"...[T]he most crucial task before us," as MIT Dean of Architecture William J. Mitchell observes in City of Bits, "is not one of putting in place the digital plumbing of broadband communications links and associated electronic appliances (which we will certainly get anyway), nor even of producing electronically deliverable 'content,' but rather one of imagining and creating digitally mediated environments for the kinds of lives that we will want to lead and the sorts of communications that we will want to have."[1]
Nor is it too early to initiate that "imagining and creating" process now, defining the types of civic information, the kinds of educational opportunities, and the range of cultural expression that we would like to see accommodated by the new broadband system. How can these networks be made genuinely interactive and participatory, with our choices extending beyond a narrow menu of consumer items, to reflect a wide range of interests and activities? Too often, in the design and deployment of broadband networks, the overarching concern among providers and users alike has been for the quality of service (even to the point of efforts to build "QoS" standards into networking protocols). However important such quality of service might be, we must not overlook, in our haste to achieve the fastest, most efficient networks, another basic element of communications--quality of content--and the impact that the new networks will have, for both good and ill, on all aspects of our lives.
In this light, the concept of "open access" must also be expanded. The open access principles that have emerged in the course of the broadband debates thus far have stressed the need to level the playing field, to ensure that no single interest (or association of interests) wields too much power in the operation of a given network. Although often obscured by claims and counterclaims concerning the alleged benefits or dangers of Internet regulation, the concept of fair play and competition remains at the heart of the broadband debate. As Stanford's Lawrence Lessig expressed it, "the choice is not between regulation and no regulation. The choice is whether we architect the network to give power to network owners to regulate innovation, or whether we architect it to remove that power to regulate." More recently, veteran Internet observer Gordon Cook, author of The Cook Report on the Internet, warned of "… huge, corporate controlled 'Walled Gardens' of content delivery and monopoly OS [operating system, i.e., the forthcoming Windows XP]. These 'Walled Gardens' are carefully controlled 'parks' of vendor content combined with software designed to encourage users not to stray out of the content Garden."[2]
The real issue, in other words, is whether we can preserve the openness and diversity that have long characterized the dial-up, narrowband Internet, where innovation and competition have flourished, in the new broadband environment. For along with the high-speed, "always-on" connections that broadband networks will bring, they will also bring new opportunities to "tilt" the playing field in the network operator's favor. "There will always be things that the carrier owner will do," declares Cook, "to favor its operation of its own physical media above that of everyone else. With facilities ownership the storied 'level playing field' is a pipe dream."[3]
Such abuses of power are particularly likely with cable broadband networks (currently regulated along with cable television under Title VI of the Telecommunications Act), in which a network operator is not required to share its lines with competitive Internet service providers (unlike the telephone companies and their DSL connections, regulated under the common carrier provisions of Title II). In the absence of federal requirements for such competitive access in cable broadband, a number of local communities, in the course of their cable-franchise-renewal or -transfer proceedings, have attempted to enact open-access ordinances, but with little lasting success. The authorities in Portland and Multnomah County, Ore., for example, as a condition of approving the transfer of TCI's cable franchise to AT&T, required the latter to provide nondiscriminatory access to the franchisee's cable modem platform to all Internet service providers, regardless of their affiliation. That requirement was ultimately rejected by the Ninth Circuit Court of Appeals, much as similar open access requirements were overturned by the courts in Broward County, Fla., and Henrico County, Va. [4]
In late November 2000, the Los Angeles City Council passed a resolution calling for open access, declaring that "...the public interest is best served by consumers having an unrestricted choice among Internet service providers to access the Internet." The previous year, in its "Open Access Report to the San Francisco Board of Supervisors," that city's Department of Telecommunications and Information Services (DTIS) considered the open-access question from two complementary perspectives: nondiscriminatory access to broadband transport (i.e., ISP interconnectivity), and nondiscriminatory handling of information over the Internet (i.e., end-user access to all content and services, regardless of origin or affiliation). Upon reviewing these issues, the DTIS urged the adoption of four basic open-access principles:
o Access to information without the need to see a network operator's proprietary content (the so-called "single click" requirement), allowing the user to navigate the Internet without necessarily passing through the network owner's portal.
o Access to all content and services, allowing the user to filter content if he or she chooses, but not imposing any filtering or blocking schemes from above.
o Equal treatment of all Internet traffic, without subjecting any material to unnecessary delays.
o Access for people with disabilities, by adhering, for example, to the guidelines established by the World Wide Web Consortium's Web Accessibility Initiative.
Taken together, these recommendations comprise the basic tenets of the level playing field: all ISPs and content providers are accorded equal treatment in the broadband environment, and all users (including those with disabilities) have access to any Internet resource, service, or application.
Sixteen states have also considered open-access legislation, although none has adopted any requirements yet. At the federal level, while the FCC has thus far resisted taking any action on open access beyond endorsing a marketplace solution, a number of bills dealing with this issue have been introduced in Congress in recent years. In the 107th Congress, such bills include the Internet Freedom and Broadband Deployment Act of 2001 (HR 1542), introduced by Representatives Billy Tauzin (R-LA) and John Dingell (D-MI), which would relieve phone companies of the obligation of sharing their high-speed data networks with independent ISPs. The Telecommunications Fair Competition Act of 2001 (S 1364), on the other hand, introduced by Senator Ernst Hollings (D-SC), not only maintains the open access requirements, but also puts more pressure on the regional Bell companies to to open their local telephone service to competition. [5]
In the private sector, the Center for Democracy and Technology has produced a "Broadband Open Access Metrics Checklist" as a means of assessing the degree of openness of a given broadband network, from the perspective of Internet users and service providers alike. For users, the checklist considers such factors as access to any and all lawful content online; freedom to participate in any online forum or discussion; use of any delivery platform without arbitrary limitations, both for the receipt and transmission of data; access without being compelled to use a particular "start page"; and the ability to choose from a variety of ISPs. For service providers, CDT's metrics include the ability of unaffiliated ISPs to offer service over a broadband network, with the nature of that interconnection--its fees, technical functionality, and relationship to subscribers--on a par with that enjoyed by the network operator's own and affiliated ISPs. Efforts such as this one, permitting external assessments of network behavior itself rather than an analysis of press release claims and counterclaims, should help advance the open-access debate from its current stalemate, adding much needed clarity to a discussion that is often marked by hyperbole and platitude.
Still, open access will mean comparatively little if it is confined to marketplace values and technical specifications alone. But that is precisely what most proponents of open access demand: a requirement that network owners negotiate all relevant prices, terms, and conditions under the single constraint that these prices, terms, and conditions shall be no worse than those the cable operator offers itself, its affiliates, or any other party. While that requirement answers the need for regulatory parity between cable and telephone broadband platforms, and while it supports fair play and competition, it fails to address the qualitative aspects of the broadband revolution. Quite simply, if the latest, high-speed incarnation of the Internet is going to realize its full potential, we will have to do more than simply leveling the broadband playing field, more even than ensuring that users enjoy access to all facets of online communications.
More than a series of "Thou shalt nots" directed at network operators, in other words, the principle of open access must also answer a fundamental question--access to what?--by embracing a more aggressive approach to supporting and sustaining alternatives to the reigning model of advertising-supported, e-commerce-driven online content. Just as it was necessary, in years past, to carve out space (and subsequently to develop new support mechanisms) for noncommercial broadcasting, so will it be necessary to establish similar structures on behalf of noncommercial, public-interest online programming. These services can be fostered in a number of ways, including innovative bandwidth-management and network-architecture considerations, as well as through more traditional means of support (for training and production facilities, for example), using existing regulatory structures.
Listed below are ten approaches to nurturing a more robust noncommercial online environment:
1. Spectrum set-aside: Instead of a fixed number of PEG channels, many local franchise authorities are negotiating for a portion of the cable provider's upgraded digital network, effectively expanding the online "civic space" as the cable system itself expands. Arlington, Va., Montgomery County, Md., and Portland, Ore., for example, now require a set-aside of 10 percent of downstream digital capacity for community use, in addition to their existing analog channels.
2. Institutional Networks: In the process of upgrading their networks to full two-way digital capacity, many cable providers have been required to devote a portion of their resources to linking a community's civic and nonprofit institutions in a high-speed hybrid fiber-coax network. Local franchise authorities can specify either bandwidth or the number of fiber-optic "strands" that will be dedicated to the I-net, along with the number and location of linked sites. Santa Rosa, Calif., for example, received a 25-node intranet from its cable provider (Cable One), while Pittsburgh recently negotiated with AT&T for three I-nets--one linking 23 city buildings, another linking 200 schools, libraries, and museums, and a third linking 88 community centers (in addition to 40 senior centers that will each get high-speed cable-modem access and six computers).
3. Local Connections: To insure that local sources of information and content will not find themselves at a competitive disadvantage in the new broadband networks, cable providers can also be asked to accommodate community networking through local peering, i.e., direct connections with local sources that avoid congestion or delay associated with sending information through distant regional or national facilities.
4. Caching: Another means of expediting online delivery of content is by maintaining copies of the most frequently requested material on local servers, where it is much more readily accessible. Although caching privileges will normally be accorded to a network operator's own content or to that of its affiliates and partners, a certain percentage of such storage could also be dedicated to local civic and other noncommercial material.
5. Screen real-estate/portal placement: Start pages and other on-screen "signposts" are another means of biasing online delivery in favor of selected content services. Here again, the public interest might be served by reserving a portion of prominent screen positions for civic and other noncommercial material. While much of this virtual landscape, to be sure, will be sold to the highest commercial bidder, a small portion might also be preserved for the greatest community need.
6. PSAs/navigational aids: Public-service announcements can serve a similar purpose, in this instance directing the viewer's attention to noncommercial material, activities, and events online. In the cable context, for example, the PEG channels in Monterey, Calif., benefit from 30 free promotional-spot insertions per month, free video and print program listings, and a free announcement included in subscribers' bills once a year. Similar arrangements, some using the new technology itself, can be fashioned for broadband cable networks.
7. Next-generation broadband delivery: Forthcoming transport options will include new terrestrial and satellite pathways that circumvent the Internet backbone entirely, ushering in an era of premium service for the bandwidth "haves" and second-class, "best-effort" transport for the rest of us. Even while many of these plans, which include a variety of wire-line and wireless alternatives to the public network, are still on the drawing board, it is not too early to begin thinking about how the noncommercial civic sector can share in some of the riches of the broadband revolution. Options for municipalities and community-based institutions to manage their own broadband networks, ensuring first-class transport or public-interest programming, should also be explored.
8. Financial Support: Under existing law, local franchise authorities are permitted to request up to 5 percent of the cable operator's gross annual revenues as a franchise fee, and up to 3 percent of those revenues for facilities and equipment. One of the most regular infusions of private funding in the entire nonprofit sector, cable franchise fees, when they're directed at public-interest telecommunications, comprise an important part of the noncommercial media infrastructure. Each of the franchise agreements in New York City, for example, require payment of $4.75 per subscriber for public-access annual operating funds, in addition to an annual capital grant of $200,000 for six years and a one-time capital grant of $5 million for educational and government access. It will be necessary to find new national sources of support, too, such as a Corporation for Public Telecommunications modeled after the existing Corporation for Public Broadcasting, but with more meaningful private-sector support. Proceeds from spectrum auctions, currently under consideration by such endeavors as the Digital Promise project and the New America Foundation's Public Assets Project represent another potential source of support.
9. Disability Services: In the broadcast arena (and to a lesser extent in the film industry), much progress has been made in providing closed captioning for the deaf and audio description for the blind. Ironically, progress on other fronts, including increasingly graphical, point-and-click navigational technologies, threaten to leave those with disabilities even further behind. Thus efforts to make certain that the new broadband networks serve all citizens should be undertaken from the start, rather than added on as an afterthought.
10. Multilingual services: Our increasingly diverse society can also benefit from special efforts to make the new broadband networks more inclusive, with multilingual content, ESL training, and other educational and outreach components incorporated at the outset.
Other means of supporting and sustaining an online civic sector in the broadband era will no doubt emerge, including some that depart from traditional charitable practices that have long fueled the nonprofit sector. Indeed, bandwidth itself may become a new currency of philanthropy, as will other aspects of online topography and transport. But rather than waiting, as we have in the past, for the inevitable commercial excesses to stimulate the equally inevitable belated calls for remedial action, it is time to begin planning now for the kind of online environment that we would like our children to inherit.
The Center for Digital Democracy remains committed to advancing that process, and we welcome comments from the field. Let us know what you think, and take a look at the related items, listed below, that reflect other aspects of online public interest programming.
----
[1]William J. Mitchell, City of Bits (Cambridge, MA: MIT Press, 1997), 5.