The VCXC - Voice Communication Exchange Committee - is a Washington, DC based startup nonprofit, modeled on the Advisory Committee on Advanced Television Service.
The Demise and Short Life of the Federal *Computer* Commission
The course of questions posed by the Tatel, Williams, and Srinivasan DC Appeals Court panel convened on December 4, 2015, doom Tom Wheeler's brief self-coronation as the first and last Chairman of the Federal *Computer* Commission. This assessment reflects the views of a named petitioner in the appeal, so fans of Internet regulation may properly dismiss this assertion and the observations below. Courts suffer the same partisan divide corrupting Congress and the independent agencies, but a greater respect for due process allows merit to prevail on a more regular basis. The Oral Argument in the Open Internet Order represents a first and fatal imposition - Strike 3 - of due process the Commission successfully ignores between trips to the DC Circuit.
The proceedings in the oral argument provided an illustration of both the earnest attempt of the panel to get at the merits of the issues and the problematic nature of asking the legal profession to design communication networks. The complex issues arising during the three hour argument address pure fictions of ISP's, interconnection, edge providers, and end users. The definitions of these terms do not address the operational realities of the Internet any closer than a stick figure abstraction of a human being. The gross simplifications of stick figure land were nonetheless sufficient to expose the contradictions in rationale and violations of the Administrative Procedure Act as well as the arbitrary and capricious nature of FCC decision making. This outcome restores some faith in the system, but the impossibility of imposing top down industrial policy style regulation of the Internet was self-evident obvious at day one. The loss of regulatory humility represents the only change leading to the attempt to reverse 60 years of prior precedent.
The larger context and difficulties facing the FCC remain important factors. The FCC simply failed the impossible - justifying the imposition of a law established in 1934 in a voice context before the transistor or electronic computing on a network operating quite successfully without FCC regulation since inception in 1968. There exists 80 years of legal precedent constraining how the FCC implements Title II authority, so the FCC's ambitions require more than merely declaring an equivalence between telephone numbers and IP addresses. It turns out arbitrarily reversing 60 years of a successful policy is not so easy. The questioning in the oral argument repeatedly exposed the self-evident incompatibility between the 80 year old Title II voice rules and the Internet.
The demise of the regulated telephone network leaves communication regulators without work unless they find a way to impose themselves on the previously non-regulated Internet. The failure of the Open Internet Order represents an existential threat to the FCC. The FCC's expansive new assertions make it impossible for Judge Tatel to green light the latest Open Internet Order without destroying the framework he carefully assembled in Comcast, Cellco, and Verizon. The demise of the Open Internet Order five months before the next Presidential election leaves insufficient time for the current FCC to attempt another NPRM. The risk an administration led by Trump, Rubio, Cruz et al might take a different view makes it certain the FCC will immediately seek cert with the Supreme Court October 2016 Term.
Stipulating the above and admitting the precise mix and emphasis of flaws remains guesswork, a second pass through the recording suggests the panel will unanimously vacate the Order due to APA violations and side with the petitioners regarding limitations of Brand X, applying Title II interconnection, banning paid prioritization, and the invention of an Internet Conduct Standard. The likely lead author Judge Tatel may not entirely foreclose another try at Title II reclassification, but the Court will discourage the FCC from resubmitting the several aspects of the Order exceeding even the substantial discretion of Title II authority. The Court will agree with petitioners objection to the arbitrary merging of the Internet and telephone network and prohibition of mobile broadband regulation. The ruling will leave the Section 706 framing in the Verizon Opinion unchanged and leave the First Amendment issues for the Supreme Court
The summaries below list the exchanges between the panel and FCC lawyers (in the order arising during the oral argument) pointing to success of the petitioner appeal and demise of the Federal *Computer* Commission:
1. Panel recognizes FCC Goes Beyond Brand X: See Sallet's weak response to the challenge by Srinivasan about dragging web access into transmission as new beyond the propositions in Brand X. Tatel in questioning did not challenge Keisler's assertion none of the judges suggested in Brand X the FCC can make the information service component disappear entirely. None of the judges challenged Keisler pointing in redirect to the Computer Inquiry, MFJ, and Telecom Act history unambiguously asserting the national policy of Internet Access as an information service.
2. Tatel seeks missing explanation for (Obama induced) abandonment of Section 706 "blue print" in Verizon: Tatel explicitly points out the Title II Order is inconsistent with the 706 "blue print" in Verizon as initially implemented in the May 2014 NPRM. He declines to accept Sallet's claims of a change of circumstances or facts the timing makes implausible. Tatel tries several times to get Sallet to provide the "best crisp answer" to the "change in perception" leading the FCC to "abandon" the 706 "blue print". Sallet cannot admit the truth regarding John Oliver and presidential intervention.
3. FCC 11th hour (Google induced) non-reclassification of imaginary ISP to Edge service: All of the justices pressed Sallet on the "Cheshire Smile" problem Kiesler identified. Williams, Srinivasan, Tatel all pressed Sallet to answer how a Title II end user service subsumes the interconnection ecosystem connecting edge providers without reclassifying the imagined service between ISP's and edge providers. Sallet attempted at "in connection with argument" did not satisfy Srinivasan. Williams stated a worry the FCC plan becomes a shadow over the interconnect agreement. Tatel expressed confusion about Sallet's answer to Williams. Kiesler identified in redirect the flaws of Sallet's offer regarding precedent.
4. Ban on paid prioritization unnecessarily forecloses possible end user benefits: Williams wondered how the FCC considered case by case review of interconnection sufficient but paid prioritization requirements required a blanket ban. Sallet replied with a rationale from a policy perspective, but he had no answer for the basis for a ban as a legal matter and ignoring antitrust as an alternative. Williams pointed out the obligation to pursue lesser interventions and specifically pointed to the only edge provider petitioner in the case Berninger complaint regarding the foreclosing of business models. Tatel invites intervenor Russell to respond to paid prioritization and receives no answer because Russell apparently did not review Berninger brief. Tatel will need to include Williams concern about the ban on paid prioritization to obtain a unanimous ruling.
5. Violation of APA in failure to provide notice regarding key provisions and theories: The theory of the retail relationship grabbing on to interconnection is not in the NPRM because it only arises with Googles intervention. The merging of the Internet and telephone network into a single network via the equivalence of IP addresses and telephone numbers is a late addition. The plans to impose Title II because they do not get formulated until President Obama's intervention. The plans to regulate interconnection and mobile under Title II were not in the NPRM as the NPRM attempts only the Section 706 blue print. The judges seemed well aware of the external forces intervening after the NPRM and the fact the magnitude of the changes would normally require a reissue of the NPRM.
6. Merging Internet and telephone network undone by violation of requirement for devices to reach "substantially" all endpoints: Judge Tatel led the question of FCC counsel regarding the flaws in the FCC attempt to collapse two networks into one and the problems arising from an attempt to claim telephone numbers and IP addresses are equivalent. The FCC counsel made no progress in preserving the "Frankstein" theory of two networks become one. The loss of the two networks is one network theory represents a fatal blow for the application of Title II to mobile broadband.
BlueMark Certification: An alternative to the click-to-agree tyranny
It seems long overdue to restore opportunity at the frontier of cyberspace undermined by the daily imposition of inscrutable, unilateral, and non-negotiable click-to-agree terms of service. A steady accumulation of disadvantage makes regret a likely near term replacement for the bliss of ignorance about the grievances built-in to online terms and conditions imposed Facebook, Twitter, Pinterest et al. The BlueMark Certification represents an experiment in giving end user and service provider perspectives the same weight. The occasional burst of outrage along with general indifference leaves blatant flaws in the terms of engagement bestowing one-sided advantage to service providers unchecked. The BlueMark Certification restores the conditions necessary to make any contract valid - negotiation of terms and informed consent.
The defects in the process date to the terms included with remote access to databases services like LexisNexis or Bloomberg in the late 1970's and early 1980's. These pioneers initiated the tradition of non-negotiable terms and conditions that AOL continued in the happy days of pre-broadband Internet hegemony during the 1990's. The Facebook Terms of Service today looks quite similar and equally one-side as the AOL version from 1998. The differences and growing risks owe to a dramatic expansion in the magnitude of end user data Facebook mines to target advertising. The urgent need for a new model of engagement reflects trends with inexorable technology progress turning the present inequities into the Orwellian surveillance state imagined in "1984".
Facebook already demonstrates significant capacity beyond mere targeting of advertising to the control of human activity. Facebook calls this "maximizing engagement" which absent doublespeak means controlling human behavior. Facebook’s stated mission - "to give people the power to share and make the world more open and connected" - does not account for the amazing 20x valuation multiple versus revenue and a $300bn enterprise value (investors grant AT&T only slightly more than a 1x valuation multiple versus revenue.) The single underwhelming dollar of advertising revenue Facebook extracts each month from 1.5 billion users does not excite investors. Investors view Facebook as a nascent platform for human control the social network's 12,000 word terms-of-service seeks to preserve.
BlueMark Certification provides a means to contain the darker risks of Mark Zuckerberg's mundane quest for wealth and power. Obtaining end users equal standing in the contract negotiation for terms and conditions requires ending the nonsensical and inherited historical accidents governing the status quo. This requires co-creation and complete transparency of contract terms, negotiation of the contract outside of and prior to the transaction, limiting length of the contract (4500 words was sufficient for the United States Constitution), granting end users the protection of legal representation, and defining a fair and mutual means of amendment and enforcement. End users acquiring products and services recognized with BlueMark Certification can trust the associated terms and conditions reflect mutual benefit and consent.
The BlueMark Certification process proposes a singular and uniform contract binding both end users and service providers. There exist no purpose inviting 10,000 different services to negotiate 10,000 different terms of service. Cyberspace represents a single business context and humans share the same hopes and dreams. The status quo provides sufficient evidence to expect a single contract to prove sufficient as companies already place a variety of services under a single terms-of-service. A one time decision to endorse the BlueMark Certification by both service providers and end users replaces the multiple and pointless click-to-agree terms and conditions presently encountered on a daily basis.
A BlueMark Certification process succeeds or fails on the merit of adoption by both service providers and end users. The idea does not preclude service providers from attempting to preserve nonsense status quo or others from implementing different certification models. The present challenge arises from the difficulty of overcoming the collective action problem exposing the ruled to an abuse of power by the ruler. Recognizing an abuse of power - for which existing online terms and conditions certainly quality - does not represent the problem. The delegation of power to a ruling class has always proven in varying degrees problematic and difficult to unwind. The experiment with a BlueMark Certification pools individual action with brand marking and standard corporate and contract law in the United States.
A Vision of the Gigabit Age
None of the even hyperbolic claims about Internet driven planetary transformation sufficiently capture the magnitude of the stakes for humanity with the approaching Gigabit Age. A first communication miracle over the last 20 years makes the 10Mbs smart phone connection seem routine even as a similar functionality in 1995 cost $10,000 per month. The Moore's Law doubling of transistor density continues and promises a technology trajectory with another 1000 fold improvement in the value proposition and second communication miracle over the next 20 years. Compare this with the prior six decades of communication non-improvement and still escalating costs in the case of healthcare, energy, military, insurance, and education. A proper appreciation of the Gigabit Age requires recognizing the capacity for increasingly frictionless global communication to break the 10,000-year tyranny geography imposes on human civilization.
The question of whether this pushes humanity toward an Orwellian dystopia (no where to hide) or Barlovian utopia (defeat of "weary giants") remains unanswered. The answer seems likely to arrive soon as the foreclosure of the Internet frontier continues to build momentum. The geopolitical struggle over Internet governance ends any hope for the benign neglect associated with the first communication miracle. Realizing the Gigabit Age requires the type of direct action Barlow implies by channeling Thomas Jefferson in A Declaration of Cyberspace Independence. Enthusaism for the sentiment in the Declaration represents the current and insufficient extent of progress given stakes for humanity greater than the discovery of fire.
The mainstream Internet governance debates consider only who among the ruling class should control the communication future between existing multi-stakeholder entities, national governments, international institutions, or "Do No Evil" corporations. It seems reasonable wonder who among these actors has a track record worthy of projection into Cyberspace. Consent to delegation of the Cyberspace governance to any third-party savior threatens dystopia, because the mainstream actors - by definition representatives of the status quo - view the first communication miracle as the mere trigger for a new phase in the long standing geopolitical power struggle. None of these actors even contemplate the implications of a second 1000 fold expansion of communication capacity except to make sure it does not happen. The public interest groups inviting the extension of the Federal Communication Commission Title II authority dating to 1934 made a fatal mistake in this regard.
Cyberspace gives humanity the opportunity to rise above the fear driven zero-sum logic already on track to turn the Internet into a cyberwar version of the Cold War. The way forward requires adopting the sentiment in John Perry Barlow's Declaration rejecting the entire category of "weary giants of flesh and steel" as unworthy stewards of cyberspace. Barlow points out the threat of coercion does not and has never reached the non-material realm of human thought. The search for Cyberspace among the machinery of the Internet holds no more promise than a locating Mind in the tissue of the brain. There exists nothing about the present state of the world to recommend a plan that imports existing power structures into Cyberspace. The frictionless interconnection of the planet makes the sovereign human being the basic unit for implementing inalienable rights.
Government actors made no contribution to the first communication miracle aside from getting out of the way after 1995. Communication regulators occupied themselves managing (causing) the decline and obsolescence of the traditional telephone network and rewarding failure seems a self-evident bad idea. Another 1000 fold communication miracle promises to eviscerate the increasingly tenuous state of borders justifying the existence of nation states. Even the well meaning central planning ambitions of government fail to achieve their stated purpose. Humanity does not need to resolve any or all the uncertainties about navigating the Gigabit Age to recognize a track record disqualifying the claims of authority by anyone associated with the status quo.
Barlow admits in the Declaration the assertion of the Independence of Cyberspace does not discount the continued reign of coercion in the physical realm and "consent to your rule over our bodies." Nor does he presume success and merely offers hope Cyberspace will "be more humane and fair than the world your governments have made before." Cyberspace complements but does not replace "real space". Coercion and communication anchor two ends of the spectrum of human interaction and always co-exist in tension with each other. The Gigabit Age represents for communication the equivalent of the Atomic Age for coercion. It alters the balance of power by extending the unifying force of shared experience around the planet in a manner precisely analogous to the capacity of nuclear weapons to annihlilate all life on the planet.
The extent of communication over millennia provides an index for expansion and exercise of coercion for the decline of civilization. Warring parties do not spend a lot of time talking on the telephone. The origins of government as a means to exercise force leads to preoccupation with communication conspiracy. The anxiety increases in proportion with ambitions for abusing power as as communication tools provide a means to organize in support of accountability and in defense of inalienable rights. There always exists an imperative of communication supremacy, because the ruling always fear the ruled.
There exist claims to every square meter of the planet, but advancing communication technologies provide a means to manufacture new frontier. The Gigabit Age represents a mere starting point in addressing the universal human longing for self-determination. The present moment offers the best opportunity to preserve these new frontiers. It remains possible to add a trust layer to the Internet and the Social Contract Barlow proposed in 1996 without consenting to a delegation of control of Cyberspace to the divine right of kings or communication regulators.
The fact communication represents a necessary input to accountability makes government extremely poor stewards of the means to the collective thought of citizens. The First Amendment protections of speech, religion, press, petition, and assembly reflects the unique conviction and direct experience of the Founders Fathers of America. Barlow's Declaration makes the same assertion in arguing against the granting a ruling class control over a new powerful means of communication in America or anywhere else on the planet.
Barlow's Doctrine of Independence Versus a New Cold War in Cyberspace
All the proposals in the planet wide power struggle over Internet governance ignore the basic point in John Perry Barlow's 1996 Declaration of Cyberspace Independence. The 200 or so nation states lack a legitimate claim to govern Cyberspace. One can pose various theories justifying the extension of national sovereignty to the Internet, but Barlow argues the track record exposes nation states as unworthy of the public trust necessary for stewardship of Cyberspace. Present developments remove any doubt as Internet governance disputes head toward a new Cold (Cyber-) War.
Barlow does not claim Cyberspace diminishes of the coercive power of nation states in the physical realm. "We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies." The Declaration points to a new opportunity to expand the non-physical realm of thought. "We will spread ourselves across the Planet so that no one can arrest our thoughts." A new degree of accountability (not loss of coercive powers) represents the threat worrying the ruling class and makes the struggle over Internet governance an existential crisis.
Barlow remains alone in recognizing the distinction between the Internet as physical infrastruction and Cyberspace as the non-physical "civilization of the Mind". The fact the power of coercion does no reach the non-physical realm (i.e. control of thought) does not represent a new or controversial idea. No amount of searching will locate mind in the physical matter of the brain or collective thought within the routers of Internet infrastructure. Dismissing Barlow leaves Internet governance devoid of content, because the consequences of Cyberspace for mind and collective thought represent the only reality at stake.
The strident and urgent tone of the Declaration speaks to the need for humanity to initiate next steps. Barlow channels Thomas Jefferson and points to the same opportunity to " begin the world over again" described by Thomas Paine in "Common Sense". The Declaration includes parallels to nearly all the points in the Common Sense pamphlet, because 240 years does not alter human nature or the nature of power. Paine and Barlow decry the same impositions of a distant authority, the unnecessary entanglement in war, the desire to escape government dysfunction, and the foreclosure of natural rights.
Barlow offers the Declaration in the hope the opportunity, he views as important for humanity as the invention of fire, does not expire. The warnings in the 1996 Declaration represent the current reality with pervasive surviellance, constant pressure for censorship, accelerating fragmentation, escalating cyberwarfare, and other "problems" providing government excuses to assert even further control. Realizing the potential for humanity still awaits a next step as there exist no leaders among the 200 nation states, within the international governing bodies, or corporate executives among the powerful Internet brands working to implement Barlow's Doctrine of Independence.
The repeal of the Communication Decency Act as Title V of the Telecommunication Act of 1996 served as the original motivation and target of Barlow's Declaration. American consumer advocates ignored Barlow in a recent embrace of plans to grant the Federal Communication Commission powers far beyond mere communication decency to discretionary authority over the entire Internet. The surprising development required only inventing a "boogie man" sufficient to convince the public to concede their freedoms voluntarily. The sparse evidence of a problem in need of solution and the FCC's appalling track record of regulatory interventions did not deter the hysteria.
Barlow calls for trust in the self-empowerment capacity of Cyberspace and humanity acting as a whole as the means to realize the potential of Cyberspace. The Declaration points out the technical implementation of the Internet remains incomplete without the Social Contract necessary for trust. He nonetheless warned against relying on the government and corporate power status quo aka "weary giants of flesh and steel" as the means for achieving trust in Cyberspace. There exists an opportunity and need for the people to implement a new mode of governance because Barlow finds as Samuel Adams describes in the days leading up to July 4, 1776 "freedom of thought and the right of private judgment, in matters of conscience, driven from every corner of the earth..."
The Hidden Code in Barlow's Declaration of Cyberspace Independence
John Perry Barlow's A Declaration of Cyberspace Independence continues to attract praise as an expression of a widely held sentiment and scorn as techno-utopian fantasy. The two assessments differ only in the despair of the latter regarding a way forward, but no one disputes the fulfillment of Barlow's warning that "obsolete information industries would perpetuate themselves by proposing laws...". A deeper inspection of the Declaration reveals a hidden code describing the means of turning fantasy into reality. It seems prudent to consider the elements of this plan before escalating assaults entirely close the window of opportunity for Cyberspace independence.
Barlow recognizes in the Declaration a distinction between Cyberspace and the Internet that most continue to miss 20 years later. The Declaration never references the "Internet". Barlow uses Cyberspace - "the new home of Mind" - to reference the non-physical notion of thought. Internet like brain references a physical object within reach of the coercive power of government and empty potential without Mind. The Declaration merely offers an update to the long standing, non-controversial, and inalienable freedom of thought. Collective thought already enjoys protection via the five freedoms of the First Amendment - religion, speech, press, assembly, and petition.
The Founding Fathers enumerated the 1789 modes of collective thought first among the Bill of Rights for a reason. Madison et. al. understood as scholars of human history and through direct experience a survival instinct leads the ruling class to foreclose or assert control over means of collective thought. Barlow emphatically warns to expect a withering assault by government on Cyberspace, and posted the Declaration to 200 friends the day after President Clinton signed the Telecommunications Act of 1996. Twenty years later, President Obama championed the extension of the Communication Act of 1934 to the Internet in order to grant government full discretionary authority over anything with an IP address - aka everything.
Human reality spans physical and non-physical worlds, and the Declaration locates Cyberspace entirely within the latter - "there is no matter here". Barlow disavows violent revolt in the physical world by "consent to your rule over our bodies," but admits no concessions regarding the emerging "civilization of the Mind in Cyberspace". Half of the 52 sentences in the Declaration deny government any legitimate claim to authority in Cyberspace - "You have no authority where we gather." Barlow considers and rejects moral authority, the need to solve problems, existing law, sovereignty, borders, ownership, and coercion as well as consent or permission to "reject the authorities of distant, uninformed powers."
The Declaration addresses - "Governments of the Industrial world, you weary giants of flesh and steel..." - but Barlow speaks to the citizens of Cyberspace. By some miracle of intuition, the Declaration includes a coherent plan for defending Cyberspace independence in spite of government assertions the "great and gathering conversation" remains mere "public construction project". An aversion to coercion provides the overarching framework for the plan - "we cannot obtain order by physical coercion." Barlow recognizes a monopoly on coercion represents the basis for government in the physical world, so any reliance on coercion "provides an excuse to invade our precincts".
Precluding coercion empties the usual governmental tool kit, because coercion and government operate in tandem in the physical world. Barlow goes even further - "We have no elected government, nor are we likely to have one...". Repudiation of elections sets-off alarms as a denial of sacred democracy and embrace of anarchy, but the Declaration also identifies the existing sources of order Barlow observes in Cyberspace - "our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions." Cyberspace is an "act of nature...". "We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge." The mutual recognition of individual sovereignty preserves the inalienable rights requiring protection from government in the physical realm, because there exist no need to grant coercive authority to a third-party called government in Cyberspace.
The growth of the Internet from 30 million early adopters at the time of the Declaration to 3 billion people today validates Barlow's intuition. There exist appropriate anxieties regarding the future, but the Declaration warns to expect a government "claim there are problems among us that you need to solve". "Many of these problems don't exist." "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means". Direct experience starting in 1985 leads Barlow to reference the universal law already operating in Cyberspace in the absence of coercion. "The only law that all our constituent cultures would generally recognize is the Golden Rule."
Barlow asserts your "legal concepts of property, expression, identity, movement, and context do not apply to us" because they "are all based on matter" and "nor do you possess any methods of enforcement we have true reason to fear." The Declaration calls out "China, Germany, France, Russia, Singapore, Italy and the United States" for "trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace." These objections to "tyrannies you seek to impose" do not mean Barlow imagines spontaneous order as the only means of governance in Cyberspace. Barlow notes the "dreams of Jefferson, Washington, Mill, Madison, DeToqueville, and Brandeis" and invites these "dreams must now be born anew."
The Declaration notes the transformative potential of Cyberspace for humanity awaits the innovations possible by "forming our own Social Contract", although there may exist as many Social Contracts as humans in Cyberspace. Terms of participation must remain on an opt-in basis to comply with Barlow's exhortation against coercion. "We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth." "We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity." Barlow recognizes these ideals will remain unfulfilled if the new "global social space" falls under the control of governments "terrified of your own children" as "natives in a world where you will always be immigrants."
The final two sentences of A Declaration of Cyberspace Independence summarizes the imperative and aspiration. "We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before." The sentiment also highlights an aspect of the code hidden by the absence of any reference in the Declaration to technology. Fascination with the Internet as a marvel of technology almost always overshadows the purpose of technology as a benefit to humanity. Barlow avoids this error by skipping the usual reverence of technology in favor of laying out a plan to defend Cyberspace independence and putting government on notice the "global conveyance of thought no longer requires your factories to accomplish".
Introducing the New HDN Telephone Network and Infinite Communication Epoch
Historians trace the origins of the Internet to the discovery of a means to end life on Earth and the Atomic Age. The anxieties of military leadership about vulnerable command and control infrastructure led to packet networks and a rudimentary ("drop the bomb") capacity to support voice. An inexorable force known as Moore's Law subsequently turned packet networks into the frictionless means of moving information around the planet known as the Internet. Infinite communication arising from infinite destruction reaches full realization in the new telephone network or HD voice Network (HDN) poised to obsolete the public switched telephone network (PSTN). The ability to negotiate the coming infinite communication epoch will determine the winners and losers in the race to the future among 190+ nation states, their citizens, and humanity in the 21st century.
The Moore's Law driven transformation sweeping information technologies across the planet owes to the successful doubling of transistor density via Silicon and other means every 18 months for the last 50 years. The HDN promises an infinite communication epoch by directing the Moore's Law billion billion expansion of processing capacity coming by the end of this century squarely on the challenge of communication. The communication value proposition in terms of voice quality and the nature of the services offered by the old telephone network proved immune to continuous improvement after the arrival of the Federal Communication Commission (FCC) in 1934. A telephone call in 2015 offers almost the exact same experience as a telephone call of 1935.
Moore's Law deserves primary credit for expanding the reach of telephones to nearly everyone on the planet and the mobile revolution, but mobility does not expand the utility of calling experience. The enabling of HD voice by the all-IP HDN doubles the number of octaves associated with a telephone call and provides a roadmap for delivering full spectrum sound quality by the end of the current decade. The efficient nature of IP networks creates the possibility of unlimited calling plans with a global reach. The HDN finally fulfills the original ambition of Alexander Graham Bell in making the experience of a conversation at a distance the same as meeting in-person.
One can hope infinite communication holds more benefits than infinite destruction, but technology amplifies the potential for both the positive and negative aspects of human nature. Whatever uncertainty remains about sustaining Moore's Law, the implications of infinite communication turn on questions of governance. The outlines of the conflict and opportunity start to come into focus with the forces tending to balkanize the Internet across national borders. President Obama asked the FCC to assert authorities in the Communication Act of 1934 and PTSN like obligations on IP networks, but the communicating public and policymakers have no notion of the communication tsunami coming with the HDN.
A loss of interest in plain-old-telephone-service leading to a voice-is-dead conventional wisdom does not offer insight into the potential of the HDN. Standard definition voice quality imposes a hearing impairment on everyone using a telephone sufficient to justify a hearing aid in the context of daily life. The preference for voice as means of in-person communication is self-evident, so the extent the HDN allows network operators to match the in-person experience represents the only uncertainty. The old telephone network remains a bottleneck connecting the 5000+ separate networks and now largely IP networks delivering telephone calls. A new method for provisioning telephone numbers on both the PSTN and HDN as well as interoperability initiatives removes this limitation in 2015.
Language provides the principal mechanism for the advance of civilization 100,000 years after emerging on a planet with a human population of a few million. Robert Wright identified communication and trust as the necessary conditions for prosperity in his survey of human progress in the book "Non-Zero". Whether or not HDN joins the telegraph and telephone among top ten inventions in world history depends on resolving the question of trust (governance). There exists a long standing imperative linking power to the control of communication, but previous means of communication did not benefited from a Moore's Law dynamic like the HDN and previous modes of power never faced an infinite communication epoch.
September Tsunami: Theory Versus Practice in Telecom Policy
The Internet uprising in support of reclassifying IP networks as Title II telecommunications promises to return as a September Tsunami. Public interest groups already buried the FCC in one million comments, but this cure will prove worse than the disease. The entire net neutrality debate owes to confusing the virtues of government regulation in theory and the actual practice of telecom regulation tracing to the Communication Act of 1934.
As a new Member of the Technical Staff at AT&T Bell Laboratories in 1991, I was surprised to find lawyers in attendance at all product development meetings. AT&T's service development efforts answered to an FCC definition of acceptable telephone service. This arrangement left the communicating public spending 40 cents per minute on domestic long distance and multiple dollars per minute for international calling. Voicemail, cell phones, and fax remained exotic luxuries in 1991. Writing letters remained a primary mode of communication.
I loved working in the beautiful Eero Saarinen designed Bell Labs building with the excellent employee restaurants, twice per day mail delivery, college level courses, and world class library. In 1991, the Tim Berners-Lee paper inventing the web was two years old, and the web browser did not exist. Bell Labs staff used email for internal communication and the pre-web Internet for File Transfer Protocol and something called Gopher. The scarcity of bandwidth made brevity and the minimal use of the space bar good email citizenship.
The good times for telephone companies and bad times for the communicating public came to an end in 1995 with the arrival of the commercial Internet and Voice over IP (VoIP). Two twenty-somethings founded a company in Israel called Vocaltec to sell PC software capable of breaking voice in the 20 millisecond packets necessary for distribution via the Internet. The Internet attracted 36 million early adopters by 1996 on the merits of a crazy business model absent metering connections by time or distance. Traditional regulated calling still accounted for 98% of telephone company revenue at the time.
The 10,000 people working at Bell Labs in Holmdel, NJ dispersed by 2003 leaving the vast Saarinen building vacant to this day. I left to help Vocaltec realize the dream of IP communications, but lawyers remained a factor in product development at Vocaltec. The FCC remained the decider on technical and legal superiority. A petition asked the FCC to declare Vocaltec's software illegal. My journey over between 1995 and 2005 during the founding of Free World Dialup, ITXC, Vonage, and the VON Coalition involved more a concern about the legality of communication innovations than the question of technical or marketing merit.
The FCC finally recognized VoIP as an information service via a 3 to 2 party-line vote in a petition Jeff Pulver submitted on behalf of Free World Dialup in 2004. This unleashed the non-regulated information services we now view as routine from Skype to Facetime and other forms of voice as application that transformed the communication desert into oasis. All of the improvements owe to a million fold expansion of connectivity starting with the 300 baud modems in 1984. The virtue of new communication services owes entirely to the contribution of the Moore's Law doubling of transistor density.
The enthusiasts seeking to end the non-regulation of information services seem to have no memory of the bad ole days when the LTE connections available for smart phones today would have cost $10,000 per month as a regulated service. The inventory of innovations benefiting end users between the creation of the FCC in 1934 and 2014 includes no notable contributions from the regulated telecom side of the ledger. Voice quality of legacy telephone services remains unimproved from the 1930's. Network operators will survive with or without reclassifying broadband Internet as a telecommunications service, but the last 25 years makes me fear for the communication entrepreneur.
A return to traditional telecommunication regulation returns lawyers as product managers. The cost of complying with FCC requirements competes with the resources available for novel ideas. The toxic nature of uncertainty about the extent of requirements and terms of compliance chills investment. The loss of the information services distinction exposes anything connected to an IP network to regulation by the FCC (aka everything.)
A company offering a service succeeds or fails depending on whether or not it attracts customers. The regulatory compliance deemed necessary by the FCC succeeds or fails according to the FCC. The 80 year track includes no examples of FCC Chairman admitting a regulatory mistake. The FCC staff and budget doubled in the years after 1996 as the communicating public abandoned regulated services in favor of non-regulated information services. FCC Chairman Tom Wheeler speaks of the need to preserve enduring values. This sounds great in theory, but nothing holds FCC Chairman accountable for rules preserving enduring values in practice.
Net Neutrality versus New Telecosm by Daniel Berninger
The anxiety about communication scarcity sustaining the net neutrality debate seems at odds with the realization of the bandwidth abundance George Gilder predicted in 1993. Tim Wu's net neutrality and Gilder's telecosm world views anchor opposite ends of the spectrum of possible communication futures. They co-exist because an insatiable human thirst makes communication abundance an oxymoron. Recognizing communication abundance removes a role for the government in allocating scarcity. The debate remains framed as a question about the future, so no one is in a position to guarantee the persistence of abundance. The track record offers evidence for both depending on whether one considers the recent past or telephone company machinations from the last century. The future will nonetheless arrive as either scarcity or abundance depending which of these self-fulfilling prophecies we embrace.
The case for the realization of Gilder's bandwidth abundance predictions seems unassailable given a 1000 fold increase in routine connectivity from 9.6Kbs dial-up modems to 10Mbs always on broadband. I can remember being encouraged to economize on the number of words in email messages during my time at Bell Laboratories in the early 1990's. My 112Kbs always on Internet connection via a Bell Atlantic ISDN connection to UUNet cost $500 per month in 1999. My present Verizon FiOS connection would have cost $20,000 per month in 1993. Moore's Law driven improvements extended the limits of fiber capacity from 10Gbs to 10Tbs between 1993 and today.
Tim Wu's net neutrality can point to the history of telephony from 1876 through Comcast's recent success in extracting special payments from Netflix as evidence of scarcity as profit maximizing strategy. Even conceding plenty of executives remain attached to scarcity business models, the question remains whether past performance predicts the communication future. Does violating net neutrality maximize enterprise value? Generous price to sales ratios reflects investor's awarding premiums to companies with value and innovation driven abundance business models. The same metric shows a consistent discount applied to companies with scarcity business models attracting regulation. The companies relying on scarcity to hold customers captive destroy the prospect for the sustainable growth investors covet. The investment community believes the value of networks requires an abundance business model.
The people sustaining the drum beat for regulated utility designation of IP networks might pause to consider the role of regulators in the demise of the telephone network. Why did 100% of growth in communication capacity and services come exclusively from lightly regulated wireless and unregulated information services over the last 20 years? Do the theoretical fears of scarcity underlying the net neutrality debate survive the IP transition? What role did the regulation play in decisions leaving telephone voice quality unimproved over the last 80 years. What contributions did the FCC make to the present communication abundance? Recognizing the merit of leaving information services unregulated is an indictment of regulation, not endorsement. There exists no disagreement regarding the magnitude of the stakes around communication as an input to the entire economy, but does the rush for government intervention merely reflect learned helplessness?
The net neutrality debate ignores the voluntary and cooperative means already expanding communication capacity in service of the public interest. It addresses the rules government might impose to force telephone companies to serve the public interest. The original framing of net neutrality addressed a conflict of interest between the stewardship of the networks delivering voice, video, and Internet. The IP transition pushes the entire $2 trillion base of communication services onto a single all-IP network. IP networks in telecom operate by the same dynamics as the non-regulation of information technology responsible for the virtuous cycle of continuous improvement driving Gilder's telecosm.
The FCC becomes a Federal Computer Commission to the extent utility regulation arrives for IP networks. The nature of any governance regime requires a means to distinguish between domains of jurisdiction. The bright line distinctions between communication and information disappear in all-IP networks. The leadership of the FCC and the financial beneficiaries of industry lobbying may not see the parallels with the Interstate Commerce Commission legislation abolished in the 1990's. The staff and budget of the FCC already doubled over the last 20 years even as the user base for regulated telecom fell by 50%. The divergence of telecom and information technology after 1956 represents a remarkable twin study and case for the reinvention of telecommunications as non-regulated information technology.
The low value assigned to communication business models relying on scarcity will continue as long as Moore's Law persists. The ability of TCP/IP to traverse multiple media types and the expanding functionality of smart phones promises a wireless version of the declining demand for wireline voice services. There exist no way forward for telephone companies except through expanding the value proposition of networks. The decoupling of application and connectivity by TCP/IP already offers the structural separation sought by public interest groups. The question is whether there is exists a need for a top down government imposition of network neutrality when market forces already punish violations. Everyone agrees all-IP networks represent a turning point for the communication business. Turning a corner requires proceeding with caution before applying the assumptions and conclusions of the past.
Paradox of the Telecosm by Daniel Berninger
George Gilder outlined an optimistic vision of telecosmic bandwidth abundance in 1993 when connectivity meant 9.6Kbs dialup modems accessing barely 100 websites. Twenty years later, hand wringing about bandwidth scarcity represents the dominant narrative in spite of a 1000 fold expansion in routine connectivity to 10Mbs. The same period saw the number of people with access to the Internet grow from 2mn to 2bn and the website count reach a billion. The gloom persists even though the tests of fiber capacity Gilder describes achieving 10Gbs in 1993 run at 10Tbs today. The realization of Gilder's prophecy absent the accompanying optimism creates a Paradox of the Telecosm.
Imagine the malaise should work toward the next 1000 fold improvement succeed in making 10Gbs the baseline connectivity in twenty years. Pervasive pessimism about the prospect of this future does not dissolve the paradox for two reasons. The origins of prior improvements remain in place in the form of the investments sustaining Moore's Law and the fact expanding capacity remains the path of least resistance for increasing the value of networks. The fear of villainous network operators seeking telecosm gatekeeper status does not explain the glum reception for the already existing 1000 fold expansion in connectivity since 1993.
The telecosm contributes to a zero sum race to the bottom moving jobs toward the regions with the lowest common denominator of regulations and labor costs. The litany of economic woes in the news show up as the declining fortunes of society in economic statistics. Correlation with the telecosm does not imply cause, but neither did the telecosm prove economic panacea. Succeeding generations threaten to lose ground for the first time since the Great Depression. The economist peers of George Gilder including Paul Krugman and Larry Summers see the American economy as entering a permanent stagnation only to be lifted by the occasional stock bubble.
The odd state of affairs reflects a failure to act on the larger transformation imperative contained in George Gilder's vision. Gilder points out technologies transform society by driving the cost of a prior scarcity to zero. The industrial revolution arose from machines performing physical work previously requiring human or animal labor. The revolution in computing Gilder describes in Microcosm (1989) reflects the benefits of transistors approaching an incremental cost of zero. The destruction of prior scarcities become revolutions, because prior modes of governance (oppression) utterly fail in the new environment.
The Pardox of the Telecosm reflects the attempt to run the new world of the telecosm without changing the mode of governance. The expansion of books with the decline of America as the primary theme provides both evidence of the paradox and the failure to recognize abundant bandwidth reduces the relevance of borders as organizing principle. Keep in mind it took eight days for a letter to travel from Boston to Philadelphia and 30 days from London in 1776. The status quo reflects 10,000 years of trial and error around governance leveraging the physical integrity of territory. The telecosm Gilder describes in 1993 points to the loss of distance as the primary basis of human civilization.
Gilder's friend John Perry Barlow believes the forces unleashed rise to the level of the human discovery of fire. The increasingly hysterical attempt to recover distance represents both a lost cause and a serious threat of the type of surveillance state imagined by George Orwell. Absent the demise of Moore's Law, the 1000 fold expansion of communication since 1993 becomes a billion billion expansion by the end of the century. The telecosm provides new means for the distribution and concentration of power. The resulting tension gives the telecosm a revolutionary potential George Gilder urges policy makers to push in a positive direction.
The optimism in Gilder's description of the telecosm owes to an ambition for solving the new challenges of governance and improving the human condition. The powers of the telecosm destroy to the extent directed merely to replicate and defend the status quo. The telecosm may require the invention of physical realm like property rights for individual spheres of communication. Paving roads facilitates new types of human interaction and commerce as well as makes it easier to rob banks. The telecosm connects people independent of distance, but it also provides an awesome platform for conspiracy.
George Gilder addresses the resulting policy questions directly in a new book "Knowledge and Power" (Regnery, 2013). He argues it remains a test of governance whether the positive or negative of the new communication intensive telecosm or any new technology predominate. The loss of the optimism responsible for the Paradox of the Telecosm reflects a failure of governance and ambition, not Gilder's vision.
Book Review: Knowledge and Power - George Gilder's New Republic by Daniel Berninger
George Gilder's new book "Knowledge and Power", scheduled for release June 10, 2013, completes a technology trilogy with "Microcosm" and "Telecosm". Gilder applies Information Theory, pioneered by Claude Shannon in 1948 around questions in telecommunications, to the forces at work in the economy. It takes some time to get comfortable with the abstractions of Information Theory, but Gilder deserves credit for finding a strikingly original metaphor for the relationship between the governed and government.
All of Gilder's books point to the entrepreneur as hero providing the surprising insights and discontinuous jumps in progress. He maps these surprises to the notion "entropy" as the "information" in Information Theory. Gilder's key insight comes in recognizing the sharp distinctions between message and medium make Information Theory applicable to any context where an input produces an output - like economics.
The turning point comes in Chapter 9 - Fallacies of Entropy and Order - when Gilder breaks with libertarian orthodoxy and attacks the notion "spontaneous order". Gilder concedes government must exist to create a reliable container - called the "channel" in Information Theory" - for economic activity to exist. Information Theory nonetheless preserves the merit of minimalist libertarian intervention as means, because conveying information remains the end purpose of any communication system.
The recognition economies require both order (i.e. channel) and disorder (i.e. information) provides a means of unifying liberal and conservative perspectives. The challenge of creating a working relationship between champions of government (channel) and enterprise (information) goes to the heart of an obstacle plaguing theories of governance since "The Republic" by Plato. The intractability of disputes between liberals and conservatives owes to an inherent truth in both perspectives, but Gilder shows neither offer a complete model of governance.
This unified theory of governance does not require Gilder to recant assertions or complaints in previous books. The bulk of "Knowledge and Power" covers familiar ground in the Information Theory context with the same blind spots likely to animate book reviews. The introduction of the Information Theory framework nonetheless provides a basis for moving beyond mere hand waving. It provides a way to understand why the prosperity of the 1990's gave way to the malaise of the 2000's via a destructive interaction between channel and information Information Theory calls "noise".
Critics may dismay to discover history grants the application of communication theory to the organization society a status even more exalted than George Gilder claims for himself. The status of the human condition and prospects for a global population reaching 10 billion by 2050 addresses a much larger question than the course of capitalism for the few percent of us living in America. A Nobel Peace Prize seems small reward to the extent Gilder's ability to popularize ideas puts communication theory in play as a new way forward.
As with all great insights, the merits of organizing society around a theory of communication seems obvious in hindsight. The capacity for war deals with the fragmentation of authority, but the extent and nature of civilization turns entirely on questions of communication. Claude Shannon's Information Theory and the transistor arose from AT&T Bell Laboratories as solutions to problems of communication. No one can dispute the realization of George Gilder's predictions in "Microsm" (1989) and "Telecosm" (2000) regarding the pervasive expansion of information technologies in the economy. The new book "Knowledge and Power" complete the trilogy by connecting the Information Theory juggernaut underlying iPhones and megapixels as a foundation for organizing society itself.
Choosing Between World Peace and Utility Model in Communication by Daniel Berninger
The exodus of the communicating public from the PSTN threatens the utility regulation of telephone companies. The proliferation of communication applications using unregulated information technologies creates the policy equivalent of heating a house with every window and door open. A 50% increase in the annual funding of the FCC since 2000 corresponds with a 70% decline in the end user constituency of regulated networks. The adoption of Internet like IP networks by telephone companies leaves policy makers heating an empty house.
The resulting crisis among defenders of the utility model reflects a remarkable irony. Forces shaping communication networks represent the literal (not just metaphorical) realization of a war game. There exist warrior modes of interaction with zero sum (I win/you lose) consequences and peacenik modes with non-zero sum (I win/you win) outcomes. Utility regulation arose as a means for peaceniks to contain the threats posed by the warriors in control of communication networks. Internet protocol put the peaceniks in control of the communication network. The subsequent decline of the regulated PSTN and embrace of the IP networks forces peaceniks to choose between world peace and the utility model of communication.
The defenders of utility regulation argue the threat of market power and vertical integration remains unchanged by a transition to all-IP networks. The solution in the form of utility regulation also remains unchanged since the arrival of government intervention with Kingsbury Commitment 100 years ago. The case for non-regulation starts with adding world peace to the stakes in play. IP networks provide a means of comprehensive communication connecting humanity across all distances without regard to country of origin. The risk regulations pose to IP networks as a new font of communication abundance takes world peace off the table in any return to utility regulation. Conceding the need to regulate IP communication grants fragmented jurisdictions of authority across 200+ countries the right and ability to disrupt the global flow of communication.
The reluctance to regulate the Internet reflects recognition of the social benefits generated by the network of networks in the absence of government intervention. No one anticipated the juggernaut to emerge from the internet protocol at the moment of invention in 1973. Nor even beyond a few true believers and futurists 20 years later in 1993 did anyone suspect the extent of the transformation of communication by 2013. The promise of IP networks reflects the continuous improvement possible in an ecosystem driven by software innovation and an inexorable Moore's Law doubling of transistor density. The nature of the utility model of communication yields a telephone service entirely unimproved over the same 40 year period.
Even utility theorists concede the Internet as a special case where non-regulation works, but the Internet represents an existence proof for the benefits of any IP network. Internet protocol alters the mathematical imperatives of communication networks as a war game. The transition to all-IP networks by telephone companies creates new opportunities for revenue growth like HD voice and a diversification of services speeding the return on investment capital. Moore's Law promises an on going reduction in the unit cost of network capacity and a sustainable means to expand addressable market entirely missing in the case of the PSTN.
Peacenik's cannot avoid the requirement for a presumption of innocence in any fair trial of the threat the transition to unregulated all-IP networks poses to the communicating public. Regulators skeptical about the unique merits of IP networks remain obligated to identify market failures justifying re-regulation. Calls to defend the regulatory status quo must remain linked to explicit social benefits. In any case, no one can argue preserving the utility regulation of telephone companies contributes to the cause of world peace...the time has come to give peace a chance.
Transition global telecom industry to all-IP networks and upgrade the universal core voice service to HD voice by June 15, 2018.