by Seth Johnson
The Question to Ask About the WCIT
General Rhetorical Thrust of the US Delegation’s Recommendations
Failing the Internet: What the US Delegation’s Recommendations Leave Out
Protecting the Internet: Getting It Right First
The key question that Internet advocates must ask as the ITU updates its International Telecommunications Regulations (ITRs) at the World Conference on International Telecommunications (WCIT) this week is: What is being legitimized by these proceedings?
The discussion surrounding the conference has been largely couched in terms of a contention between oversight of the Internet by various multistakeholder organizations more commonly associated with it, such as ISOC, IETF, ICANN and the regional registries, versus oversight by governments. Troubling prospects are raised of binding regulations being established for the Internet through an international body backed by global governments, and of repressive governments gaining cover for their efforts to bottle up the medium under the sanction of such a body.
The discussion of these issues, however, is a step removed from the more basic, far more critical consideration of the frame that the ITU’s proceeding will establish — what it will legitimize. We can gain much more insight when we recognize that the establishing of an international forum like this is not only of use for setting rules that will be mutually honored as binding among the participants, but also for the simple endorsing of a frame, of a set of terms and definitions regarding a subject area to which the participants are subscribing on behalf of their nations.
Focusing on this question only requires examining the text that’s actually being proposed for the WCIT, and because many of the recommendations of the WCIT participants are now a matter of the public record, as a result of the partial record originally provided by WCITLeaks, and more recently the apparently nearly-current-and-complete archive made available by .NXT, we can now address this frame, without the distraction of the debate over contentious questions to which we had been limited before this past week.
Among these submissions is the following text from the US Delegation regarding competition, originally proposed publicly by ISOC. What makes it notable is the way it presents very generalized language regarding how to encourage development of communications infrastructure “inter alia through the fostering of competitive and liberalized telecommunication markets:”
Administrations*shall endeavour to providesufficient telecommunication facilities to meet the requirements of anddemand for international telecommunication services
This recommendation can be said to represent the most significant outcome we can expect from the WCIT conference. It is of critical importance 1) because of its failure to acknowledge how the drive to develop infrastructure comes out of the way the basic foundation of the Internet works; and 2) because its generality comports perfectly well with the failed model of competition manifested by the telecommunications regime in the US.
Below we offer some comments on the recommendations of the US Delegation, including its proposed update to Resolution 4 on “The Changing Telecommunication Environment,” to illustrate how the dynamism of the basic foundation of the Internet is not reflected in the frame presented by these contributions. As such, the ITRs as envisioned by the US will only serve to legitimize the failed concept of competition promoted by the telecommunications incumbents in the US.
The US Delegation’s contributions project many of the same concerns we see expressed in the terms of the debate regarding the import of the ITU’s project. Their recommendations place emphasis on resisting the prospects of international regulation, of increasing control over governance of the Internet, and of broadening the scope of the ITRs “to empower any censorship of content or impede the free flow of information and ideas.”1 They call for high-level principles, minimal or limited changes to the ITRs, an emphasis on their voluntary nature, and recognition of “the sovereign right of Member States to regulate their telecommunications sectors,” recommending that the scope of the ITRs apply only to “recognized operating agencies,” and that no changes be made in the definitions of telecommunications and international telecommunications service.2 The US Delegation places its recommendations within the context of the contrast between the “state-controlled companies providing basic fixed service” or “monopoly carriers” that existed at the time of the last revision of the ITRs, and the circumstances at present, with carriers conveying traffic under commercial arrangements within “competitive environments” or “liberalized markets with multiple companies competing across a wide range of services and technologies.”3
More importantly, while the US projects concern for the questions presently under debate regarding international regulation, censorship and control by an inter-governmental body, the US also calls for attention to be placed on “the critical issue of promoting development and investment in telecommunications infrastructure in all countries.”4 The frame that the US presents in support of this goal is the key development at this juncture.
While it emphasizes development of infrastructure, the US does so without recognizing the key distinction between the US approach and that of other locales, where access to the physical layer is commonly recognized as a pertinent characteristic of the competitive framework, by which diverse competing providers may readily and freely enter the market and interconnect, thereby expanding the creative potential of the Internet platform — and where this access to physical infrastructure already installed across the public right of way is not characterized as a governmental regulatory taking, as it often is in the US.
The US Delegation’s revisions emphasize stability and predictability and fair competition to attract private sector investment in infrastructure, as well as flexibility for innovation and development of new services, and technology neutrality in the ITRs.5 But they do not address how the foundation of the Internet drives demand for infrastructure through the growth of a free market of independent, interoperating providers who have ready access across the right of way.6 And while they note that “benefits” derive from “all market players [having] the flexibility to innovate and develop new services in competitive markets, in response to consumer demand,” nowhere do they identify how end user innovation drives demand.
On Censorship: The US delegation couples its resistance to increasing control and its promotion of “an enabling environment for investment and innovation,” with opposition to censorship or blocking of the “free flow” and “global exchange of information and ideas.” This stance in support of openness, however, does not necessarily apply to the provision of Internet connectivity by competing providers readily entering the field at the physical layer. While laudable in itself, the critical feature of this stance in opposition to censorship is that it can also divert attention from the relationship the ITU has to providers of physical layer infrastructure. Opposition to censorship in a transition to endorsing the ITU should not be allowed to substitute for directly addressing the implications of ITU oversight specifically in relation to the physical layer.
From the standpoint of binding rules that might be enacted by an inter-governmental body, limiting the scope of rules so they do not empower censorship has an appealing cast. But from the standpoint of considering the frame being legitimized as we endorse the oversight of a body defined in this manner, this position based solely on generalized support for liberalized competition while limiting the scope of the ITRs so they do not support censorship does not address the basis of the Internet on an open foundation that allows independent providers to freely enable Internet users to transfer information among themselves.
Furthermore, the telecommunications regime in the US is presently dominated by incumbents that claim regulating the infrastructure they have deployed across the public right of way raises the question of interference with fundamental free speech rights. A frame in the ITRs that emphasizes free flow of information and ideas is actually fully in accord with that conception and could help play a role in legitimizing it.
Neither, for that matter, will an opposition to empowering censorship in the ITRs prevent censorship by those nations that choose to impose it. Particular nations can always censor and restrict the flow of information by regulating telecommunications locally. Of course, they might also attempt to employ the ITU to establish a basis to achieve that at the international level. The Purpose and Scope of the ITRs already provide the ITU with a scope that makes this at least a possibility7, not the least because it reaches to the level of providers of physical infrastructure, though this sort of development would require accommodation and cooperation by participating Member States, in cooperation with their international telecommunications providers.
However, the fact of the matter is that circumstances that obviate censorship and that promote free communication of information ultimately derive from legal regimes within particular national traditions that place a priority on such principles. A set of rules articulated by an international telecommunications body, founded in the actions of Member State executive branch functionaries, even when coupled with open participation by volunteers, cannot provide the fundamental kind of grounding required to support principles that perpetuate free governments.
On ICTs and Convergence: A similar point applies to the question of the ITU’s relationship to the Internet in terms of convergence. Various materials and proceedings of the ITU project the notion that it should expand its scope beyond past conceptions of telecommunications in light of the trend toward convergence of information and communications technologies. The outcome products for the previous steps in the ITU’s progress toward the WCIT conference are replete with references conflating telecommunications with information and communications technologies (ICTs) and extolling the glorious prospects of global advances that will be brought on by convergence and the wonders of the Internet, including the Guadalajara Resolutions Nos. 71 and 139, the Geneva and Tunis Declarations for the World Summit for the Information Society, and the Hyderabad World Telecommunications Development Conference Declaration. (The ITU/UNESCO Broadband Commission Platform for Progress and State of Broadband Reports are more attentive to distinguishing these categories.)
One wonders how we should understand the US Delegation’s recommendations urging that the scope of the ITRs be limited, given this fact regarding the background of the ITU’s proceedings leading up to the WCIT.
One could oppose the proposition that the ITU’s scope should be expanded in the way its previous proceedings envision, by making an argument consistent with the US’s resistance to enabling censorship: this argument would observe that this scope would give the ITU a capacity to regulate content.
However, as already noted, a focus on resisting censorship diverts attention from addressing the real foundation of the Internet’s dynamism, and this is the key matter at stake as we contemplate the terms under which we might endorse ITU oversight internationally. That can only be secured by making sure the forum is not empowered with a frame that lets its provenance over the activities of providers of international connectivity be asserted in such a way that independent, private network providers are not readily able to enter the field and interoperate.
On Technology Neutrality: The US Delegation supports the following definitions of “telecommunication” and “international telecommunication service” in the ITRs, stating that retaining them will make the ITRs a “flexible and enduring treaty” since they are technology neutral:
Telecommunication: Any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.
International telecommunication service: The offering of a telecommunication capability between telecommunication offices or stations of any nature that are in or belong to different countries.
These are definitions of very broad scope. For our purposes here, it is important to note that while a principle of technology neutrality in crafting definitions assures their stability and flexibility by eliminating unnecessary specificity or presuppositions, it can easily end up serving, as it does here, to support broad definitions that overlook essential distinctions. This language doesn’t narrow the scope of telecommunications to premises that might have been seen to apply within, or to define its scope within, regulatory frameworks of the past.
In relation to the question of how development of infrastructure is promoted, the failure to acknowledge or raise the consideration of physical facilities works in concert with the frame laid out generally through the rest of the US Delegation’s recommendations, to support the legitimization of a deficient concept of the kind of competition the foundation of the Internet is built upon.
In relation to the question of how wide the scope of the term telecommunications reaches, this definition is fully consistent with the expansive references to convergence and ICTs in the Guadalajara Resolutions, the Geneva and Tunis WSIS Declarations, and the Hyderabad WTDC Road Map. While the US projects a stance of resistance to expansion of the ITU’s scope and to the prospects of censorship, increasing control over Internet governance and an international regulatory regime, its appeal here to technology neutrality in support of the stability of these definitions actually works against limiting the ITU from assuming the broad scope of the agenda already declared through previous proceedings.
What is important is what deficiencies there may be in the frame that is being instituted while the US endorses the ITU’s forum — not the appeals within the US Delegation’s recommendations to resisting censorship and control or binding inter-governmental regulation. And the same technology neutral language that is designed to support the stability and flexibility of the ITRs, also allows rules to be legitimized that overlook the fundamental basis of the Internet’s dynamism in competitive access to the physical layer — the same basis that expands demand to develop physical infrastructure.
Resolution 4: “The Changing Telecommunication Environment”
We are concerned with whether the WCIT will produce a frame that will allow the legitimizing of a conception of the telecommunications regime that does not work, and above we have elaborated how this concern is borne out in the US Delegation’s inputs for the ITRs. Their recommendation to revise Resolution 4 on “The Changing Telecommunication Environment,” varies from this pattern slightly. It lists specific courses of action for the ITU and its Member States which are phrased in terms that could be read as allowing for approaches that are based on policy frameworks that provide ready access across the right of way.8 And of the supporting documents they cite, the ITU/UNESCO Broadband Commission reports are notable for referencing this consideration explicitly, including a graphic of the OSI stack that designates the lower layers as regulatory, the higher ones as competitive, and the transport layer as indefinite.9
However, Resolution 4 places these recommendations within a frame that fails to incorporate recognition of the dynamic by which Internet providers and end user innovation spur demand for infrastructure development, reflecting the frame the US Delegation promulgates for the ITRs as such. We see the same pattern of a broadly-stated endorsement of competition without references that guard against overlooking the Internet’s foundation in competitive access at the physical layer. We see the same references to the importance of infrastructure development, policies for stability, predictability and fair competition, and fostering “an enabling environment for investment in telecommunications infrastructure.” These references to an “enabling environment” reflect similar terminology in the outcome documents from the ITU’s previous proceedings leading up to the WCIT. All of this language is fully consistent with the conception of competition the US incumbents project.
Avoiding Distraction: While the discourse is consumed by debates surrounding the threat of an international regulatory regime directed by governments taking oversight of the Internet away from the open and participatory multistakeholder organizations that have long served as its stewards, the key question that illuminates how we should approach the implications of the WCIT is about what the terms within the ITRs that define the ITU’s relation to the Internet will actually say. When we examine the position of the US, we see recommendations to update the ITRs with language that will legitimize a broadly-stated conception of competition in relation to development of infrastructure that places the fundamental basis of the Internet’s vitality at risk. This is a representation of competition in the field of telecommunications that easily accommodates the conception of the incumbents in the United States, where the prospect of competition at the physical layer is severely limited and where, as Paul Budde says, Internet infrastructure and content are treated as combined.
Thus, while we contemplate the implications of the ITU’s moves to institute themselves in relation to the Internet, the most significant and immediate practical concern we should have on the WCIT is about legitimation of the position of privileged providers by the language the US is actually proposing for the ITU’s core rules. Even without being mandatory, so long as the incumbents and the administration go along with each other, they can rationalize what passes for competition here in the US as fitting the generalized language of liberalized competition they’re espousing for the ITRs.
We certainly don’t want our executive branch to endorse an international forum that will legitimize this conception and let it stand as what we rely on to represent what fosters the development of the Internet and the rollout of infrastructure.
The Moment is Now: While Internet advocates must continue to engage in terms of assuring that a body that develops international rules among governments does not overrule, supplant or act to the detriment of already recognized, voluntary multistakeholder bodies, the important question is upon us at this moment: what is the frame that will be legitimized by those who are taking part in the ITU’s process, as they act to establish such a new international body?
The established multistakeholder organizations long associated with the Internet’s oversight are its stewards in a way that the US is not; and other nations have other experiences related to telecommunications policies that build the Internet on a foundation that allows competing providers to readily enter the field and freely interoperate and connect their end users to the world. Stakeholders in the broadest sense — everyone who wishes to communicate by means of this same platform — have the responsibility at this juncture to present other examples besides what the US experience represents, and to help clarify to the participants in the WCIT how they should best assure this international governmental body does not interfere with our ability to participate in building the power of the Internet.
If we are to proceed with the endorsement of any such forum constituted of delegates empowered to assert claims over the Internet on behalf of their local governments, we should certainly not do so unless there is explicit recognition in its frame of the role that a foundation based on free and independent providers readily connecting the world plays in driving the Internet’s growth.
“As a decentralized network of networks, the Internet has achieved global interconnection without the development of any international regulatory regime. The development of such a formal regulatory regime could risk undermining its growth.”
[. . .]
“[T]he United States will not support proposals that would increase the exercise of control over Internet governance or content. The United States will oppose efforts to broaden the scope of the ITRs to empower any censorship of content or impede the free flow of information and ideas.”
“The United States believes the changes that have occurred in the global communications sector since the 1988 World Administrative Telegraph and Telephone Conference (WATTC‑88) in Melbourne, Australia, can be addressed and accommodated with limited revisions to the ITRs. It is important that the ITRs continue to reflect high-level principles that are sufficiently flexible to accommodate existing and future technological and market changes.
[. . .]
“The success of international communications since 1988 indicates that the ITRs have provided a sound contribution to innovation and growth. As a result, most provisions of the ITRs require minimal, if any, changes. The exception is Article 6, which addresses the exchange of international telecommunications traffic. Article 6 requires substantial revisions to reflect today’s communications environment and to accommodate future technological and market changes.”
[. . .]
“Therefore, the United States proposes the following:
· Minimal changes to the preamble of the ITRs;
· Alignment of the definitions in the ITRs with those in the ITU Constitution and Convention, including no change to the definitions of telecommunications and international telecommunications service;
· Maintaining the voluntary nature of compliance with ITU-T Recommendations;
· Continuing to apply the ITRs only to recognized operating agencies or RoAs; i.e., the ITRs’ scope should not be expanded to address other operating agencies that are not involved in the provision of authorized or licensed international telecommunications services to the public; and
· Revisions of Article 6 to affirm the role played by market competition and commercially negotiated agreements for exchanging international telecommunication traffic.
“[T]he United States also recognizes the sovereign right of each country to regulate its own telecommunications sector. Moreover, the United States opposes adding provisions to the ITRs that can be interpreted to restrict the choices available to governments in regulating their national telecommunications regimes.”
“The current ITRs reflect a communications market where most traffic was exchanged between monopoly carriers and where the traffic was fixed telephony, fixed data, and telegraph. Today, most traffic is exchanged under commercial arrangements between carriers operating in competitive environments where there are multiple competing services.”
“The United States’ proposals, in both the first tranche and this second tranche, reflect the dramatic changes in the telecommunications sector since the International Telecommunication Regulations (ITRs) were last revised in 1988, from a sector dominated by state-controlled companies providing basic fixed service to liberalized markets with multiple companies competing across a wide range of services and technologies. The United States’ proposals seek to build on the success of those changes by focusing on market-based solutions and approaches instead of global regulation, and by highlighting the importance of creating an enabling environment of further liberalization and competition that encourages private sector investment.”
“In addition to proposals removing obsolete provisions and aligning the ITR text with the Constitution and Convention, the United States’ proposals address the critical issue of promoting development and investment in telecommunications infrastructure in all countries. There is a factually documented positive connection between well-developed telecommunications networks, which provide widespread access to international telecommunications services, and economic growth and societal benefit. Thus, it is appropriate that the WCIT promote high level policies for increasing access to telecommunications around the world.
“The United States recognizes the role that the ITRs have played in promoting the growth of telecommunications networks. Meanwhile, the United States also recognizes the sovereign right of each country to regulate its own telecommunications sector. Moreover, the United States opposes adding provisions to the ITRs that can be interpreted to restrict the choices available to governments in regulating their national telecommunications regimes. If the ITRs are to promote telecommunications development in an enduring manner, they must remain flexible enough to allow for rapid technological change and the evolution of new business models and consumer-oriented services.”
“As recognized by the World Summit on the Information Society (WSIS), policies that create regulatory stability and predictability and ensure fair competition at all levels are necessary to attract private sector investment in telecommunications infrastructure. The United States’ proposals highlight the importance of establishing an enabling environment for investment and innovation, and ensuring that international telecommunications networks remain open to the global exchange of information and ideas. Specifically, the United States proposes to revise Resolution 4, “The Changing Telecommunication Environment” to highlight the importance of development, competition, and private sector investment in telecommunications infrastructure.”
[. . .]
“The United States believes that governments, consumers, citizens, and society benefit significantly when all market players have the flexibility to innovate and develop new services in competitive markets, in response to consumer demand. Telecommunications markets that are structured in this way attract investment, fuel technological advancement, and are efficient in delivering services to consumers. For this reason, the United States does not support proposals to amend the ITRs that would force a change to the operation of competitive markets.”
“a) that the Geneva Declaration of Principles adopted by WSIS recognized that policies creating a favorable climate for stability, predictability, and fair competition at all levels should be developed and implemented in a manner that attracts more private investment in telecommunications infrastructure;”
a) These Regulations establish general principles which relate to the provision and operation of international telecommunication services offered to the public as well as to the underlying international telecommunication transport means used to provide such services. They also set rules applicable to administrations*.
b) These Regulations recognize in Article 9 the right of Members to allow special arrangements.
The US’s proposed update to Resolution 4 calls for the ITU to open telecommunications markets to competition, establish a universal service program to support infrastructure investment, encourage efficient and innovative mobile broadband practices for new market entrants, enable government programs to stimulate demand for and investment in telecommunications, and provide policy leadership on investment
It encourages Member States to promote affordable access through regulatory environments that are fair, transparent, stable, predictable and non-discriminatory, that promote competition and technological and service innovation, and that encourage private investment incentives, and to share best practices regarding regulatory regimes that liberalize markets, promote competition and stimulate investments.
9) The Platform for Progress report recognizes the physical network as a distinct layer from the services and functions that travel across it, encourages removal of pricing and other barriers to access to networks and infrastructure as far as possible, recommends facilitating sharing of infrastructure, and calls for “promoting of facilities-based competition [. . .] with policies encouraging service providers to offer access on fair market terms.”
The State of Broadband 2012 report distinguishes three infrastructure layers: the passive layer, the active infrastructure layer, and the service layer. It is more focused on articulating how return on investment works in this framework, acknowledging sharing of infrastructure as an option among others and assigning “the intelligence of the network” to the “active infrastructure” layer. It observes that open access is critical in the case of publicly-funded national broadband networks, stating that it is needed when “economic bottlenecks [are] preventing competitive supply.” It cites “an emerging regulatory consensus” supporting open access to national broadband infrastructure and warns against state aid distorting the market, where subsidies for infrastructure development are linked to open access mandates.