This article is forwarded with Andy Oram's permission.
Don Weightman
======================================
I started this article as a general overview of policy
issues interesting ISPs (mostly CIX) but it turned into a
discussion mostly about access to the last mile. I thought
it might be of interest to this list.
The opinion piece is currently at the American Reporter
site, which is at:
http://www.american-reporter.com/
Tomorrow I'll give the article a permanent home (along with
suitable hypertext links and an index of related articles)
at:
http://www.oreilly.com/~andyo/ar/agenda_isp.html
The article can be redistributed online, with author and
newspaper attributions intact, for non-profit use. For
printing or commercial use, please contact Joe Shea,
publisher of the American Reporter, at
[EMAIL PROTECTED]
Andy
---
THE POLICY AGENDAS OF INTERNET SERVICE PROVIDERS
by Andy Oram
American Reporter Correspondent
CAMBRIDGE, MASS. -- Plenty of people have an agenda for the
Internet. They range from Al Gore asking for more wires in the
schools, to conservative Congressmen asking for more wires from Bell
telephone companies; from libraries promoting uncensored access, to
music studios promoting restrictions on the dissemination of
copyrighted material.
But few users realize that the people bringing us the Internet
have agendas too. In this column, we hear from Internet Service
Providers in the United States and their representatives.
Until three years ago, few service providers followed
legislation through Congress or hired lawyers to hang around the
Federal Communications Commission. They had enough trouble hooking up
enough routers to satisfy the armies of new users hungry for email,
keeping lines free from congestion, and fixing poorly configured
look-up services.
The Communications Decency Act was a wake-up call to many
ISPs. With its vague provisions for assigning responsibility to
"interactive computer services," it made them realize that politics
intrudes on the business of providing access.
About the same time (1996-1997), the Bell telephone companies
finally realized the Internet was an important market and brought in
some serious competition, dragging along with them several decades'
worth of regulatory bureaucracy.
For evidence of awakened ISP attentions, take the Commercial
Internet eXchange (CIX) -- the largest consortium of ISPs in the
world, if you measure by volume of traffic. CIX was founded in 1991 to
provide the first commercial access to the Internet backbone, part of
the Internet community's conscious move away from government
dependence. Three years ago, its executive director, Barbara Dooley,
started a new legislative focus that brought it back to policy tables.
CIX helped to fund the ACLU's successful challenge to the CDA.
Last year, Dooley claims that CIX was a major force in winning a
turnaround in the Digital Millennium Copyright Act and reducing its
regulation of ISPs and other Web site providers to just about the
minimum acceptable to copyright holders. The Copyright Act was a model
for this year's Internet gambling bill, which replaces a bill CIX
helped to defeat last year.
According to public policy director Eric Lee, CIX also
publicized the problems with a bill called Murkowski-Torricelli, which
was advertised as a cure for spamming (unsolicited commercial email)
but would actually have legitimized and entrenched it.
Now Internet providers have lawyers who work on bills across
the legislative spectrum. Regulatory issues will appear in several
panels at the next ISPCON, the major conference for service providers.
The two chairs of the House Internet Caucus, Congressmen Rick
Boucher and Bob Goodlatte of Virginia, are planning broad legislation
that will cover a number of hot topics. Boucher -- who cosponsored a
copyright act in 1997 that was widely praised by the technical and
research community -- told me the new legislation would try to be a
"comprehensive solution for the major challenges that confront the
Internet today." For him, these include:
- the ability of Internet providers to deal with spam problems
that often slow and clog their services;
- ensuring that anyone visiting a Web site will have notice of
information being collected;
- the need to authorize digital signatures for all commercial
transactions;
- an open architecture, so that no ISP is denied access to
customer base by companies that provide transport;
- resolution of bandwidth scarcity in the "last mile" and
parts of the backbone.
Behind each of those agenda items, of course, lies a world of
controversy. (For instance, privacy action groups would like a lot
more than "notice" of information collected; they want restrictions on
its use.) If the comprehensive bill ever emerges, it will hopefully
receive all the debate and public scrutiny that the Telecom Act of
1996 should have had, but did not.
It is over the "last mile" that ISPs are now fighting, perhaps
for their very lives. Before a number of regulatory bodies -- in
states, in cities, and before the FCC -- they are demanding access to
phone lines and cable services that deliver data to residences. Their
representatives are also in some disagreement about how to proceed.
The last mile issue springs from the near-monopoly control
over wires going into people's homes in most communities. Few cities
have more than one cable provider, and almost none have a telephone
carrier competing with the Bell company for residential service.
Furthermore, mergers are reducing the number of players. This
was actually the plan behind the notorious Telecom Act of 1996.
Congress hoped to increase competition indirectly by (ironically)
decreasing the number of communications companies. In this plan, large
companies were supposed build up resources through mergers and then
enter each other's turf. In pursuit of the goal, the Telecom Act
deliberately relaxed limits on multiple ownership and entry into
markets.
The new regulatory environment may indeed lead eventually to
some sort of competition -- two or three companies in each locality
that can offer you everything from video to voice. But what about the
more than 6,500 independent ISPs in this country?
Until the past year, no company could put a roadblock along
the information highway. Individuals dialed up ISPs as they did to
make appointments at their local hair-and-nail salons.
But then high-speed data became possible through cable modems
and Digital Subscriber Line telephone service. If the Joneses got it
and you didn't, you'd be so ashamed you wouldn't even engage them in
Internet Relay Chat.
Phone companies can make life hard for ISPs trying to offer
high-speed access over DSL. Mark O'Connor, an attorney representing
CIX before the FCC, says, "If the last mile were truly competitive, it
is likely that prices for delivering data services would fall and the
variety of Internet services offered by ISPs would greatly increase
for the benefit of consumers." Some commentators suspect that Bell
pricing is high enough to make it impossible for ISPs to offer DSL at
a profit.
Cable is even worse for ISPs, because here there is no
effective regulation and not even the fledgling competition provided
in telephone service by competing carriers. Now there are rumors that
cable service providers @Home and Road Runner may merge (following the
recently announced merger of their leading partners, Comcast and
MediaOne -- a merger they promoted as a way to expand further into the
data market). That would leave a single monopoly Internet provider in
the cable modem market. The president of AT&T denied that a merger in
data services was being discussed, however.
ISPs are mobilizing on many fronts, both national and local,
to clear the roadblocks. Nationally, CIX is asking the FCC not to give
the Bell companies any new opportunities to enter long-distance
markets, or to offer expanded DSL service, till there is competition
in DSL.
A newly formed organization called the OpenNET Coalition is
putting similar pressure on cable companies. Locally, the DSL issue is
fought before state utility commissions that regulate phone companies,
while the cable issue appears before city utility commissions that
grant licenses to cable providers.
The open access issue has opened a bit of rivalry between
ISPs. CIX representatives Dooley and Lee call the cable issue a
distraction; to them, tying cable access to DSL access will only slow
down DSL access.
In defense of the OpenNET Coalition, the number of cable modem
customers is an order of magnitude greater than the number using DSL,
and the monopoly of cable companies on their particular segment of
data access is much more blatant. Dave Baker of MindSpring, an
Internet provider and cofounder of the OpenNET Coalition, says, "Cable
bills have doubled in less than 10 years. Is the cable model of
pricing and lousy customer service going to become the Internet
model?"
It doesn't help you in sorting out the issues to learn that
one founding member of the OpenNET Coalition is U.S. West, the first
Bell company to deploy DSL and thus the one most in the thick of
battles with ISPs. Correspondingly, CIX counts as one of its members
AT&T, the company that kicked off the cable controversy by merging
with TCI, promising to vastly increase cable modem coverage around the
country, and insisting that all customers go through the TCI service
provider @Home for Internet access.
After ensuring access to their customers, the next agenda item
of the Internet providers is to avoid liability for what Internet
users do on their services. Luckily, U.S. legislators and courts are
getting the message, as the outcome of the CDA, the copyright bill,
and the gambling act show.
The copyright bill originally included liability provisions
that put providers of Web services at risk when anyone renting space
on their servers put up infringing material. The final bill includes
complex provisions protecting these services, requiring in return only
that the administrators register with the Copyright Office. Dooley
considers this a very fair exchange and an excellent outcome. (We are
considering just the provisions affecting ISPs in this article, not
the other controversial provisions of that enormous bill).
The gambling bill originally was "a horror" for ISPs. For
instance, it would allow a court to require that an ISP block access
from a particular user to a particular site. Current language still
places some responsibility on the ISP, but absolves it when blocking
is "technically or economically unfeasible."
Lee says that CIX is "optimistic" about the bill from the ISP
standpoint, but adds with some cynicism that their achievement
involved making the bills' supporters reduce their expectations. One
attorney general, for instance, went from calling the bill a solution
to saying it would be "a statement of policy." Lee comments,
"Legislation that its sponsors know won't be effective, and can't be
effectively enforced, is an unsound approach to making public policy."
I am personally wary of the "technically or economically
unfeasible" language, which is reminiscent of wishy-washy legislation
passed elsewhere. (For instance, a German lawyer pointed it out to me
in German regulation of pornography and hate speech on the Internet.)
Such nose-in-the-tent language gives prosecutors and judges the notion
that they can determine what is feasible, and to drag ISPs into cases
where they don't deserve to be.
Liability problems rear their heads more often in other
countries, as for instance in France last month when the ISP
altern.org was forced to pay for unauthorized pornographic poses put
up by an anonymous user, or even more recently in England when the ISP
Demon Internet was held responsible for libelous statements that it
failed to remove from a newsgroup.
I asked Dooley to define her general philosophy regarding
Internet policy, and she said, "Let the market work." This means a
balancing act where regulation does not hamper ISPs, but offers a
protective environment for an industry that is still small, where
businesses are barely breaking even, and where the surrounding
environment is still being regulated.
Thus, she is pleased that the FCC -- which has generally been
favorable to ISPs -- is maintaining the exemption of information
service providers from fees and charges levied on telecom providers.
It would kill most ISPs to change the rules before they are profitable
and stable.
Internet access is an old-fashioned American success story,
carried out by thousands of local, minimally financed individuals
working with little more than a pair of pliers, a soldering iron, and
a vision. Now, according to a brochure circulated by the U.S. ISP
Alliance (of which CIX is a member), 96% of Americans can reach at
least four ISPs through a local call -- that's competition. And the
other 4% can reach at least one ISP through a local call or 800
number.
This is an astounding success, and it was achieved not through
regulation or major investment from a huge corporation, but through
the efforts of college students, computer administrators, and curious
techno-tinkerers, often working part time.
Perhaps the age of Internet innocence is over, at least in the
United States. ISPs can now read FCC notices as readily as Cisco
router documentation. As we have seen, they've found that they have to
partner with deep-pocketed players and compromise with entrenched
interests on the Hill. But ISPs are going to be heard from now on in
policy and legislative circles.
-30-
Andy Oram is moderator of the Cyber Rights mailing list for
Computer Professionals for Social Responsibility, and an editor at
O'Reilly & Associates.
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