INTRODUCTION TO: "Open Architecture as Communications Policy" (PRESERVING INTERNET FREEDOM IN THE BROADBAND ERA)
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The papers in this volume are collected from speakers at a forum
held on Capitol Hill entitled Broadband Technology Forum: The Future
Of The Internet In The Broadband Age.1 All of the speakers are active in
the public policy debates, regulatory proceedings and court cases that have
been defining the contours of the next generation of the Internet. The
purpose of the forum was to engage staffers from Congressional offices
and federal agencies in a dialogue over the importance of preserving the
vibrant nature of the Internet.
With that purpose in mind, this volume blends new papers and
comments with several that are half a decade old (ancient by Internet
standards). Taken together they seek to provide a comprehensive basis for
understanding the interaction of technology and public policy in the
development of the Internet. Written at different times and for different
purposes over the past five years, the papers are powerful testimony to the
proposition that open architecture is critical to the success of the Internet.
The end-to-end principle of the Internet and the open communications
networks in which it was incubated are critical building blocks of a dynamic,
innovative information economy.
The papers address three aspects of the environment in which the
Internet was created and flourished – technology, economy and law – three
of the critical modalities of regulation, as Lawrence Lessig called them in
CODE AND OTHER LAWS OF CYBERSPACE.2
PART I: TECHNOLOGY AND POLICY IN THE CREATION OF THE INTERNET
Chapter II is a paper by Robert E. Kahn and Vinton G. Cerf, What
Is the Internet (and What Makes It Work)?, INTERNET POLICY INSTITUTE (1999,
revised 2004). It provides a brief discussion of the architecture of the
Internet through the chronology of the development of its fundamental technologies. Both of the authors were at the center of the creation of the
seminal technologies. They are keenly aware of the role of institutions
and public policies in the creation of the Internet.
Chapter III is a paper by Mark A. Lemley and Lawrence Lessig,
The End of End-to-End: Preserving the Architecture of the Internet in the
Broadband Era, 48 UCLA LAW REVIEW (April: 2001). The paper presents
a discussion of the design principle of the Internet. Not only does it explain
how the design principle operates to promote innovation, but it directly
refutes many of the economic arguments made by those who would
abandon, or allow the network facility owners to abandon, the end-to-end
principle and open communications networks.
PART II: EMPIRICAL STUDIES: THE ROLE OF OPEN ARCHITECTURE IN
STIMULATING INNOVATION
Part II presents empirical studies of the dynamic environment
created by open architecture in digital networks and the negative impact
on innovation of closure and discrimination in communications networks.
Chapter IV presents a paper prepared for the forum by Mark N.
Cooper that takes a broad view of the impact of the Internet. It attempts to
use network theory and recent analyses of technological change to reinforce
the long-standing claim that the open architecture of the Internet represents
a fundamental change and improvement in the innovation environment. It
concludes with an examination of the role of Internet Service Providers in
the spread of the Internet.
Chapter V is excerpted from a paper by Mark N. Cooper, Open
Communications Platforms: Cornerstone Of Innovation And Democratic
Discourse In The Internet Age,” 2 JOURNAL OF TELECOMMUNICATIONS AND
HIGH TECHNOLOGY LAW (1: 2003). It demonstrates the increased possibility
of anticompetitive practices by firms that dominate key points of the digital
communications platform. It links the potential harm back to the network
theory by presenting a case study of the elimination of Internet Service
Providers.
Chapter VI is excerpted from a paper by Timothy Wu, Network
Neutrality, Broadband Discrimination,” 2 JOURNAL OF TELECOMMUNICATIONS
AND HIGH TECHNOLOGY LAW (1: 2003). It attempts to precisely define the
characteristics of the Internet that should be preserved. In contrast to
chapters IV and V, which emphasize the commercial relationships between network owners and Internet Service Providers (ISPs), Wu provides a
detailed study of the customer contract provisions that threaten or infringe
on the freedom for consumers to use the Internet and applications.
PART III: POLICY AND LEGAL FRAMEWORK FOR PRESERVING OPEN
ARCHITECTURE
Part III maps out the current terrain of law and regulatory policy.
The papers share the objective of preserving open architecture. They would
travel somewhat different routes to achieve that goal.
Chapter VII is composed of two papers. It opens with a paper by
Timothy Wu, Broadband Policy: A User’s Guide, Journal OF
TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, forthcoming. It reviews
several aspects of the current policy debate and offers a recommendation
of nondiscrimination. The chapter then presents a formal proposal for
network neutrality that was presented to the Federal Communications
Commission (FCC) in an ex parte filed at the FCC by Wu and Lawrence
Lessig.
Chapter VIII combines two documents by Earl W. Comstock and
John W. Butler, Access Denied: The FCC’s Failure to Implement Open
Access as Required by the Communications Act,” 8 JOURNAL OF
COMMUNICATIONS LAW AND POLICY, (Winter: 2000), and the legal brief filed
on behalf of Earthlink in the second case heard by the Ninth Circuit
involving broadband (Brand X v. FCC). Comstock and Butler show why
the FCC has had so much trouble convincing the Ninth Circuit Court of
Appeals that its approach to deregulating advanced telecommunications
networks fits under the statute. Twice the Court found that the obligations
of nondiscrimination and interconnection of Title II of the Communications
Act apply to cable modem service. The detailed recounting of the history
and purpose of the Computer Inquiries that runs through the legal arguments
is a strong reminder that the FCC adopted the correct policy over 35 years
ago when it recognized the fundamental importance of nondiscriminatory
access to the essential telecommunications function of the network on which
applications and services ride.
Chapter IX begins with a letter from Vinton G. Cerf to the head of
the Secretary of Commerce and the Chairman of the Federal
Communications Commission raising concerns about the apparent public
policy shift away from open communications networks. The chapter then moves to a paper by Richard Whitt of MCI that formed the basis for Vinton
Cerf’s comments to the forum. The paper picks up and develops the
distinction between transmission and applications as it is being discussed
in regard to contemporary digital networks. Whitt attempts to synthesize
the emerging thinking about reforming regulation of communications by
moving from the old vertical view, in which industries are regulated because
of their underlying technologies or the services they provide, to a horizontal
view, in which similar functionalities are treated similarly across networks,
regardless of which technology is used.
The remainder of this chapter is composed of the opening remarks
at the forum. FCC Commissioner Michael Copps established the policy
context for the forum by summarizing a speech he had made in October
2003 that asked a critical question “The Beginning of the End of the
Internet?”3 His subtitle identified the critical issues as “Discrimination,
Closed Networks and the Future of Cyberspace.”
July 10, 2004 at 03:59 PM in Internet evolution | Permalink
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