Toward A New Public Interest Communications Policy Agenda for the Information Age: A Framework for Discussion by the Electronic Frontier Foundation June 1, 1993 I. Introduction For over a decade techno-prophets have been predicting the convergence of telephone, computer and television technologies. In this world, endless information would be available at the touch of a button and many of life's chores would be simplified by artificially- intelligent personal assistants. The prophesied results were said to be everything from a newfound global village enabled by democratized communications tools, to an Orwellian multimedia, mind-numbing, thought- controlling, consumer culture/police-state gone wild. In the past, discussions of this convergence has been relegated to the musings of futurists and the arcana of telecommunications regulatory policy. This year, however, the grand convergence is evident both on the front pages of national magazines and newspapers, as well as in the White House. Telecommunications infrastructure policy -- the management of this grand convergence -- has arrived as a mainstream policy issue. Most telling of all, large investments are now being made in order to take advantage of business opportunities arising out of the convergence of television, computers, and telecommunications. Despite existing regulatory barriers, a number of major corporations have undertaken major initiatives which blur the traditional media distinctions. Regional Bell Operating Companies, including Bell Atlantic and US West, have announced multi-billion dollar infrastructure investment plans which position them to expand from the telecommunications market to the video entertainment market. By the same token, cable television companies are crossing over from their traditional domain toward being able to offer telecommunications services. Early in 1993, Time-Warner announced plans to offer interactive services and connections directly to long distance telephone networks for residential customers in Orlando, FL. Six cable television companies also recently joined forces to purchase a company called Teleport, which competes directly with local telephone companies. And finally, US West announced in May 1993 that it will purchase a multi- billion dollar stake in Time-Warner Entertainment Partners. All of these developments are being watching with great interest by Congress and the Administration. No longer is telecommunications policy a matter of sorting out the special interests of newspaper companies, telephone companies, and cable companies. Rather it has been re-christened as "information infrastructure" policy. As such, it is recognized to have major implications for domestic economic development, global competitiveness, and science and technology policy. The ultimate symbol of this increased interest in telecommunications policy is the Vice President's frequent declaration that the Clinton Administration is committed to promoting the creation of electronic superhighways in the 1990s, just as the Vice President's father oversaw the construction of the interstate highway system in the 1950s. Talk of superhighways and potential for new economic growth, though, may lead some to forget that in shaping information infrastructure policy, we must also be guided by core communications policy values. The "highways" that are being built here are for speech as well as for commerce. In order to preserve the democratic character of our society as we move into the Information Age, these key public interest communications policy goals must be kept at the forefront: o Diversity of Information Sources: Creating an infrastructure that promotes the First Amendment goal of availability of a maximum possible diversity of view points; o Universal Service: Ensuring a minimum level of affordable service to all Americans; o Free Speech and Common Carriage: Guaranteeing infrastructure access regardless of the content of the message that the user is sending; o Privacy: Protecting the security and privacy of all communications carried over the infrastructure, and safeguarding the Fourth and Fifth Amendment rights of all who uses the information infrastructure; o Development of Public Interest Applications and Services: Ensuring that public interest applications and services which are not produced by the commercial market are available and affordable. Advances in telecommunications have tremendous potential to support all of these important communications policy values. In many cases, inexpensive equipment exists which could give individuals and small organizations a degree of control over information that has never before been possible. However, if not implemented with core communications values in mind, the technology will do more harm than good. The convergence of historically separate communications media poses a major challenge to the public interest community. The Electronic Frontier Foundation hopes to play a role with other public interest organizations in realizing the democratic potential of these new technologies. II. Framing Public Interest Communications Policy Goals For The Information Age: What is at Stake in the Development of the Information Infrastructure A. Diversity of Information Sources Aside from the universal service guaranty, the driving communications policy value for the last fifty years has been promotion of the maximum diversity of information sources, with the greatest variety of view points. Most agree that from a diversity standpoint, the ideal environment is the print medium. Compared to both the broadcast and cable television arenas, print is the vehicle for the greatest diversity of viewpoints and has the lowest publication and distribution costs. Despite the regulatory steps taken to promote diversity in the mass media, the desired variety of opinion and information has never been fully achieved. The switched nature of advanced digital network technology offers to end the spectrum and channel scarcity problem altogether. If new network services are deployed with adequate down- and up-stream capacity, and allow point-to-point communication, then each user of the network can be both an information consumer and publisher. Network architecture which is truly peer-to-peer can help produce in digital media the kind of information diversity that only exists today only in the print media. If network access is guaranteed, as is the case in the public switched telephone network, the need for content providers to negotiate for air time and channel allocation will be eliminated. Even in a truly interactive network environment the government will still need to provide financial support to ensure that public interest programming is produced and available, but channel set-asides per se will not be necessary. B. Universal Service: From Plain Old Telephone Service to Plain Old Digital Service The principle of equitable access to basic services is an integral part of nation's public switched telephone network. From the early history of the telephone network, both government and commercial actors have taken steps to ensure that access to basic voice telephone services is affordable and accessible to all segments of society. Since the divestiture of AT&T, many of the internal cross-subsidies that supported the "social contract" of universal service have fallen away. Re- creation of old patterns of subsidy may no longer be possible nor necessarily desirable, but serious thought must be given to sources of funds that will guaranty that the economically disadvantaged will still have access to basic communications services. The universal service guaranty in the Communications Act of 1934 has, until now, been interpreted to mean access to "plain old telephone service" (POTS). In the Information Age, we must extend this guaranty to include "plain old digital service." Extending this guaranty means ensuring that new basic digital services are affordable and ubiquitously available. Equity and the democratic imperative also demand that these services meet the needs of people with disabilities, the elderly, and other groups with special needs. Failure to do so is sure to create a society of "information haves and have nots." C. Free Speech: Common Carriage In a society which relies more and more on electronic communications media as its primary conduit for expression, full support for First Amendment values requires extension of the common carrier principle to all of these new media. Common carriers are companies which provide conduit services for the general public. The common carrier's duties have evolved over hundreds of years in the common law and later in statutory provisions. Common carriers have a duty to: oprovide services in a non-discriminatory manner at a fair price, ointerconnect with other carriers, and oprovide adequate services The public must have access to digital data transport services, such as ISDN and ADSL, which are regulated by the principles of common carriage. Re-shaping common carriage duties for new media environments is of critical importance as mass media and telecommunications services converge and recombine in new forms. Telephone companies, the traditional providers of common carriage communications services, are moving closer and closer to providing video and other content-based services. By the same token, cable television companies, which have functioned as program providers, are showing great interest in offering telecommunications services. In what is sure to be an increasingly complex environment, we must ensure that common carriage transport is available to those who want it. Unlike arrangements found in many countries, our communications infrastructure is owned by private corporations instead of by the government. Therefore, a legislatively imposed expanded duty of common carriage on public switched telephone carriers is necessary to protect free expression effectively. A telecommunications provider under a common carrier obligation would have to carry any legal message regardless of its content whether it is voice, data, images, or sound. For example, if full common-carrier protections were in place for all of the conduit services offered by the phone company, the terminations of "controversial" 900 services such as political fundraising would not be allowed, just as the phone company is now prohibited by the Communications Act from discriminating in the provision of basic voice telephone services. As a matter of law and policy, the common carriage protections should be extended from basic voice service to cover basic data service as well. D. Privacy With dramatic increases in reliance on digital media for communications, the need for comprehensive protection of privacy in these media grows. The scope of the emerging digital communications revolution poses major new challenges for those concerned about protecting communications privacy. Communication which is carried on paper through the mail system, or over the wire-based public telephone network is relatively secure from random intrusion by others. But the same communication carried, for example, over a cellular or other wireless communication system, is vulnerable to being intercepted by anyone who has very inexpensive, easy-to-obtain scanning technology. As such, access to robust, affordable encryption technology will be critical to enable people to protect their own privacy. Government controls on encryption systems, whether for law enforcement or national security reasons, raise grave constitutional issues and could undermine individuals' ability to protect the privacy of personal information and communications. III. Public Policy Options One clear sign of progress in the communications policy debate is that there is widespread consensus that something must be done about infrastructure policy. Here we consider three key policy options in relation to the core policy goals which have been outlined above. A. Long Term Modernization Through Regulatory Relief One technology has, over time, become synonymous with multimedia information and entertainment services: fiber optics. Infrastructure proposals often highlight fiber optics as a key component. Yet the cost of fiber is high. As a result policy makers are considering incentives to encourage industry to make this large investment. Many suggest, for example, that the relaxation of cable-telco cross-ownership ban and elimination of InterLATA line-of-business restrictions will promote long term investment in a broadband, fiber optic infrastructure and lead to a greater variety of services for consumers. Rep. Rick Boucher (D-VA) and Rep. Michael Oxley (R-OH) recently introduced HR. 1504, which would lift the cable-telco cross-ownership ban. The key question to ask in evaluating such proposals is whether the regulatory relief requested by the Regional Bell companies will actually further the communications policy goals such as diversity, common carriage and universal service. Supporters of sweeping regulatory relief, or policy to promote long-term infrastructure investment, however, often make the mistake of making a particular technology a policy goal in itself. In evaluating these proposals, it is important to recognize exact what fiber offers and what it doesn't. o Fiber optics is not necessary to deliver digital, information age services. Fiber optic cable is a major technological advance that enables many exciting new services and applications. However, it is not necessary to install fiber optic cable in order to offer advanced information services. Such services can also be carried over copper cable or other transmission technology such as wireless digital radio networks. o Fiber optics does not guaranty interactive services Fiber enables the transport of vast quantities of information from one point to another, over very long distances. The primary distinction between fiber and copper cable is in the amount of data that can be carried and the distance between endpoints. However, the raw capacity of fiber does not guaranty that it will be possible to run interactive services, such as educational, health care, information, or telecommuting applications. Interactive services require network switching in addition to fiber optic cable. Thus, while network evolution towards fiber appears likely, the availability of fiber will not ensure that public interest needs are met, nor must we wait for ubiquitous fiber to deliver public interest benefits to users. For example, simply allowing local telephone companies into the cable television market may do nothing more than create a second cable television network. While prices for cable service might fall as a result, the network would be no more open or diversity promoting than is the cable network against which it is competing unless switching capacity is also provided. As policy makers consider long term changes, careful thought should be given to the network functionality likely to result, not just the type of technology that will be put into the network. B. The NREN as Government-funded National Information Infrastructure? Some suggest that the NREN will gradually evolve to be the whole national information infrastructure. The NREN, and the Internet as a whole, will no doubt continue to be a source of innovation and will remain an important information resource for its users. As such it is a vital part of the emerging national information infrastructure. However, it is only one part of the growing network of networks. Two key factors raise questions as to whether the NREN is suited to become the whole infrastructure: 1. The government cannot afford to build an entire national information infrastructure. Moreover, ignoring the investments already made by the communications industry would be a massive waste of resources. 2. The prospect of a government-run communications infrastructure raises serious First Amendment concerns. Rust v. Sullivan affirms that the federal government can establish content-based restrictions on speech when the speech takes place in federally-funded facilities. The new electronic public forum will be the site of political, cultural, and personal discourse. Subjecting all electronic speech to government control would be antithetical to all of our political traditions. Though the NREN will not and should not be the whole infrastructure, it does serve a vital role in serving the research and education community, and promoting public access to information. C. The Open Platform Approach: Near Term Public Infrastructure Modernization EFF believes that the way to promote diversity, common carriage, and an expanded notion of universal service is to start off the Information Age by making digital service widely available and affordable for all Americans. Digital service will be an Open Platform that will help to realize the democratic potential of Information Age technology. Open Platform service will enable the broadest possible segments of the population to participate fully in the information and communication revolution that is occurring. What is critical is that individuals and small organizations be able to participate both as a information user and publisher. Federal Policy Initiatives In order to make digital services uniformly available throughout the country, Congress ought to set guidelines for tariffing, deployment, and interoperability of digital services. While some Regional Bell Operating Companies are considering making digital connectivity available to the mass market, others have failed to offer the benefits of digital service to their customers altogether. At a federal level, Congress can declare that affordable, widely available digital service is an important national goal. While respecting State's traditional prerogative in setting local service prices, the Congress and the FCC have an important role in insuring that services reach the entire population in an equitable fashion. Rep. Ed Markey will be introducing legislation to this end in the coming months. State Policy Initiatives State policy makers, both regulators and legislators, also have a vital role in making digital service available to the residents of their states. The success or failure of digital services for the mass market (both residential and small business) will be determined by factors which are within the control of the state policy maker: mass market pricing and widespread deployment. Open Platform tariffs are by no means the final goal of infrastructure policy, but they are a vital first step. Waiting for the market to decide which services to offer, or for the ubiquitous deployment of interactive broadband services in ten to thirty years, would be a fatal mistake for those who care about diversity, access and free speech. If we wait, these bedrock principles will be lost in a sea of video-on-demand and home shopping. V. Conclusion The rapid pace of technology and market developments poses a great challenge to the public interest community. EFF has spent the last year studying infrastructure issues and developing positions which are the basis of our advocacy efforts. Though we believe that we have made some important contributions to the debate, our views form but one part of the overall public interest agenda. We write this paper in order to open up a dialog with other organizations which are concerned about the communications policy goals outlined here. Our hope is that such a dialog can help us all move toward a set of common goals and find avenues for collective advocacy. For more information contact: Electronic Frontier Foundation 1001 G St, NW Suite 950 East Washington, DC 20001 eff@eff.org