Time to school the FCC on what "free" really means

by Doc Searls

It's time to get ornery again with the FCC. Fortunately, they're asking for it, by soliciting comment on this FCC rulemaking proposal for "Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands.

It's a chocolate-covered spider.

The chocolate is cost. The rulemaking proposes making Internet access over that spectrum "free" — in the free-as-in-beer sense. Not the free-as-in-freedom sense. Especially not in the free-as-in-speech sense. And least of all in the free-as-in-markets sense.

The spider is in the fine print:

The licensee of the 2155-2188 MH band (AWS-3 licensee) must provide as part of its free broadband service a network-based mechanism: 1) That filters or blocks images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents. For purposes of this rule, teens and adolescents are children 5 through 17 years of age.

The easy take here is to say "On the one hand, it's free; on the other hand, it's filtered." But there are more than two hands here. FCC rulemaking is octopus farming, often resulting in a tangle of tentacles that suck in more ways than you can count. Here are four that I can see, right up front:

1) This rulemaking for the first time defines the Net as a content delivery service on the model of over-the-air television and radio. Those too are "free" (as in beer), yet subject to a regulatory regime where "obscenity" and "indecency" have long been prohibited and fined severely. By dividing the Net into "free" and sold forms, this rulemaking also positions the latter — that is, the Internet you get now from your phone or cable TV company — into the same regulatory regime where cable TV has reposed for the duration. You can say "fuck" there and not be fined. But you can't say it on your local TV newscast, because that's "free".

2) This rulemaking positions the Net as an exclusive franchise of single companies: in this case, the spectrum auction winner. This has been the case for some time in a de facto sense, since most of us get the Net from a choice of just one or two carriers, who set all the terms of use. But in effect we'll move that duopoly from de facto to de jure.

3) This rulemaking fails to respect what caused the Net's success in the first place, which is that it serves as an open and ever-expanding platform for an infinite variety of uses, including a vast assortment of markets and businesses. It is a rising tide that lifts all boats. Compare the sum of money made with the Net against the sum of money made because of it. The latter dwarfs the former by a ratio so high that it verges on the absolute.

4) This rulemaking reduces the "free" (as in beer) part of the Net to closed and private marketplace where the only business is advertising. No doubt advertising is Hot Stuff right now. It's floating Google's boat and Google is a nice company (as well as the largest Linux-based project on Earth). But the Net as a business environment is designed to be much more than that. Creating, by rulemaking, a place where only one company — the carrier — can make money is a huge first step in the direction of yet another monopoly.

Naturally, lobbying is involved here. Almost a year ago Harold Feld described how a start-up called M2Z had been pushing for exactly what the FCC is proposing here. While Harold posed a measured and careful approach to M2Z's ideas, he also added this:

...most importantly, the FCC should think about this for UNLICENSED SPECTRUM ACCESS (or non-exclusive licensing on the model of the 3650-3700 MHz Band). After all, opening the band on an unlicensed basis will solve all the messiness and delay of having creating auction rules and running an auction. Existing chip sets can already transmit and receive on the 2.155-2.175 GHz band (the AWS-3 Band). Right now, manufacturers suppress that ability to comply with the FCC’s rules for certifying unlicensed devices. But if the FCC opened the band to unlicensed and set technical rules for operation, these manufacturers could enable their chipsets with a software download. Rather than wait for a licensee to develop and deploy new equipment, we could leverage the already existing infrastructure. And, while the band is not super great on its own, it can work in conjunction with the existing 2.4 GHz and the 900 MHz band to provide two new non-overlapping wifi channels. That’s a nice little capacity add.

Daily Wireless points out how M2Z's ambitions line up with FCC chairman Kevin Martin's hopes to foster "some kind of a lifeline broadband service for consumers". Not that this assures a smooth ride. The article adds,

However, Rep. Cliff Stearns (R. FL), whose career has long been funded by the AT&T PAC money, notes ArsTechnica, asked Martin to postpone the plan. Stearns took Martin to task because the Block D auction earlier this year didn’t have a winning bidder. The Wall Street Journal also hates the free idea. [Direct WSJ link here. — DS]

Martin bowed to Stearns’ request and removed his plan from Thursday’s FCC meeting to auction 25 MHz of spectrum to a single bidder to build a nationwide network. The unused wireless spectrum is between 2,155 MHz and 2,180 MHz.

Martin said traditional industry players opposed his idea of free Internet because they wanted that spectrum for mobile video services.

The legal challenge may also be steep. In The FCC Stumbles into Internet Filtering, Wendy Seltzer writes,

Like or hate lawful pornography, we should be disturbed by the narrow vision of "Internet: the filtering rule presupposes, because you can’t filter “Internet,” you can only filter "Internet-as-content-carriage." This filtering requirement constrains "Internet" to a limited subset of known, filterable applications, ruining the platform’s general-purpose generativity. No Skype or Joost or Slingbox; no room for individual users to set up their own services and servers; no way for engineers and entrepreneurs to develop new, unanticipated uses.

Why? To block naked pictures among the 1s and 0s of Internet data, you need first to know that a given 11010110 is part of a picture, not a voice conversation or text document. So to have any hope of filtering effectively, you have to constrain network traffic to protocols you know, and know how to filter. Web browsing OK, peer-to-peer browsing out. You’d have to block anything you didn’t understand: new protocols, encrypted traffic, even texts in other languages. (The kids might learn French to read “L’Histoire d’O,” quelle horreur!) “Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content … not be accessible as part of the service.”

The Internet isn’t just cable television with a few more channels. It’s a platform where anyone can be a broadcaster – or a game devleoper, entrepreneur, activist, purchaser and seller, or inventor of the next killer app. Mandated filtering is the antithesis of dumb-pipe Internet, forcing design choices that limit our inventive and communicative opportunity.

Scott Bradner is not optimistic about the rulemaking's chances:

I'm no constitutional lawyer but it's hard to see how such a restriction could pass constitutional muster. For the FCC to succeed it would have to ignore multiple Supreme Court decisions knocking down congressional attempts at censoring the Internet. (See, for example, material on the Communications Decency Act.) The FCC is currently in court over its attempts to censor broadcast TV. Any restriction like this new one would be instantly in court and, if history is any precedent, tossed out.

Both Wendy and Scott are colleagues: Scott at Harvard itself and the Wendy at the Berkman Center. Both make clear, as do I, that our opinions are our own and not those of our respective institutions.

Speaking only for myself, I strongly urge readers who care about the Net — and wish to keep it free-as-in-freedom, free-as-in-speech and free-as-in-markets — to submit your own thoughts ditectly to the FCC through its Electroinic Comment Filing System. And to share them with the rest of us below.