[A2k] Comments to FCC on NN in the Info Society Context

Seth Johnson seth.p.johnson at gmail.com
Mon Nov 10 08:21:13 PST 2014

See text with internal links here:

November 8, 2014

c/o Marlene H. Dortch, Secretary
Federal Communications Commission
445 Twelfth Street, SW
Washington, DC 20554

Comments on Network Neutrality in the Context of the International
Information Society Project

Dear Commissioners:

In the following open letter, filed ex parte in the FCC's Open
Internet proceeding and addressed to the global Internet community, we
address the issue of network neutrality in relation to the
international Information Society project.

By addressing this relationship, we hope to amplify our call for the
FCC to support the policy environment that originally gave us the open
and neutral Internet. This was the policy environment that existed in
the US until just prior to the Information Society project.

Our chief concerns are for elements of the Information Society
project's underlying design which support vertically integrated
telecommunications environments, without clearly providing for policy
environments that support open and competitive access by independent
providers at the physical layer, and for the project's effects on the
universal general purpose interoperability of the Internet as we know

The Internet's design to support general purpose interoperability
among autonomous networks in the network of networks is the original
basis for the neutrality of the Internet, and competitive access at
the physical layer is the policy environment that originally
established the network of independent and interoperating networks
that gave us the open Internet.

The FCC's overall approach to telecommunications policy over the last
decade based on vertical integration, and recent FCC initiatives such
as the IP transition, reflect these areas of concern in the
Information Society project, and US State Department initiatives also
intersect with the Information Society project's system of
international decisions enacted within the UN system and other
international agencies.

Network Neutrality and Vertical Integration

In his recent viral commentary, John Oliver describes network
neutrality as the reason why the Internet is "a weirdly level playing
field." This result may be produced in a couple of different ways,
based on two conceptions of network neutrality.

Network neutrality can denote either 1) the application of a rule
requiring networks to treat packets equally within themselves; or 2)
the technical principle whereby interoperability among autonomous
networks is enabled by transmitting packets between them without
regard for application.

Renewed concerns for network neutrality in the first sense have arisen
in the US and globally in response to the FCC's plan to make
provisions for fast lanes in its Open Internet policy, and in the wake
of Comcast's and Verizon's recent moves to initiate interconnection
deals directly with the edge application provider Netflix rather than
accepting the data their users request from Netflix via backbone
intermediaries.  We note that these developments reflect the
circumstances of the present policy approach in the United States,
which is characterized by a few incumbent network providers who have
been allowed to treat physical infrastructure as assets nearly solely
under their private control (i.e., the physical infrastructure is
"vertically integrated,” treated as a supply that has been acquired as
part of a private production process).  In this environment, network
neutrality cannot help but be approached in the first sense, as a rule
addressing paid prioritization, to be imposed within the networks of a
few dominant providers that exercise a controlling role in the
telecommunications space, rather than in the second sense, as the kind
of policy relevant to a network of autonomous, competing networks.

In point of fact, however, the Internet was originally unleashed in
the United States under a policy approach that assured competition at
the physical layer, creating an environment that enabled thousands of
independent network providers to readily enter the network of networks
and interoperate among themselves, in accordance with network
neutrality in the second sense.  The Internet was designed to solve
the problem that arose in this context, of how to interoperate among
numerous autonomous networks, and this was the original basis of the
openness of the Internet.  The policy approach that enabled this
dynamic to arise was the official position of the US at least until
2000, when the FCC recommended open access as the policy that would
best support the Internet in Europe (see FCC Press Release, United
States Urges EU to Continue Progress in Opening Communications Market
To Competition, 2000 FCC LEXIS 1383 (2000), available at:

However, roughly concurrently with the beginning of the Information
Society project – which might be designated by the 2003 Geneva and
2005 Tunis World Summit for the Information Society (WSIS) events –
the FCC has implemented a federal telecommunications policy that not
only deregulates Internet information services, but also the physical
infrastructure carrying telecommunications data.  This enables the
incumbents to treat the infrastructure as one would a private asset in
any other type of market, and thereby neutralizes the legal
foundations of the Communications Act in public franchise law and
common carrier obligations, which up until then had assured
competitive access to right of way infrastructure by independent
Internet providers.

For whatever reason, the underlying premises of the Information
Society project currently reflect this change in the policy
environment which we have seen in the US.  The ITU's definitions for
the performance measures used to measure the progress of the
Information Society draw no distinction between individual networks
that may implement specialized services through more specialized
treatment of packets within themselves, and open Internet
connectivity, constituted of a network of autonomous network providers
interoperating among themselves.  The measures are based on
telecommunications industry categories as defined in the International
Standard Industrial Classification (ISIC), Rev. 4, which reference the
Internet solely in relation to a vertically integrated context
(“provision of Internet access by the operator of the wired
infrastructure”) and not in relation to shared physical infrastructure
(“purchasing access and network capacity from owners and operators of
networks and providing telecommunications services using this

Current FCC Commissioner Tom Wheeler appears to advocate an approach
to policy consistent with vertical integration, and with the framework
articulated by Joseph Farrell and Philip J. Weiser in 2003, wherein
the efficiency advantage of a vertically integrated network platform
is weighed against impacts that the platform provider's practices may
have on application markets dependent on their platform. In Ensuring
an Open Internet Now and for the Future, Wheeler states that there are
likely to be a few broadband networks serving to support essential
services for society, and that this condition means they are likely to
exercise market power.  He characterizes net neutrality in terms of
balancing concerns of producers and consumers within this type of
context, such as that network operators may make moves that undermine
the value of the network, or that regulation by the FCC might cause
economic harm to network operators or inhibit their ability to offer
improved service.

Network Neutrality and Universal General Purpose Interoperability

Conformance and Interoperability:

The neutrality of the Internet's design is based on the way it
supports a maximally flexible platform between and across independent
networks. Its neutrality is sustained by the need to interoperate
across autonomous networks and to connect end users in whatever they
may be doing.  With its Conformance and Interoperability program, the
US and the Information Society project are effectively pursuing a
conception of interoperability that may supplant this notion of
universal general purpose interoperability – which the Internet is
already designed to support – replacing it with a notion of
interoperability as conformance with policy.

This program is a key part of the intergovernmentally-endorsed program
of action issued by the ITU at the 2010 Plenipotentiary Conference,
now being updated at the 2014 Conference, and is geared to support the
WTO's Technical Barriers to Trade Agreement (TBTA).

The TBTA aims at ensuring that technical regulations, standards and
conformity assessment procedures do not create unnecessary obstacles
to international trade. It encourages Member States to base these
matters on international standards and develop conformity assessment
procedures to generate confidence that products conform with
applicable technical regulations or standards.

Among our concerns here is the fact that Conformance and
Interoperability testing might become a basis for enabling government
or privileged providers to promote new types of networks by appealing
to intergovernmental standards, without distinguishing them from the
way the Internet operates or recognizing the tradeoffs these types of
networks bring as compared to open internetworking between independent

We see the Conformance and Interoperability program represented in the
US's submission to the WTDC for a Study Question on Conformance
Testing, and as part of its program for the Plenipotentiary

WTSA Resolution 76, issued at the 2012 World Telecommunications/ICTs
Standards Assembly (WTSA), articulates the relationship of conformity
assessment to the Technical Barriers to Trade Agreement, ITU-T
Recommendations X.290-X.296, on ISO conformance testing,
Plenipotentiary Resolution 177 and WTDC Resolution 47, on Conformance
and Interoperability, and WTSA Resolutions 17 and 44 and
Plenipotentiary Resolution 123, on bridging the standardization gap.

As already noted in connection with vertical integration, the
indicators by which the Information Society project's progress is
being measured are based on the same ISIC definitions that underly the
Technical Barriers to Trade Agreement, linking them to both vertically
integrated networks and a new conception of interoperability.

Identifiers Infrastructure:

ITU processes have also issued numerous resolutions articulating
pieces of an inter-governmentally endorsed technical infrastructure
for identifiers that may support the validation or enforcement of
various kinds of policy.

Significant pieces of this framework were issued as resolutions by the
2012 WTSA.  They were characterized there as "merely technical" and
thereby appropriately within the scope of the WTSA and ITU's
Standardization Sector (ITU-T).  However, they have been supplemented
this year with more substantive enactments issued by the recent WTDC
under ITU's Development Sector (ITU-D), and like the Conformance and
Interoperability program, these WTSA and WTDC resolutions fulfill
directives from the 2010 ITU Plenipotentiary Conference, and therefore
enjoy an intergovernmentally endorsed status.

If we do not examine how well the framework enacted by the ITU's
Plenipotentiary Resolutions actually represents the nature of the
Internet, governments, including the US, will easily appeal to this
framework as representing basic functions to be treated as a
foundation for international connectivity, and they may thereby make
it difficult to reclaim the original sense of interoperability of the
Internet as they claim their new conception under the name of Internet

Depending on how they are applied, these resolutions providing
technical support for identifiers may affect not only open, general
purpose technical interoperability, but also the free flow of
information, the flexibility of the platform, and its support for
interactive and collaborative uses of information published online.

Our concern here is that before these provisions should be treated as
components built into the design of international connectivity, their
presence and the implications they may have for the nature of the
Internet, as they may be used to build support for policy into
networks, should be noted and given full opportunity for review prior
to being treated as established elements of international networks.

In the US, we see work underway on identifiers policy at the FCC,
presented as the technology behind the IP Transition, currently
articulated largely in relation to policies applicable to phone
numbers. In the US Congress, bills such as the anti-spoofing bills HR
3670 and S 2787 may well serve as a part of a national implementation
to support this international system of identifiers.

The most direct provisions for identifiers are in WTSA outputs.  WTSA
20, on allocating and managing of international numbering, naming,
addressing and identification resources (NNAI), references the
integrity and misuse of numbering resources, procedures for allocating
and managing international NNAI articulated in ITU-T E-, F-, Q- and
X-series Recommendations, and a call to assure Member State
sovereignty in relation to country code NNAI plans and ITU-T E.164
(ENUM).  Resolutions on alternate calling procedures such as WTSA
Resolution 29, WTDC Resolution 22, and Plenipotentiary Resolution 21
address concerns for origin identification and misuse of resources.

WTSA Resolutions 47, 48, 49 and 64 deal with addressing-related
concerns (ccTLDs, IDNs, ENUM and IPv6). Along with WTDC Resolution 63,
on IPv6 and address allocation, these resolutions reference
Plenipotentiary Resolutions 102, on ITU's role in international
Internet-related public policy, including management of Internet
resources such as domain names and addresses, 133, on the role of
Member States in IDNs, and 180, on the transition to IPv6.  These
resolutions are also referenced as technical supports for the Internet
via Plenipotentiary Resolution 178 and WTSA Resolution 75.

Resolutions on Cybersecurity reference ITU-T Study Group 17's work on
public key infrastructures, identity management, and digital
signatures, including WTSA 50 and WTDC 45.  These references reflect
ITU-T work on discovery of identity management information in ITU-T
Recommendation X.1255.  The theme of confidence and security in ICTs,
as voiced in these resolutions and Plenipotentiary Resolutions 130,
174 and 181, may also implicitly reference the use of identifiers, and
the facilities for validation and enforcement that may be built around

Finally, in the context of Conformance and Interoperability, the
reference in Plenipotentiary Resolution 177 to concerns in developing
countries regarding counterfeit equipment may also designate a
function that may be served, in connection with the TBTA, through
validation and enforcement based on identifiers.

In Conclusion

We urge the FCC to reestablish the policy environment that gave us the
Internet and to reconsider the decisions made at the outset of the
Information Society project which have led to a thoroughly misguided
domestic telecommunications policy environment. An international
policy framework designed to support the type of network environment
presently projected in the Information Society project's enactments is
not consistent with the policies that assured that independent
networks could readily enter the network of networks in the United
States and freely interoperate among themselves.

We are not calling you to enact a sweeping redefinition of broadband,
as the American Legislative Exchange Council (ALEC) might call it; we
are asking that you reaffirm the policy framework that originally gave
us the Internet.  And we are asking that you not allow a commitment to
the international Information Society project as it is presently
articulated to mislead the US into recasting the very bases of the US
telecommunications tradition to which we owe the rise of the open


(Affiliations listed for identification purposes only)

Janna Anderson, Director of the Imagining the Internet Center, Elon University
Amelia Andersdotter, FITUG, e.V. (http://www.fitug.de/)
Karl Bode, Freelance technology writer, editor of DSLreports.com
Robin Chase, Founder, Zipcar, GoLoco, Buzzcar, Veniam ‘Works
Karl Fogel, QuestionCopyright.org
Gene Gaines, Gaines Group
Robert Gregory, BSEE, UCB, Non-Profit IT Director and IP Network Evangelist
Paul Hyland, Education Week
Seth Johnson, Information Quality Specialist
Bruce Kushnick, Executive Director, New Networks Institute
Dean Landsman, LCG
Jon Lebkowsky, President, EFF-Austin
Michael Maranda, Co-Founder, Chicago Digital Access Alliance
W. Scott McCollough, Esq.
Sascha Meinrath, Director, X-Lab, Founder, Open Technology Institute
John T. Mitchell, Interaction Law
Hunter Newby, CEO, Allied Fiber
Bruce Perens, co-founder of the Open Source movement in software
David P. Reed, Ph.D., Internet Pioneer
Chuck Sherwood, Principal, Community Media Visioning
Dana Spiegel, Executive Director, NYCwireless
Brough Turner, Founder, netBlazr Inc.
Paul Vixie, CEO, Farsight Security
John G. Waclawsky, Ph.D., Technology Advisor and Consultant, Chicago
and Washington
David Weinberger, Ph.D., Senior Researcher at Harvard Berkman Center
for Internet & Society
John Wilbanks, Chief Commons Officer at Sage Bionetworks
Brett Wynkoop, First provider of public Internet access in New York City

Respond to:

Seth Johnson
seth.p.johnson at gmail.com

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