the good things that might have been.

But the doom-sayer brings more heartening news, too. The good news is that this
battle is not over.  It’s pretty far advanced, no doubt about that.  But I do
believe we can still correct our course.  Good policy can yet prevail.

We have courts stepping into the fray, whether it’s the Third Circuit staying the
new media ownership rules or the Ninth Circuit correcting our rush to broadband
transmission reclassification. Congress is actively involved.  Just as
encouraging, maybe more so, there are a few flickering signs that a deeper and
better discussion may finally be starting.  Its focus is on the principles of
openness.  And I can think of no better jumping-off point for an Internet dialogue
than by restating our commitment to the original principle of openness that made
the Internet great.  We are fast moving to a world wherein so much of our lives
will be organized through transactions that have to travel in one way or another
along the digital highways of the Internet.  To keep these roads trafficked with
opportunity, innovation and investment, we need a new principle of
nondiscrimination.  Those with bottleneck control over the transmission facilities
that are the on-ramps to the Internet should have to guarantee -- not a principle,
not a best effort, but a guarantee --that all comers will be treated equally and
that they will not use their power over bottlenecks to discriminate between
different content, users or usage.  Recent movement in the direction of openness
by a few in the cable industry, especially, is good and welcome news; it is not a
substitute for a policy that provides such openness for all to see and understand
and possess.  Until that happy day when we have a robust and competitive market
for access and where there are no longer any dangerous bottleneck facilities on a
network, the Commission should be on record that conduits must be  accessible,
neutral and open to all comers, just as they are in the dial-up world.

In the dial-up world, there is something akin to consumer sovereignty.   The
consumer has jurisdiction over the applications that prevail.  And what power that
is!  No network owner telling you where to go and what to do.  You run the show.
This freedom – this openness – has always been at the heart of what the Internet
community and its original innovators have celebrated.  Anyone can access the
Internet, with any kind of computer, for any type of application, and read or say
what they want.  No one can corner control of the Internet for their own
purposes.  Why shouldn’t this principle be guaranteed in the broadband world?  And
if some tell us this is going to happen anyway, then why not join together and
declare it a principle for all to understand?

Some would prefer to go down the road of open access.  Others argue that the
solution is net neutrality.  Some want both.  I’m not ready to endorse either as
the exclusive solution.  But let me offer a piece of friendly advice: the first
need now is for unity in the face of a real threat to the Internet.  Let’s not be
distracted or divided by the “how” until we get agreement on the basic principle.
Internet openness and freedom are threatened whenever someone holds a choke-point
that they have a legal right to squeeze.  That choke-point can be too much power
over the infrastructure needed to access the Internet.  And it can also be the
power to discriminate over what web sites people visit or what technologies they
use.  So we won’t resolve the problem by focusing on one symptom alone and trying
to make it go away.  We need first to establish, for all to see and understand,
that the goal of our policy must be to maintain and even enhance openness and
freedom on the Internet and to fight discrimination over ideas, content and
technologies.  I like to call it “Clear Rules for Old Values,” but whatever you
call it, it should be  Job One for all of us interested in the future of the Net.

So, to close, yes, I am worried that we could be witnessing the beginning of the
end of the Internet as we know it.  And that maybe we will never experience the
Internet as it might one day be.  “Over the top,” some of you will say.  But I
worry that too often we just tell ourselves, “That can’t happen,” or “If anyone
tries that, Congress will step in.”  All I know is that picking up the pieces
after the fact is usually more difficult and certainly messier than solving
problems before they reach critical mass.  A lot of forces are converging out
there, including not just new technologies that create opportunity but new
technologies that facilitate closure and control.  Economic policies that often
seem to favor consolidation are converging with regulatory policies that eagerly
pave the way.  These are powerful currents.  Our much vaunted digital migration
could end far short of its destination. My concern is all the greater because I
see the same policy approach informing so many of our decisions across the broad
spectrum of telecommunications and media issues.

I don’t come here this afternoon claiming to have all the answers – nor even to
suggest that I have raised all the questions that need to be asked.  I am here to
share my concern that continuing the Commission’s present course will bring a
heavy cost that we should not pay, have no need to pay, and should be doing
everything we can to avoid paying.

I am also here to say that we still have a chance to avoid all this.  If we role
up our sleeves – if we work together now – all of us – businesses, innovators,
technologists, content providers, regulators, legislators, consumers, citizens all
– we can make sure that our Internet continues to foster freedom and innovation,
and that the original vision that inspired this liberating technology lives for
another day and for another generation. Time is not our friend.  We are the
underdogs and surely this will be a difficult battle to win.    But it is a
necessary battle to fight.   And victory will reward us all with not only better
communications, but a better America.

Thank you.

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