Is it too late to save the Net from the carriers?

Doc Searls Weblog 2013-11-05

Eye of SauronIn Big Cable’s Sauron-Like Plan for One Infrastructure to Rule Us All, Susan Crawford (@SCrawford) paints a bleak picture of what awaits us after television (aka cable) finishes eating the Internet. But that’s just in our homes. Out in the mobile sphere, telcos have been eating the Net as well — in collusion with cable. That’s one of the points Marvin Ammori makes in We’re About to Lose Net Neutrality — And the Internet as We Know It. Both pieces are in Wired, which is clearly on our side with this thing — especially since, if Marvin is right, Wired might someday need to pay the carriers for privileged carriage on what used to be the free and open (aka “neutral”) Internet. Specifically,

Net neutrality is a dead man walking. The execution date isn’t set, but it could be days, or months (at best). And since net neutrality is the principle forbidding huge telecommunications companies from treating users, websites, or apps differently — say, by letting some work better than others over their pipes — the dead man walking isn’t some abstract or far-removed principle just for wonks: It affects the internet as we all know it.

Once upon a time, companies like AT&T, Comcast, Verizon, and others declared a war on the internet’s foundational principle: that its networks should be “neutral” and users don’t need anyone’s permission to invent, create, communicate, broadcast, or share online. The neutral and level playing field provided by permissionless innovation has empowered all of us with the freedom to express ourselves and innovate online without having to seek the permission of a remote telecom executive.

But today, that freedom won’t survive much longer if a federal court — the second most powerful court in the nation behind the Supreme Court, the DC Circuit — is set to strike down the nation’s net neutrality law, a rule adopted by the Federal Communications Commission in 2010. Some will claim the new solution “splits the baby” in a way that somehow doesn’t kill net neutrality and so we should be grateful. But make no mistake: Despite eight years of public and political activism by multitudes fighting for freedom on the internet, a court decision may soon take it away.

He continues,

How did we get here?

The CEO of AT&T told an interviewer back in 2005 that he wanted to introduce a new business model to the internet: charging companies like Google and Yahoo! to reliably reach internet users on the AT&T network. Keep in mind that users already pay to access the internet and that Google and Yahoo! already pay other telecom companies — often called backbone providers — to connect to these internet users.

That was eight years ago. In response to the same AT&T salvo, I wrote Saving the Net: How to Keep the Carriers from Flushing the Net Down the Tubes in Linux Journal. It was submitted in November 2005 and ran in the February 2006 issue. In it I outlined three scenarios:

  1. The Carriers Win
  2. The Public Workaround
  3. Fight with Words and Not Just Deeds

Neither #2 nor #3 have come to pass, except in very limited ways. So, since #1 seems to be on the verge of happening, here’s what I wrote about it. There is a fair amount of link rot, but the points are still sharp — and depressing to contemplate:

Scenario I: The Carriers Win

Be afraid. Be very afraid. –Kevin Werbach.

Are you ready to see the Net privatized from the bottom to the top? Are you ready to see the Net’s free and open marketplace sucked into a pit of pipes built and fitted by the phone and cable companies and run according to rules lobbied by the carrier and content industries?

Do you believe a free and open market should be “Your choice of walled garden” or “Your choice of silo”? That’s what the big carrier and content companies believe. That’s why they’re getting ready to fence off the frontiers.

And we’re not stopping it.

With the purchase and re-animation of AT&T‘s remains, the collection of former Baby Bells called SBC will become the largest communications company in the US–the new Ma Bell. Verizon, comprised of the old GTE plus MCI and the Baby Bells SBC didn’t grab, is the new Pa Bell. That’s one side of the battlefield, called The Regulatory Environment. Across the battlefield from Ma and Pa Bell are the cable and entertainment giants: Comcast, Cox, TimeWarner and so on. Covering the battle are the business and tech media, which love a good fight.

The problem is that all of these battling companies–plus the regulators–hate the Net.

Maybe hate is too strong of a word. The thing is, they’re hostile to it, because they don’t get it. Worse, they only get it in one very literal way. See, to the carriers and their regulators, the Net isn’t a world, a frontier, a marketplace or a commons. To them, the Net is a collection of pipes. Their goal is to beat the other pipe-owners. To do that, they want to sell access and charge for traffic.

There’s nothing wrong with being in the bandwidth business, of course. But some of these big boys want to go farther with it. They don’t see themselves as a public utility selling a pure base-level service, such as water or electricity (which is what they are, by the way, in respect to the Net). They see themselves as a source of many additional value-adds, inside the pipes. They see opportunities to sell solutions to industries that rely on the Net–especially their natural partner, the content industry.

They see a problem with freeloaders. On the tall end of the power curve, those ‘loaders are AOL, Google, Microsoft, Yahoo and other large sources of the container cargo we call “content”. Out on the long tail, the freeloaders are you and me. The big ‘loaders have been getting a free ride for too long and are going to need to pay. The Information Highway isn’t the freaking interstate. It’s a system of private roads that needs to start charging tolls. As for the small ‘loaders, it hardly matters that they’re a boundless source of invention, innovation, vitality and new business. To the carriers, we’re all still just “consumers”. And we always will be.

“Piracy” is a bigger issue to the cargo sources than to the carriers. To the carriers, “fighting piracy” is a service offering as well as a lever on regulators to give carriers more control of the pipes. “You want us to help you fight piracy?”, the transport companies say to the content companies. “Okay, let’s deal.” And everybody else’s freedoms–to invent, to innovate, to do business, to take advantage of free markets and to make free culture–get dealt away.

The carriers have been lobbying Congress for control of the Net since Bush the Elder was in office. Once they get what they want, they’ll put up the toll booths, the truck scales, the customs checkpoints–all in a fresh new regulatory environment that formalizes the container cargo business we call packet transport. This new environment will be built to benefit the carriers and nobody else. The “consumers”? Oh ya, sure: they’ll benefit too, by having “access” to all the good things that carriers ship them from content providers. Is there anything else? No.

Crocodile grins began to grow on the faces of carriers as soon as it became clear that everything we call “media” eventually would flow through their pipes. All that stuff we used to call TV, radio, newspapers and magazines will just be “content” moving through the transport layer of the pipe system they own and control. Think it’s a cool thing that TV channels are going away? So do the carriers. The future à lá carte business of media will depend on one medium alone: the Net. And the Net is going to be theirs.

The Net’s genie, which granted all those e-commerce wishes over the past ten years, won’t just get shoved back in the bottle. No, that genie will be piped and priced by the packet. The owners of those pipes have a duty to their stockholders to make the most of the privileged position they’ve been waiting to claim ever since they got blind-sided, back in the 80s and 90s. (For an excellent history of how the European PTTs got snookered by the Net and the Web, see Paul F. Kunz’ Bringing the World Wide Web to America.) They have assets to leverage, dammit, and now they can.

Does it matter that countless markets flourish in the wide spaces opened by agreements and protocols that thrive at the grace of carriage? Or that those markets are threatened by new limits, protections and costs imposed at the pipe level?

No.

Thus, the Era of Net Facilitation will end. The choke points are in the pipes, the permission is coming from the lawmakers and regulators, and the choking will be done. No more free rides, folks. Time to pay. It’s called creating scarcity and charging for it. The Information Age may be here, but the Industrial Age is hardly over. In fact, there is no sign it will ever end.

The carriers are going to lobby for the laws and regulations they need, and they’re going to do the deals they need to do. The new system will be theirs, not ours. The NEA principle–Nobody owns it, Everybody can use it, Anybody can improve it–so familiar to the Free Software and Open Source communities will prove to be a temporary ideal, a geek conceit. Code is not Law. Culture is not Free. From the Big Boys’ perspective, code and culture are stuff nobody cares about.

That’s us: Nobody.

The new carrier-based Net will work in the same asymmetrical few-to-many, top-down pyramidal way made familiar by TV, radio, newspapers, books, magazines and other Industrial Age media now being sucked into Information Age pipes. Movement still will go from producers to consumers, just like it always did. Meet the new boss, same as the old boss. Literally.

The deals that matter will be done between tops of pyramids. Hey, it’s easier to do business with the concentrated few than the dispersed many. The Long Tail can whip itself into a frenzy, but all the tech magazines and blogs in the world are no match for the tails and teeth of these old sharks. (Hey, Long Tailer, when’s the last time you treated your erected representatives to private movie screenings, drafted their legislation, ghosted their committee reports, made a blockbuster movie or rolled fiber across oceans?)

Google and Yahoo and Amazon and eBay and e-commerce and free software and open source and blogging and podcasting and all the rest of that idealistic junk have had their decade in the sun. Hell, throw in Apple and Microsoft, too. Who cares? Them? Doesn’t matter how big they are. They don’t matter. They’re late to the game.

We all know the content business got clobbered by this peer-to-peer crap. But the carriers took a bath by building out the Net’s piped infrastructure. They sank $billions by the dozen into fiber and copper and routers and trunks, waiting for the day when they’d be in a position to control the new beast fleshed on the skeleton that they built.

That Day Has Come.

It came earlier this month, when the November 7, 2005, issue of BusinessWeek hit the Web’s streets. In that issue are “Rewired and Ready for Combat” and “At SBC, It’s All About ‘Scale and Scope’”, which features an interview with Edward Whiteacre, CEO of SBC. Here’s the gist of it:

How concerned are you about Internet upstarts like Google (GOOG), MSN, Vonage, and others?

How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?

The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! (YHOO) or Vonage or anybody to expect to use these pipes [for] free is nuts!

What’s your approach to regulation? Explain, for example, the difference between you and Verizon in how you are approaching regulatory approval for Telco TV [digital-TV service offered by telecoms].

The cable companies have an agreement with the cities: They pay a percentage of their revenue for a franchise right to broadcast TV. We have a franchise in every city we operate in based on providing telephone service.

Now, all of a sudden, without any additional payment, the cable companies are putting telephone communication down their pipes and we’re putting TV signals. If you want us to get a franchise agreement for TV, then let’s make the cable companies get a franchise for telephony.

If cable can put telephone down their existing franchise I should be able to put TV down my franchise. It’s kind of a “what’s fair is fair” deal. I think it’s just common sense.

What if the regulators don’t agree?

Then there won’t be any competition–there will be a cable-TV monopoly.

I know you’re a competitive person. Who are your biggest competitors?

Our big competition in the future is with the cable companies. Verizon’s going to be a player, and certainly I want to compete. And I want our shareowners to do better than anyone else.

If I were BusinessWeek, I’d ask:

What about the free and open marketplace that has grown on the Net itself? Do you have any interest in continuing to support that? Or in lobbying forms of deregulation that foster it? Or are you just in a holy war with the cable companies inside the same old regulatory environment you’ve known since forever?

I’d ask:

If you were to buy, say, Level 3, would you start to filter and restrict content at the transport level, to extract the profits you want, without regard for other market consequences? Would Cisco, builder of the great Firewall of China, help out?

I’d ask:

Which do you prefer: The regulatory environment where your business has adapted itself for more than a century, or a completely free and open marketplace like the rest of us enjoy sitting on top of your pipes?

Whiteacre’s answers, of course, would be less relevant than the obvious vector of his company’s intentions. For a summary of that, let’s return to Lauren Weinstein of People for Internet Responsibility:

Of course, the truth of the matter is that the telcos have been moving rapidly through massive consolidation–and a range of other tactics–to create an environment where “competition” will only be a pale reflection of what we were originally promised, with only a few gigantic players in control of all telecom resources and policies. Like the robot cop in Terminator 2 that reformed from blown-apart mercurial blobs of metal, the “golden age” of telecom competition is already giving way to empire.

Don’t blame BusinessWeek for not asking the important questions or for missing the Carriers vs. Net story. Biz pubs love to cover vendor sports. And there’s certainly a big story here.

Great distraction, vendor sports. While we’re busy watching phone and cable giants fight over a closed battlefield that ought to be open, we miss Net-hostile moves by other parties that result in other lost freedoms.

Take ICANN, for instance, where a new .com Registry Agreement allows Verisign to raise the rates for .com names by 7% annually, and to operate .com in perpetuity, and to “mak[e] commercial use of, or collect, traffic data regarding domain names or non-existent domain names”, and to reap other rewards for what few other than Verisign would agree is a good job. Bret Faucett summarizes the darkest shadow across the noir scenario we’ve already described:

The theme running through all of these is that ICANN and Verisign are treating the .COM registry as a private resource. It’s not. The root servers and TLD servers are public resources. We should treat them like that.

Bret has one of the most eloquent voices in the wilderness of clues the Big Boys would rather avoid. So does Susan Crawford, who was just, perhaps miraculously, named to the ICANN board.

For Bret, Susan and the rest of the restless natives of this new world, what matters most is Saving the Net–keeping it a free and open marketplace for everybody–while also making sure that carriers of all kinds can compete and succeed while providing much of the infrastructure on which that marketplace resides. That means we need to understand the Net as more than a bunch of pipes and business on the Net as more than transporting and selling “content”.

This isn’t a trivial issue. It’s a matter of life and death for the Net itself. How are we going to fight?

Read on.

You can do that here.

Bonus link: Marvin Ammori’s own follow-up.