The Internet Distinction

by Seth Johnson

Further Analysis
“Recognized Operating Agencies”
Competition and the Internet
Vertical Integration and the Internet Platform
Some Notes on Defending the Internet in a Transnational Context

Further Analysis

My initial analysis of the contributions of the US Delegation at the outset of the ITU’s World Conference on International Telecommunications (WCIT), concluding tomorrow, focused on highlighting certain discrepancies between the US’s rhetorical stance of opposition to a new international regulatory regime, increased control over Internet governance, and censorship, and what the actual recommended language would actually accomplish.  It shows how the US’s proposals emphasize a generalized conception of liberalized competition that if endorsed as part of the frame established by the ITU would serve to legitimize the failed conception of competition embodied by the telecommunications regulatory regime in the United States.  It also illustrates how the US recommendations do not actually limit the ITU from extending its scope beyond “traditional telecommunications,” as the Internet Society advocates that they should.  Instead the US’s position provides a broadly-stated frame that lets the ITU continue the expansive interpretation of its scope that it has already expressed in its previous proceedings, such as the Geneva and Tunis Declarations for the World Summit for the Information Society, and the Hyderabad World Telecommunications Development Conference Declaration.

In the following I extend my comments to further illustrate the implications for the open Internet of the US’s position and to describe how the goal of preserving the Internet’s nature would be most effectively served.  Along the way, I first examine the dispute over applying the International Telecommunications Regulations (ITRs) to “recognized operating agencies” (ROAs) as the US has advocated, or to all “operating agencies” (OAs).  I also offer comments pertaining to the relation between the generalized language regarding competition that the US advocates, and the US incumbents’ conception of telecommunications in the IP-enabled world as a vertically integrated market which that language fully supports.

“Recognized Operating Agencies”

As the conference has proceeded, the US has presented its advocacy for the term “recognized operating agencies” (ROAs) as guarding against efforts to extend the scope of the ITU to cover the Internet. In this recent interview, US Ambassador and head of the US Delegation Terry Kramer associates ROAs with traditional providers of telecom services while referencing the conference’s charter, which is focused on telecommunications, thereby projecting the ROAs versus OAs issue as about distinguishing telecommunications from Internet concerns.  However, what should also be noted is that the US is seeking to define a relationship between the ITU and international telecommunications providers that designates certain providers as specially “recognized” by their governments.

The debate over ROAs or OAs is a dispute between contingents that both want to endorse oversight by the ITU — while we have not yet actually limited its scope or defined the distinction between “traditional telecommunications” and such terms as the Internet, ICTs, or information services, and while we are endorsing a broadly-stated definition of telecommunications that the ITU has already seen fit to interpret expansively in other proceedings prior to the WCIT.

The distinction between the two positions is simply about two different modes by which to define the relationship of the ITU to providers of international telecommunications: either 1) by enacting explicit rules now that go beyond “traditional telecommunications,” and applying them to all “operating agencies” among nations that sign onto the ITRs; or 2) by not enacting rules that address the Internet (as yet), but by endorsing the ITU’s oversight in relation to particular “recognized” operating agencies that will then hold a special status under international rules for providing international connectivity to the public within their Member States.

These are not the only options available for defining this relationship, and below I will explain how recognizing the nature of the Internet’s foundation would guard the Internet more effectively than the frame presently being promulgated at the the WCIT.  Nevertheless, the US presents its position for ROAs favorably as compared to the position of nations proposing to cover all OAs, by identifying the proposals of these nations as extending the ITU’s scope to the Internet and opening up the prospect of empowering censorship.  As I noted in my previous analysis, this stance against censorship can easily divert attention from addressing critical questions that might arise given the ITU’s already-established relationship to providers of physical telecommunications infrastructure.  The US’s argument for using the ROA term in terms of resisting censorship is an example of this, whereby it advocates a relationship between the ITU and US providers of international telecommunications services that places the incumbents’ national network offering in a unique new position legitimized by the framing of an international body.

The way the US distinguishes other agencies from “recognized” operating agencies offers indications of the special status that ROAs would have (“other operating agencies that are not involved in the provision of authorized or licensed international telecommunications services to the public”).  Apparently other agencies will not provide international Internet connectivity to the public, and would need a license or authorization of some sort to hold “recognized” status.  This distinction in terms of authorization or licensing may also reveal that Article 9, the provision allowing “special arrangements” separate from the 1988 ITRs, and under which the international Internet was developed since then, will need to be removed or made subject to new forms of authorization (although revisions to that effect have not been proposed).

In his recent interview, Ambassador Kramer offers new distinctions, identifying the ROA term with “traditional providers of public telecommunications services,” distinguishing this category from “Internet players” and private or governmental networks, rather than describing the distinction in terms of whether agencies provide international connectivity to the public or are authorized to do so.  This newer formulation does not clearly reveal whether by “private networks” Kramer means other providers competing at the physical layer and offering international connectivity to the public.

Kramer also repeats the framing of the ROAs vs OAs issue in terms of resisting censorship, distinguishing telecommunications from Internet issues by noting the OA term could include “Internet players” and thus extend the regulations to give oversight of content.  Again, this allows the US to valorize its position in contrast to the prospect of censorship, but it also directs attention away from the fundamental basis of the dynamism of the Internet in competition at the physical layer.

Competition and the Internet

When entry by competing providers at the physical layer is impeded by dominant providers in any region, you do not have an Internet within that region — you have an intranet. There is no Internet if there is no interoperation between autonomous networks — and there is no free market in information products without competition at the physical layer making that market possible for end users.

Likewise, there is no Internet within a vertically integrated telecommunications environment that has joined the physical layer with the higher layers within which Internet applications are deployed.

Telecommunications policy is fundamentally about transmitting information across physical space, whether through the air or carried over or buried under the ground.  The freedom to compete at the physical layer is the crucial basis for the Internet that is at stake when developing telecommunications policy frameworks, including in the international context.

Communications advocates recognize that the Internet platform that existed in the United States before 2005 was characterized by a highly competitive market among autonomous Internet providers at the physical layer.  Bruce Kushnick of The New Networks Institute has long chronicled the developments in communications policy in the United States, and in a recent article on Huffington Post he provides an instructive detailing of the history of Internet and broadband provisioning.  As of the end of 2000, there were over 9,000 independent ISPs in the field providing access to the Internet to 77.5 million subscribers, and while we can’t measure the demand produced by the Internet platform in terms of the products of the “traditional telecommunications” context, Kushnick shows that this competition at the physical layer was associated with a pronounced growth in deployed phone lines.

The disappearance of this market was not a case of horizontal or vertical market consolidation by the incumbents; it was a regulatory act that in one move eliminated the competition and allowed the US incumbents to claim the physical infrastructure layer and vertically integrate it with their own information services offerings.

We will not be able to guard the Internet until policy frameworks are articulated that clearly identify the role of competition at the physical layer in such a way that regulators will clearly understand the importance of the distinction.

Vertical Integration and the Internet Platform

The foremost question that delegates for the US must address regarding international telecommunications in the IP-enabled world is about potential impacts on the dynamism that comes from a real Internet that would be brought by the vertically integrated telecommunications context represented by the US incumbents.  A vertically integrated market benefits the competitiveness of particular telecommunications providers in certain ways but it works directly against other benefits for the public that are crucial aspects of the Internet platform and the market it creates.

The merits of a vertical market in telecommunications in relation to public policy regarding the Internet cannot be assessed according to indicators related to particular products offered by particular telecommunications providers who have vertically integrated their production and supply lines across the physical layer.  Instead, the relevant merits are about the direct social advantages of: 1) the flexible, general purpose platform that is assured as a natural result of providers competing at the physical layer, who must also interoperate in a general purpose manner for the sake of their end users’ global reach and in support of the unpredictable variety of products that may be developed or consumed on other participating networks; and 2) the very differentiation of products and services made possible by this highly flexible platform, on the basis of which end users and network providers compete.

Both of these advantages of the competitive market in interoperating, independent providers at the physical layer are counteracted when telecommunications providers gain market dominance by vertically integrating the physical layer with higher layers.

These two advantages express the underlying dynamics produced by establishing a general purpose medium among interoperating providers that enables a new market in globally accessible and distributable information products.  The economics of vertical markets, on the other hand, relate to control and efficiency for particular producers and particular products supported by their production and supply chains.  An analysis in those terms does not address the impact of that integration on the very basis for a new kind of market made possible by a globally connected platform whose flexibility is assured by competition among providers at the physical layer.

Some Notes on Defending the Internet in a Transnational Context

As long as the Article 9 provision for special arrangements remains in the ITRs, we can always continue to use that as we have in the past, and ignore overtures by other countries (or the US) proposing that the ITU extend its provenance in such a way as to allow it to legitimize constraints on competitive access to the physical layer or to enact rules that obstruct innovation on the Internet platform established on that foundation. If we consider eliminating Article 9, however, then “recognizing” particular providers for oversight under the ITRs is not a particularly relevant limitation for preventing the ITU from undermining the Internet platform, or from expanding its scope to Internet governance.

If we are to limit the ITU from expanding its scope in such a way as to interfere with the Internet, then we must recognize the nature of the Internet’s basic foundation.  There is only an Internet in a context constituted by open and free competition among independent providers who can readily gain access at the physical layer.  Conversely, when access to communications across physical space is impeded by privileged providers of infrastructure, that constitutes an intranet, not an Internet.  Thus recognition of the physical layer is key to defending the Internet, while overlooking the distinction alows the platform to be undermined.

We can only secure that platform from the ambitions of an intergovernmental forum like the ITU 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.

Note that of course this approach cannot stop oppressive governments from interfering with the Internet within their own national networks, but this is the frame that in the long (and short) run will defend and preserve the Internet, because it is only within those national traditions that place a priority on fundamental freedoms that the kind of environment that will continue to route around censorship will exist.  It is only within this kind of environment that the Internet actually thrives and survives because in such a free country the activities of its citizens on that platform are secured by their claim of fundamental rights.  This is what we rely on to secure freedom in America — not “recognized” operating agencies, generalized support for “liberalized competition,” or broadly stated definitions of telecommunications.

Rather than endorsing the ITU with a frame that helps rationalize what passes for competition here in the US while setting the US incumbents up with a special relationship to new international rules governing international telecommunications, the WCIT proceedings in Dubai could become the occasion for setting a frame that secures the Internet platform while preventing international governance from becoming a means for empowering local governments to act through their special relationships with providers of national intranets to disrupt the freedom of the platform.

The WCIT can be an opportunity to set a marker beyond which the executive branch in the US will not allow the US incumbents to pass. Whatever happens with the ongoing efforts of the US incumbents to characterize attempts to enforce the obligations that they incur along with the privileges they obtain in relation to the public right of way as governmental regulatory takings or violations of their free speech rights, we still can put their efforts to set the frame in these terms within an larger political context that can help us take back our communications policy.  But we can do so only so long as the executive branch is willing to use the treatymaking power to draw the line rather than to help the incumbents extend their reach to the international arena.

We certainly don’t want our executive branch to endorse an international forum with a frame that will legitimize the failed conception of the US incumbents and let it stand as what we rely on to represent what fosters the development of infrastructure to support the Internet.

If the administration were ready to state that we cannot secure the Internet unless we recognize that it’s based on a foundation of network providers that can readily gain access to and compete at the physical layer, then the WCIT could become an historic occasion to re-empower the Internet, to effectively guard against misapplications of international governance related to the Internet, to reassure US constituencies that have long sought to redirect telecommunications policy in the US, and to reassert the basis in fundamental freedoms that is the actual foundation that renders the Internet capable of routing around censorship.

by Seth Johnson

(also at TelecomTV and .NXT)

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 Question to Ask About the WCIT

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:”

MOD USA/9A2/6

Administrations*Member States shall encourage investment in endeavour to provide sufficient telecommunication facilities to meet the requirements of and demand for international telecommunication services,inter alia through the fostering of competitive and liberalized telecommunication markets.

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.

General Rhetorical Thrust of the US Delegation’s Recommendations

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.

Failing the Internet: What the US Delegation’s Recommendations Leave Out

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:

NOC USA/9A1/18

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.

ADD USA/9A1/19

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.

Protecting the Internet: Getting It Right First

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.

Footnotes

1) Addendum 1, Introduction:

“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.”

2) Addendum 1, United States’ Views on the ITRs:

“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.

Addendum 1, Proposals for the Work of the Conference:

“[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.”

3) Addendum 1, United States’ Views on the ITRs:

“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.”

Addendum 2, Introduction:

“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.”

4) Addendum 2, Introduction:

“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.

5) Addendum 1, Proposals for the Work of the Conference:

“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.”

Addendum 2, Introduction:

“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.”

MOD USA/9A2/38, Resolution No. 4:

“considering
“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;”

6) The Internet Distinction statement provides a clear description of how this foundation was originally established in the case of the United States.

7) International Telecommunications Rules, Article 1.1:

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.

8) 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.