Recognizing WSIS Impacts

Unless it acknowledges key characteristics of the Internet, the World Summit on the Information Society will easily undermine it

To State Dept: Impact Analysis (WSIS Performance Measures)

(Click here for blog post version of this commentary)

———- Forwarded message ———-
From: Seth Johnson
Date: Tue, Mar 25, 2014 at 9:55 PM
Subject: WTDC/Plenipot: 4) Impact Analysis: Understanding Impacts on the Internet (was: Re: Critical Notes for WTDC Prep)
To: “ITAC@LMLIST.STATE.GOV” , “Zoller, Julie N” , Paul Najarian

(also WSIS+10 and Strategic Plan and other areas leading up to the Plenipot and the UN’s processes next year)

Hello Julie, Paul, ITAC, and all,

The following is the final component of the analysis of the ITU’s resolutions related to the upcoming WTDC that I have developed for ITAC, designed to identify revisions needed to assure that the WSIS project has an ability to recognize when its initiatives will affect the Internet. While performance measures come under the topic of impact analysis, to be addressed at the WTDC within ITU-D Study Group 1′s areas of concern, this part affects future phases and does not call for revisions in WTDC resolutions, but rather in the definitions for the ITU’s WSIS indicators, as well as various other related elements of the overall context.

The problems I show within the measures by which the ITU is assessing the success of the WSIS project reveal that the project’s effects on the Internet are systemic, built into the basic premises served by the project. As a result, the concern that the project will undermine the Internet cannot be addressed by a partial or incremental approach, but by explicitly addressing the question.

This is long, and will be posted in blog form shortly, with internal links. For now, you might read the Introduction and then the Recommendations/Conclusions at the end for the quickest precis. Next might be to jump to the Implications heading, where I apply the analysis to address implications for Internet Governance and the domestic FCC/”IP Transition” contexts.

Then I suppose it’s most interesting to go up and examine the relationship to the Technical Barriers to Trade Agreement and how the Conformance and Interoperability and Broadband deployment study questions relate.

Seth

Introduction:

In the first week of December the World Telecommunications Indicators Symposium (WTIS) met in Mexico City and endorsed the latest set of revisions to the indicators by which the ITU will measure the progress of the WSIS project. The Experts Group on Telecommunications Indicators (EGTI) met just prior to the WTIS to prepare inputs based on their discussions in the preceding months.

The indicators adopted at these meetings show how the WSIS project as a whole will have critical effects on key characteristics of the Internet. They fail to distinguish the Internet from other types of IP-based networks, or to distinguish the open Internet from specialized services. They are also based on a set of definitions for the telecommunications sector that does not clearly provide for legal traditions such as common carrier that assure competitive access by autonomous Internet providers to physical layer infrastructure.

The following presents the usage of the term Internet in the ITU’s measures and offers comments placing the analysis in the broader context, then offers a set of recommendations. The broader context includes factors such as the WTO’s Technical Barriers to Trade Agreement, proposals for study questions on broadband and conformance and interoperability testing being pursued for the WTDC, and the notion of convergence that underlies the WSIS project. It also includes various proceedings presently underway, including the “IP Transition” at the FCC in the United States, discussions in different fora on the nature and scope of enhanced cooperation in the WSIS project and on the role of governments in a number of Internet-related public policy areas, as well as on international Internet governance in general, the WSIS+10 review of status, the development of the ITU’s Strategic Plan for the next 4-year cycle, and ITU-D’s processes for promoting ICT development and investment in infrastructure as framed by WTDC-related ITU resolutions.

Definitions/Usage of Terms

The ITU’s WSIS Indicators

The EGTI and WTIS resolved to update the ITU’s core indicators to conform to the definitions in the ITU’s 2011 Handbook for the Collection of Administrative Data on Telecommunications/ICT (http://www.itu.int/pub/D-IND-ITC_IND_HBK-2011).

These indicators include:

- Fixed telephone subscriptions
- Mobile-cellular telephone subscriptions
- Fixed/wired broadband Internet subscriptions
- Wireless broadband subscriptions
- International Internet bandwidth
- Percentage of the population covered by at least a 3G mobile network
- Fixed broadband Internet prices
- Mobile cellular telephone prepaid prices

The following were deleted:

- Fixed internet subscribers (which included dialup and other fixed broadband)
- Percentage of localities with public Internet access centres (PIACs)

The following indicators were added to the above:

- Mobile broadband Internet prices
- TV broadcasting subscriptions

Some of these core indicators also play a part in the ITU’s ICT Development Index and Revenue and Investment indicators, key elements of the ITU’s annual report, Measuring the Information Society.

Recent work by the EGTI and the ITU has focused on developing indicators for mobile broadband prices and backbone transmission networks. This work has translated into the addition of “mobile broadband Internet prices” to the core indicators (inserting the term Internet with the present permutation) and contributes to the “international Internet bandwidth” core indicator.

I have attached the relevant parts of these sets of definitions in concise form.

ITU Definitions: Broad Usage of the Term Internet

All of the subcategories that make up the ITU’s definitions for fixed/wired and wireless broadband could just as well represent networks providing specialized services as open Internet. But the ITU Handbook’s definitions for the fixed and wireless broadband subcategories — cable, DSL, FTTH/B and “other” for wired, and satellite, terrestrial fixed, and active-mobile for wireless — simply present them with reference to the term Internet.

The ITU’s definitions for the international Internet bandwidth measure, and for both fixed and mobile broadband Internet prices, also reference the term Internet while not distinctly addressing specialized services. A correlative measure in the ITU Handbook for domestic Internet bandwidth, not as yet included in the core indicators, also shows this pattern. No distinction is made between the Internet and particular networks that may shape packet transmissions to support specialized functions within themselves.

Both the ICT Development Index and the Revenue and Investment indicators incorporate the fixed/wired and wireless broadband core indicators, thereby incorporating the same problem.

Recent work by the EGTI and the ITU has focused on developing measures for mobile broadband prices and backbone transmission networks. The status of the interactive backbone map project was reported at the WTIS. Just as for the core indicators and the ICT development and revenue and investment measures, these analyses of fixed and wireless broadband prices or domestic and international backbone capacity do not incorporate a recognition of a distinction between open Internet and specialized services.

While ITU’s resolutions for the WSIS project more generally make numerous references to the key terms IP-based Networks, Internet and Next-Generation Networks (NGNs) (though without actually distinguishing the terms clearly) the indicators the ITU is using to measure progress for the WSIS project, as well as the analyses built upon these indicators in their annual Measuring the Information Society report, do not provide for any distinction among these types of networks at all. This is a clear indication that the WSIS project as it is currently designed will allow managed services to supplant and be confused with the open Internet — exactly in accord with the FCC’s projections in its “Further Inquiry into Two Under-developed Issues in the Open Internet Proceeding” (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1667A1.pdf). Also see the Joint Statement on Advancing Open Internet Policy Through Analysis Distinguishing Open Internet from Specialized Network Services (http://internetdistinction.com/statement/).

ISIC Definitions: Internet Associated with Vertically Integrated Telecommunications Contexts

While the core indicators use the term Internet in a broad way that fails to recognize the difference between open Internet and networks offering specialized services, the ITU’s definitions of its revenue and investment measures use the term in a more particular way as it specifies industry categories to be included or excluded. The revenue and investment measures are based on the definitions for the telecommunications sector in the International Standard Industrial Classification (ISIC), Revision 4 (http://unstats.un.org/unsd/cr/registry/regcs.asp?Cl=27&Lg=1&Co=61), which is used as a basis for the WTO’s Technical Barriers to Trade agreement, described below.

The ISIC breaks telecommunications into four categories: wired, wireless, satellite and other. For wired, the term Internet is referenced solely in connection with the category of “provision of Internet access by the operator of the wired infrastructure,” while a separate category provides for operators “purchasing access and network capacity from owners and operators of networks and providing telecommunications services using this capacity.” The former category clearly represents a vertically integrated telecommunications context. The latter category represents access to physical infrastructure but not necessarily infrastructure subject to a policy context assuring competitive access by independent Internet providers. It also, in contrast with the former category, makes no reference to the term Internet. The wireless and satellite categories in the ISIC definition of the telecommunications sector show a similar pattern.

Incumbents who are allowed by the policy context to treat the physical layer infrastructure largely as vertically integrated assets within their own processes for producing higher level information services might well lease access to that infrastructure to other providers without a policy mandating that they do so. However, in the experience of the US, where this type of policy context has been established, we have not seen this practice arise on a basis that assures equitable access and rates.

For nearly the entire period since the initiation of the WSIS project — which might be designated by the 2003 Geneva and 2005 Tunis WSIS events — the United States’ application of its Communications Act has been framed by a series of findings, issued by the FCC in 2002 for cable and in 2004-2005 for other modalities, that not only deregulated Internet service but also the physical infrastructure over which telecommunications transmissions are carried. These findings neutralized the legal foundations of the Communications Act in public franchise law and common carrier obligations which up until then had assured competitive access to the physical layer by independent, autonomous Internet providers.

The FCC’s 2005 Wireline Order (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-150A1.pdf) stated the incumbents were free to lease their lines (see paragraphs 86-95), but in fact thousands of autonomous, competing ISPs closed operations as a result of these findings, thereby eliminating the open and neutral Internet platform that had arisen among them up until then as a natural reflection of their need to interoperate with each other. The FCC is currently positioned to continue to apply this same policy framework within the context of the WSIS initiatives that these indicators are intended to measure, as well as in the context of the TBT agreement, as the US pursues its “IP Transition.”

The ISIC also uses the term Internet in a set of diverse categories combined under the “other” heading, including Internet access over networks between the client and the ISP not owned or controlled by the ISP (such as dial-up), telephone and Internet access in facilities open to the public, telecommunications services provided over telecommunications connections, such as VoIP and telecommunications resellers, and specialized applications such as satellite tracking and telemetry. These categories are distinguished from the main wired, wireless and satellite telecommunications categories.

Conformance and Interoperability and Promoting Broadband: the Role of the Technical Barriers to Trade Agreement

The ISIC definitions show the relationship of the WSIS project and WTDC initiatives to the Technical Barriers to Trade agreement (http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm). The relevance of the Technical Barriers to Trade agreement can be seen particularly in the work in the ITU-D sector on “Conformance and Interoperability” assessment, including a Study Question proposed by the US on “Conformance Testing,” which reflects the provisions of the TBT agreement calling for WTO Member States to uphold harmonized conditions for international trade in part through conformance testing.

Conformance and interoperability testing might become a basis for enabling government or privileged providers to promote new types of networks by appealing to intergovernmental standards, without distinguishing them from the Internet or recognizing the tradeoffs these types of networks bring as compared to open internetworking between networks. This could be a problem if these standards work against connectivity in the form the Internet makes possible, or if their promotion allows something different to be called Internet.

Study Question 25 on promoting broadband emphasizes IMT, the ITU’s term for the 3G/4G wireless managed services framework, and can also be related to the TBT agreement. Both the ITU’s notion of broadband in this study question and the use of the term Internet in the ISIC’s definition of the telecommunications sector underlying the TBT agreement suggest a move to approaches to services and infrastructure that reflect the US’s emphasis on a vertically integrated telecommunications environment while overlooking other approaches such as those based on public franchise law and common carrier obligations.

The TBT agreement aims at ensuring that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to international trade (http://www.who.int/mta/Doc8.doc). Under the TBT, technical regulations may only be developed for legitimate objectives (such as security, preventing deceptive practices, protecting health and safety or protecting the environment). Members are encouraged to base their technical regulations, standards, and conformity assessment procedures on international standards and to develop conformity assessment procedures to generate confidence that products conform with applicable technical regulations or standards. Members are called to accept each other’s technical regulations as equivalent until international harmonization is achieved and to enter into mutual recognition agreements (MRAs) for the acceptance of each other’s assessment results. The TBT Agreement also authorizes special and differential treatment for developing countries based on a number of considerations (http://www.ustr.gov/sites/default/files/2013%20TBT.pdf).

When we consider the combination of the broad use of the term Internet in the ITU’s WSIS indicators with the more particular use of the term in the ISIC definitions for the telecommunications sector, we recognize that these measures represent a WSIS project whose structure fits readily into an international policy framework to implement a more specialized service version of connectivity, in contexts that do not necessarily support competition at the physical layer. We also see that the TBT agreement is situated to potentially play a part in enforcing this arrangement.

OECD Recommendations: Introducing De-convergence

The EGTI endorsed a set of recommendations by the OECD regarding what to include or exclude in the Revenue and Investment measures in light of general scheme governing the ISIC industry categories. The implications of these recommendations are notable in relation to the notion of convergence that undergirds the WSIS project. The addition of the “TV broadcasting subscriptions” measure to the core indicators at the WTIS is also significant in this connection.

OECD Recommendations:

The OECD recommendations note that discrepancies in data reporting based on questions regarding what should be included under the term telecommunications and what should not will continue to be a problem given the phenomenon of convergence. They offer guidance by applying the principle by which the ISIC differentiates the telecommunications sector — as made up of those entities that transmit information while not being involved in content creation. The ISIC distinguishes the telecommunications sector from other industrial categories under the broader heading of “information and communications” on this basis (http://unstats.un.org/unsd/cr/registry/regcs.asp?Cl=27&Lg=1&Co=J).

The OECD explains that in the case of a cable operator that produces TV content, revenues from sales of rights to the content should be excluded, while revenues from subscriptions to cable programming should be included. In further guidelines they indicate that free-to-air TV relates to content creation from traditional broadcasters and should therefore be excluded, but IPTV should be included because it deals with distribution by telecommunication operators. Pay digital terrestrial television channels relate mainly to content creation and should be excluded, while cable TV and satellite should be included where their activity relates to Internet or multichannel distribution, but not where they are producing TV content.

To identify investments within these industrial categories, they recommend a formula including expenditures on fixed telecommunications network assets (tangible and intangible), less assets that have been disposed of. They include research and development, and exclude operating license or radio spectrum fees, since these are often lump sums that would disrupt the consistency of time series analyses across countries and businesses.

For revenues, they recommend one measure for all telecommunications and a separate one for mobile telecommunications. Telecommunications revenues include retail fixed-telephone, mobile-cellular, Internet, and data services, while excluding revenues from content creation. This is to include transmission of TV signals, and to exclude wholesale sources such as interconnection. Mobile revenues include revenues from all voice, SMS and data, including value added services like premium SMS, while excluding wholesale revenues from termination, origination, and transit rates or inbound roaming.

In this way, the OECD recommendations for the revenue and investments measures use the ISIC definition to distinguish the telecommunications sector from other categories in the “information and communications” sector, for broadcasting and programming, print media and software publishing, movie, TV, sound and music publishing, computer programming and consultancy, and information services such as data processing and web portals.

These definitions of the revenue and investment measures are notable because so much of the motivation for the WSIS project is based on the notion of convergence. Despite the WSIS project’s appeal to convergence as a general trend bringing about dramatic changes, warranting a call for stakeholder participation in the development of a governance system that appreciates the significance of the changes, in fact the use of the ISIC definitions in the ITU’s measures represents a form of “de-convergence” built into the WSIS project. It creates a schema that distinguishes telecommunications from content creation in general and a number of other “information and communications” industry categories. The implications of this de-convergence have yet to be acknowledged in the WSIS proceedings.

Convergence in the WSIS Project

The notion of convergence that governs the WSIS project is also notable, since it also implies networks that uphold policies that might not be readily applied in the open Internet context. We see in the ITU’s WSIS measures a transition from a phase of the WSIS project wherein convergence has been generally appealed to as a historical force the best development of which the project seeks to foster, to a phase in which systems to support a particular form of de-convergence are implied in the basic terms according to which the WSIS project measures its success.

It should be noted that not all functions can be converged with an Internet comprised of autonomous routers using the Internet Protocol to interoperate. Perhaps the most noted example is quality of service (QOS) in the form of prioritizing particular application transmissions. This can generally be done best within individual networks or across sets of contracting networks, since independent networks cannot be expected to apply the same priority to packets as is applied within the network where they originated and where they were designated for specialized treatment. Other specialized services may also apply policies that are similarly suited to intranet contexts rather than networks of autonomous interoperating networks.

Numerous documents related to the WSIS project incorporate references to convergence, using the term in a wide variety of senses. Perhaps the instance that uses the term in a way that most clearly designates the type of network foreseen as the outcome of convergence, is the 2013 WCIT’s background document on convergence, at http://www.itu.int/en/wcit-12/Documents/WCIT-background-brief3.pdf:

“There is no single definition of convergence. However, a key innovation is the transformation from circuit-based telecommunication networks to packet-based ones using the Internet protocol (IP): so-called next-generation networks, or NGN. The “vertical” structure of independent networks is evolving into a “horizontal” structure based on IP that can deliver many kinds of content through a single platform. This has profound implications for the market, regulators, and ultimately the expansion of communications to people everywhere.”

This conception of convergence is notable in at least two ways: in its simple identification of IP packet-based networks with next-generation networks, and in its contrasting of a single IP-based platform against a network made up of independent networks, treated as a previous stage of evolution. This presentation is probably the most direct indication that may be found in the WSIS documents of an outcome in mind that is not a network of networks, but a single platform in which discrete individual providers might take part, but in which they would not be fully autonomous and competitive networks interoperating neutrally. In referring to the packet-based networks that are to replace legacy circuit-based telecommunications networks as “next-generation networks” or “IP-based networks,” this presentation glosses over the distinction between the Internet as a network of networks using IP packet transmissions to interoperate with each other, and other types of IP-based networks that may implement specialized treatment of packets by instituting a common policy across routers under their control.

Instead WSIS documents and notably the ITU’s resolutions tend to use the term “ICTs” and present many signs of a trajectory toward establishing a next-generation network framework like that described above, which would support ICT applications related to a number of policy areas.

Plenipotentiary Resolution 31, from the 2002 Marrakesh conference, directly identifies the concept of convergence with the term ICTs, referencing “the convergence of telecommunication and computer technologies and services, referred to as information and communication technologies (ICT)” as “an agent of change for the information age.” Plenipotentiary Resolution 137, from the 2010 Guadalajara conference, promotes the deployment of next-generation networks in developing countries. Similar references to convergence and ICTs can be found in Plenipotentiary Resolution 71, the ITU’s Strategic Plan for 2012-2015, and in Plenipotentiary Resolution 139, on telecommunications/ICTs to bridge the digital divide. The Geneva and Tunis WSIS outcome documents and the 2010 WTDC’s Hyderabad Declaration also make extensive references to ICTs in this sense.

The Broadband Commission’s 2012 State of Broadband Report enumerates several types of convergence consistent with the notion of new networks supporting ICT Applications (http://www.broadbandcommission.org/Documents/bb-annualreport2012.pdf). These include convergence of ICT policy with various policy areas such as energy, health, education and the climate, a notion of an “economical balance” among converging services, positioned as a strategy to connect new subscribers, convergence of regulatory spheres such as telecommunications, radio and television given that combined (“triple play”) services make separate regulation difficult, and the proposal of simplified or unified licensing regimes designed to support any telecommunications provider offering any services, on a basis of assuring that consumer rights and market competitiveness are protected.

WTDC Resolutions 54, 72 and 74, on ICT applications, effective usage of mobile communications, and e-government services, also reflect this notion of ICT Applications through new networks, while failing to provide a basis for recognizing when these types of telecommunications environments may have impacts on the nature and advantages of the open Internet. WTDC Resolutions 34, 63, 65, and 66, and WTSA Resolutions 47, 48, 49, 64 and 73 represent more particular ICT applications, including disaster preparedness, healthcare services, ICTs for climate change, IPv6 and IP address allocation, country code Top Level Domains (ccTLDs), Internationalized Domain Names (IDNs), and ENUM.

We note the role of the concept of convergence in order to show the significance of the fact that the ITU’s WSIS measures actually represent a de-convergence in service of a distinction between content creation and telecommunications. The position of the notion of the Internet in relation to these categories is still unclear, but 1) the WSIS project is proceeding in a manner that confuses the nature of the Internet in service of networks that may support convergence in the form of ICT Applications of various sorts, while 2) the process already incorporates a de-converged framework that is not being acknowledged in the general discourse, one of great significance from the standpoint of the Internet’s support for shared information and collaboration.

Implications

A few observations follow on the implications of the above analysis in the context surrounding the WSIS project.

Internet Governance and “Internet Universality”

In recent developments in the Internet governance arena, Brazil has responded to revelations of US government surveillance by initiating proceedings to develop a frame for international Internet governance in some way independent from the role of the US. Subsequently the US’s NTIA has announced its willingness to release core IANA functions to oversight by global multistakeholder processes, stipulating while doing so that it would not support a framework that was governmental or inter-governmental in nature.

However, the WSIS project incorporates elements of inter-governmental agreement in terms of the way in which the pursuit of the project has been framed, and the WSIS measures represent the bases by which the progress of these processes are to be assessed. The 2010 Plenipotentiary conference issued a set of resolutions setting an inter-governmentally endorsed framework within which the ITU would conduct proceedings in its radio (ITU-R), standards (ITU-T) and development (ITU-D) sectors in accord with WSIS and broader UN parameters. Indeed, the confusion in the WSIS measures regarding the distinctions between Internet connectivity and other types of IP-based connectivity can be traced to certain key resolutions issued by the 2010 Plenipotentiary conference.

Two submissions to Brazil’s Netmundial conference are of great potential significance in relation to the inter-governmental frame set at the 2010 plenipotentiary conference, and to the framework of industry categories embodied in the ITU’s WSIS measures. Verizon’s submission makes specific reference to the Technical Barriers to Trade agreement, with its relationship to conformance assessment and the ISIC categories (http://content.netmundial.br/contribution/keywords-internet-investment-innovation-competition-multistakeholder-standards-human-rights/184.pdf). UNESCO has called for recognition of a principle of “Internet Universality” the significance of which can be understood in light of the question of whether the type of interoperability already made possible among autonomous networks by the Internet will be recognized in processes that so far do not adequately recognize that key characteristic (http://content.netmundial.br/contribution/internet-universality-a-means-towards-building-knowledge-societies-and-the-post-2015-sustainable-development-agenda/151).

The 2010 Plenipotentiary resolutions called for the WTSA and WTDC proceedings to be conducted with open consultancy processes (PP 178, PP 140). At the same time, though, they stipulated that the WTSA was to be framed by the strategic goals of the WSIS outcome documents (PP 122), and the WTDC was to be framed within the terms of the broader UN Development Program and the UN Millennium Goals (PP 135). The WTSA was concluded in 2012 and its outputs include resolutions recognizing the ITU-T sector’s work on certain “more technical” topics, including various standards related to Names, Numbers, Addresses and Identifiers (NNAIs), including ENUM and more indirectly the system for digital identifiers described in ITU-T Recommendation 1255.

These standards are potentially critical in relation to a notion of “Internet Universality,” as they can be used to support a conception of interoperability on the basis of assuring adherence to common rules, potentially by validation of identifiers, rather than recognizing interoperability as an inherent attribute already available from the maximally flexible platform produced by using IP to interoperate among autonomous networks. Some functions implemented as “universal” by assuring conformance with common rules could interfere with the open design for interoperability across autonomous networks already provided by the Internet Protocol and the fundamentally flexible nature of the platform that results.

The WTSA outcomes for the ITU’s standardization sector already enjoy inter-governmental support since they fulfill 2010 Plenipotentiary instructions, and anyway are subject to inter-governmental review again in the regular 4-year ITU cycle, with the next Plenipotentiary conference closing the current cycle later this year. The open consultancy process associated with the WTSA also serves to politically affirm and validate the framework set in the 2010 Plenipotentiary resolutions. This includes, unfortunately, the confusion in the terms Internet, IP-based networks and Next-generation networks presently embodied in the Plenipotentiary resolutions.

UNESCO presents its “Internet Universality” proposition as an outcome of the UN GIS and WSIS+10 processes, relating the proposition more closely to the process of reviewing the success of the WSIS project and the broader UN frame that sets the limits for the WTDC than to the WSIS outcome documents that set the boundaries for the WTSA. Whereas the WTSA endorsed more abstract and “more technical” standards according to strategic goals in the WSIS outcomes, the WTDC will endorse more concrete technology solutions and policy frameworks for developing countries throughout the world in accord with UN purposes and a determination of the success of the project that fail to recognize the impacts these initiatives will have on the Internet — serving through its own open consultancy process as a political affirmation and validation of these components of the WSIS project as well as the 2010 Plenipotentiary framework.

It stands to reason that if the present confusion in the 2010 Plenipotentiary resolutions and the ITU’s WSIS measures is not clarified, then “Internet Universality” could be implemented in ways based on a new conception of the meaning of the term Internet that would undermine the inherently open form of universal interoperability that is already built into the design of the IP layer, and this new framework could be enforced by means of conformance assessment processes in support of the Technical Barriers to Trade agreement.

The FCC’s “IP Transition”

The fact that both the ITU’s measures and the US’s draft of the broadband study question fail to distinguish open Internet from specialized services and both are elaborated in terms consistent with vertical integration, without referencing the Internet in contexts supporting competitive access at the physical layer, may explain much of the FCC’s approach to the “IP Transition” in the United States.

The FCC is presently engaged in an “IP Transition” that does not clearly represent a transition to an Internet platform, though it might seem that way. The IP Transition designates a process of encouraging experiments by network providers to deliver connectivity in new ways using IP-based networks, independent of regulatory principles that have applied to traditional telecommunications, as a result of the fundamental changes in the regime wrought by IP communications. These IP experiments are to examine impacts on principles of public safety, universal access, competition and consumer protection. The Technology Transition Task Force indicates that this process is to be conducted with the use of clear and consistent definitions and metrics that allow results to be aggregated across experiments.

However, there is little sign of attention by the FCC to the distinction between Internet and specialized services that it examined during the Open Internet proceeding, in its “Further Inquiry into Two Under-developed Issues in the Open Internet Proceeding” (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1667A1.pdf).

The characteristics of the WSIS measures I have described above are fully consistent with an IP Transition to the type of next-generation IP-based networks to support ICT applications that the WSIS project is presently designed to foster — failing to recognize distinctions between open Internet and specialized services or among the terms Internet, IP-based networks and next-generation networks, and referencing the Internet in relation to vertically integrated telecommunications.

In fact, the recent addition of the TV subscriptions indicator to the core indicators, combined with the incorporating into the revenue and investment measures of a de-converged framework based on distinguishing video and content creation from other information and communications industry sectors, might reasonably lead one to wonder how much we can attribute to coincidence the facts that nearly at the same time Comcast is moving to consolidate Time Warner Cable and making a critical move to a direct interconnection arrangement with Netflix, with Verizon announcing it intends to reach a similar arrangement with Netflix. Indeed, concurrent activities related to copyright also might lead one to ask a similar question: the US’s pursuit of an international broadcaster’s right, its position in the Aereo case, and the US PTO’s proceedings on numerous aspects of digital copyright. Similar copyright-related developments are also underway in the European Union.

FCC Commissioner Tom Wheeler presumes a vertically integrated context and describes his approach to ensuring the open Internet in a manner consistent with the WSIS impetus toward implementing networks designed to support key ICT applications. He appears to advocate an “Internet ecosystem” approach to policy and to take an approach to analysis of telecommunications policy choices consistent with the principles of the framework which was articulated by Joseph Farrell and Philip J. Weiser in 2003 and which was a key citation in the FCC’s 2005 Wireline Order, presenting a basis for understanding the dynamics of vertically integrated platform providers engaging in application markets dependent on their platform (http://jolt.law.harvard.edu/articles/pdf/v17/17HarvJLTech085.pdf).

In Ensuring an Open Internet Now and for the Future (https://www.fcc.gov/blog/ensuring-open-internet-now-and-future), he bases the necessity of government oversight on the facts that broadband networks support essential services for society, and there are likely to be few such networks, stating that this condition means they are likely to enable exercises of market power.

He characterizes concerns expressed in the NN debate in relation to a process of developing policy decisions regarded as a “work in progress” and in light of Michael Powell’s Open Internet Principles. He articulates his approach in terms of a dynamic constituted of weighing concerns of producers and consumers, such as that network operators will make moves that cut off or diminish the value of the Internet, or that the FCC will intrude on network operators in ways that cause economic harm or inhibit their ability to offer improved service, declaring that he will avoid either interfering with practices that produce efficiency and enhance competition, or allowing practices that reduce those characteristics.

This approach consistently overlooks recognition of the basis of the Internet in the problem of interoperating among autonomous network providers, which had ready, competitive access to physical infrastructure up until the 2002-2005 timeframe in the United States, and consequently provided an open, neutral and universally interoperable platform up until then to all providers and end users taking part in the network of networks established among them on the basis of the TCP/IP protocol. Wheeler’s reference to Title II in his response to the DC Circuit’s ruling on the Open Internet rules may seem to suggest the use of Title II (if its usefulness becomes apparent to the FCC) as a basis for establishing net neutrality by setting rules on information service providers at a higher level, rather than simply as a basis for applying common carriage principles at the physical layer, thereby opening it up to competing providers and reestablishing the original dynamic.

It should be noted that Farrell and Weiser describe the modularity of the Internet within their framework in terms that do not acknowledge it as an emergent property of autonomous networks interoperating, but more in terms that treat it as deriving from decisions of the network provider. They frame the question of how to assess acts by vertically integrated platform providers wherein they take part in or exert influence on complementary application markets dependent on their platform to various degrees or not, in light of effects on efficiency in delivering information services which derive from their vertical integration. They do not phrase the question, however, of how the advantages of a dramatically flexible platform wide open to independent innovation that emerges as a consensus solution to interoperation among independent competing providers (not the applications that stem from that platform, but the platform itself that so arises) should be considered against the efficiencies in delivering the particular services of a vertically integrated provider.

Farrell and Weiser also reference the definition of the Internet issued in 1995 by the Federal Networking Council in connection with their treatment of the modularity of the platform that lies at the center of their analysis. This definition of the Internet was notable at the time for referencing the TCP/IP protocol (http://2001-2009.state.gov/e/eeb/cip/wsis2005/50918.htm), but its suitability for representing the Internet is a mirage. It essentially reduces the Internet to the collection of networks that use IP addresses, citing the Internet Protocol solely for its reference to those identifiers in the header fields of Internet Protocol packets, while making no reference to what IP packets accomplish in terms of providing a layer that enables maximal interoperability between autonomous networks. The FNC definition thus represents an early basis for the present confusion in terms, whereby individual networks that may be performing esoteric functions within themselves while using TCP/IP, and which may thus properly be called “IP-based,” are easily confused with the network of networks that the concept of internetworking represents and that the Internet Protocol was designed to enable.

The FNC definition was also issued at a time when the telecommunications policy context in the United States supported competitive access to the physical infrastructure layer, so the basis of the dynamic of the Internet platform in a policy context that originally assured competition among autonomous network providers at the physical layer was perhaps too implicit to be explicitly acknowledged as a factor in sustaining its most profound characteristics: its flexibility, openness, interoperability and inherent neutrality.

Recommendations/Conclusion

In the measures that it uses to assess its progress the WSIS project is systemically designed to implement telecommunications network environments that do not distinguish between the Internet made up of interoperating autonomous networks and other types of IP-based networks, and thus that fail to distinguish between open Internet and specialized services.

If we fail to correct this oversight while encouraging the advancement of the WSIS project, we are encouraging the establishment of networks in developing countries that do not reflect the key strengths of the Internet, and we are encouraging a fundamental reshaping of what the term Internet means as we implement governance within this framework. This is a critical concern for the upcoming WTDC, the WSIS+10 process, the development of the ITU Strategic Plan, as well as various proceedings underway related to international Internet governance and Internet-related public policy and developments in telecommunications at the national level.

Recommendations:

WSIS Indicators, including WSIS+10:

Revise the measures used to assess the performance of the WSIS project to quantify the status of application-independent packet transmissions separately from transmissions that tailor the treatment of packets according to application, to enable tracking trends related to open Internet services, both in terms of availability of open Internet and in terms of the influence of open Internet connectivity on WSIS goals.

Alternately, begin a process to develop common understanding of key characteristics of the Internet to support identification and tracking of trends and effects of WSIS processes; in the meantime, revise the WSIS indicators to use the general term “IP-based networks” wherever they presently use the term “Internet.”

Identify and track vertically integrated communications environments separately from contexts assuring competitive access to physical layer infrastructure.

Since a network of autonomous networks supports network neutrality naturally since individual networks cannot predict the applications that other networks and their user will be using and supporting, introduce a measure of the number of network providers of various types per geographical region.

Other characteristics useful in understanding whether networks are open include:

blocking or monitoring of ports, particular applications, or servers
blocking or monitoring traffic for spam, other undesirable content, copyright infringement, anti-government activities or for other purposes
symmetric or asymmetric upload/download capacity
capacity caps
whether the network is on lines that are subject to competitive access by regulation
whether network neutrality is established by regulation at the information service level
whether the lines are subject to traffic shaping based on application or content
whether general purpose, application-independent traffic can be impinged on by specialized services on the same lines

Develop protocols to notify users when transient traffic shaping is occurring because of temporary congestion issues.

Recognize and consider the progress and effects of the WSIS project in the WSIS+10 review process frankly in terms of the above distinctions, addressing availability of the Internet’s characteristics and advantages that are uniquely conducive to WSIS and broader UN goals, as well as effects of different types of networks on these goals and on each other.

2014 Plenipotentiary Conference:

Correct confusion in key terms “Internet,” “IP-based networks,” and “next-generation networks” in Internet-related resolutions, including PP 101, 102, 133 and 137.

Address these types of networks distinctly and explicitly rather than using general terms such as ICTs or ICTs/telecommunications

Address vertically-integrated policy environments and policy environments assuring competitive access to physical layer infrastructure by independent providers distinctly and explicitly rather than using terms that are indefinite on this distinction such as “pro-competitive policies.”

Address conformance and interoperability in two distinct senses: technical compatibility including between autonomous networks, such as is already supported by application-independent packet transmissions; and interoperability based on adherence to a common policy. In developing policy and technological solutions, recognize and address impacts on the universal form of interoperability already provided by the Internet’s basic design.

ISIC and Technical Barriers to Trade Agreement:

Assure that shared physical infrastructure telecommunications is recognized as supporting the Internet by specific reference to the term.

Develop industry categories based on Internet as one information service among others, as distinguished from provision of physical infrastructure, whether vertically integrated or subject to policies for competitive access

Alternately, begin a process to address implications for the ISIC and TBT Agreement of recognizing that industry sectors that assure competitive access to physical layer infrastructure provide a resilient foundation for an Internet that retains its key characteristics of flexibility, openness, interoperability and inherent neutrality. In the meantime replace usage of the term Internet in the ISIC definitions with the general term “IP-based networks.”

Address conformance and interoperability in two distinct senses: technical compatibility including between autonomous networks, and interoperability based on adherence to a common policy. In developing industry categories, engage openly with stakeholders in recognizing impacts that schemes such as the present distinction between content creation and telecommunications might have on the open Internet platform, as claims are brought against technologies that may support more flexible and collaborative relationships to shared and published information.

United Nations Agencies:

Incorporate recognition of distinctions between types of networks, including key characteristics of the open Internet, in framing the contribution of technologies and development programs to broader UN goals.

Internet Governance, including Enhanced Cooperation, NETMundial, Proceedings on Internet-related Public Policy Issues:

Establish recognition of key characteristics of the Internet prior to developing policies or systems of governance.

Implement a process that places recognition of the universal form of maximal interoperability already established for the Internet in a position prior to policies endorsed under the rubric of “Internet Universality,” which may otherwise support interoperability in the sense of adherence to common policy without providing adequate channels for addressing impacts on the platform.

Assure that policy contexts and development initiatives are framed in terms that recognize that the modularity and flexibility of the Internet derives from the dynamic that arises among autonomous providers that have competitive access to the physical layer.

-xvx-

On Tue, Nov 26, 2013 at 8:13 PM, Seth Johnson wrote:
> Hello Julie, ITAC, and all:
>
> As promised, here are parts 2 and 3 of my analysis of ITU Resolutions.
> This constitutes a comprehensive view of the implications of the
> failure of the WSIS project and the ITU to recognize the key
> characteristics that make the Internet unique. It is focused on WTDC
> resolutions and is organized in terms of the WTDC Action Plan, but
> also covers PP and WTSA Resolutions.
>
> Part 2: Cybersecurity, ICT Applications and IP-Based Network Issues:
> http://internetdistinction.com/wsisimpacts/2013/11/25/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/
>
> Part 3: the Enabling Environment, Capacity Building and Digital Inclusivity:
> http://internetdistinction.com/wsisimpacts/2013/09/09/enabling-environment-capacity-inclusivity-understanding-impacts-on-the-internet/
>
> This analysis has guided my contributions since at least April,
> allowing me to prioritize the revisions needed and address the
> approach of the US Delegation as the WTDC approached.

<< SNIP >>

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