You might have heard of the four freedoms the FCC Chairman Michael Powell recited earlier this year. In short, users of a communications network should have the following capabilties:
- Freedom to Access Content. First, consumers should have access to their choice of legal content.
- Freedom to Use Applications. Second, consumers should be able to run applications of their choice.
- Freedom to Attach Personal Devices. Third, consumers should be permitted to attach any devices they choose to the connection in their homes.
- Freedom to Obtain Service Plan Information. Fourth, consumers should receive meaningful information regarding their service plans.
This consumer charter is laudable. Users should be able to freely process and transmit bits on connections that were purchased on clear terms. As a template for public policy, it's very good. But it isn't enough.
You can't have personal freedom without choice. It's practically a tautology to say so. And to have choice, the market has to be free to supply you with goods that meet your needs. It isn't enough to merely be able to select from an abbreviated list of hobbled and over-priced networks and devices.
So I propose we need a second charter. This one, however, is aimed at producers. To make the consumer charter worth something, you need both.
What are the producer freedoms for the communications industry? Here's my stab at it:
- The freedom to manufacture any device. Messing with the words of the famous US Supreme Court Betamax decision, if it has substantial legal uses, then it's OK to make it. Furthermore, any illegal use can't be "recursive": that is, the illegal act can't itself be a regulation whose primary purpose is to outlaw classes of device; it has to be external to communications regulation (e.g. preventing the spread of child pornography or preventing terrorism). The user's freedom to attach devices is worthless if their choice of devices is circumscribed in advance.
- The freedom to fund and deploy any network without constraint. It should not be possible for municipalities to prevent the deployment of any network (e.g. through an exclusive franchise deal), or for anyone to prevent any entity (including a state or local municipality) from deploying a network and funding it from any legal means. Some of this was codified in the US in the 1996 Telecom Act, but went horribly wrong in implementation and got overturned in the courts. Outside the US, it's a mixed bag, with places like Scandinavia having excellent public communications infrastructure.
- The freedom to acquire wayleaves and spectrum on an open and non-discriminatory basis. No spectrum, licensed or unlicensed, would come burdened with rules on what it could be used for. Likewise for rights-of-way acquired across public lands or through exercise of eminent domain. Licenses to dig holes in the road should be available for any non-frivolous purpose, regardless of who else dug a trench before you. Existing privileges and encumberances (like mandated analogue TV and radio frequencies) would be phased out or bought out.
- The freedom to extend via interoperation. At the network level, this is what IP does for us, and nobody owns that interface to extract rent from it. But you need physical networks to connect to, and not just a technical spec on how to do it. There still need to be rules that force reasonable and non-discriminatory interconnect terms on network providers who have local market power in excess of what a truly free market would offer. At the device level, it's all in the interface. We should ensure that patents are only enforceable on the implementation beyond the interface, not the interface itself. A further refinement to patent law is to require that licenses must only be enabling; you could never specify things that cannot be done with the device or technology once licensed. A fair enough restriction for a quarter-century of state-enforced monopoly rights.
As ususal, there will be exceptions. For example, we might carve out a little separate world for public safety applications (the original reason for spectrum regulation in ths USA was communications problems following the sinking of the Titanic). But let's stop making the exception into the rule.
This is going to upset some people, since it is as much about putative future producers and competitors as existing ones. Incumbents have noticed that there are many fewer producers of networks, devices and services than there are users. Users and unpredictable, get uppity and vote in horribly misguided ways when they're upset. Much easier to lobby for freedom restrictions on the producer side, since nobody misses a freedom they never felt in the first place. And thus we get broadcast flags for HDTV, region-coded DVD players, and non-interoperable audio content.
I'm not so naive as to believe any of this will come to pass. Yet I'm happy for my and your descendants to know we dreamed of a better, freer future.
Posted by Martin Geddes at 4:56 PMTrackBack URL for this entry:
http://www.telepocalypse.net/cgi-sys/cgiwrap/mgeddes/MT/mt-tb.cgi/300