Digital Broadband Migration Conference
The Digital Broadband Migration (DBM) Conference at the Silicon Flatirons Center at the Colorado University Law School is a pretty big deal. In the 2003 gathering, an unknown academic named Tim Wu presented a paper on his quirky notion of “net neutrality” that has captured the imagination of Internet regulation activists to this day. Wu was back this year with an acknowledgement that he owes his career, in a sense, to Silicon Flatirons. The issue of how to enshrine net neutrality in law remains unresolved.
This year’s conference featured the theme of going back to first principles now that we have a new administration in Washington with a new agenda. So there were panels on the basic issues: innovation, equity, security, and competition. These issues are framed in the general context of facilitating the transition from the old “siloed” world of the past – represented in the Communications Act as a series of service-dependent titles – to the brave new world of Internet Protocol (IP) everywhere.
Innovation is the payoff of the IP transition because the Internet radically accelerates the creation of new services. In the old days, each service needed a whole new network and a whole new regulatory apparatus, while today a service is just an app. So this is an incalculably huge change and an enormous benefit.
The DBM presentations dealt with the legal side of innovation: Daniel Deacon, a fan of Title II regulation for Internet Service Providers, delivered a “what would Scalia do?” argument, while former FTC chief William Kovacic highlighted shortcomings in the approach of regulatory agencies in general.
Scalia’s reasoning in the Brand X case – where he insisted that broadband is unambiguously a Title II service – and in the EPA case – in which he charged the regulator with exceeding its authority – have been used by advocates on opposite sides of the net neutrality issue to bolster their claims. If Scalia argued for Title II with forbearance in Brand X, that’s pretty close to where the Wheeler FCC ended up. But the majority opinion in Brand X enables the new FCC to reverse the Wheeler order.
Kovacic highlighted shortcomings in the regulatory mission with respect to innovation, such as the fact that regulators appear to be graded by fines issued and wrists slapped more than services created. If we evaluated the 2015 Open Internet Order on the basis of innovations stimulated, it probably wouldn’t get a high grade: Since February 2015, the rich have gotten bigger and richer, and there haven’t been any new developments in Internet services to write home about, with two notable exceptions: Pokèmon GO, which had been in the works for a decade, and zero-rated services.
It’s also worth noting that all four of the big national wireless carriers now offer unlimited data plans again, but they’re not the same as those of the past. Like zero-rating, unlimited data plans were permitted by the refusal of the 2015 Order to make a specific rule. The data plans were also enabled by the discovery on the part of carriers of a way to deal with persistent congestion associated with unlimited data plans: they actually have caps, but instead of cutting service off when the customer exceeds the cap, the carrier throttles their data streams.
So unlimited data plans aren’t exactly unlimited, and the “no throttling” rule isn’t as “bright line” as it might be. So this is an innovation in pricing enabled by an innovation in regulation, in a sense. There are better ways to do this, but their regulatory status is uncertain.
The first presentation on equity – by former Clinton Administration Internet wonk Karen Kornbluh – put broadband in the context of the sentiments that elected President Trump. The non-college educated ethnic voters who elected Trump are among those left behind by NAFTA and similar measures. So Kornbluh mused about universal basic income as an equity measure.
Presenter James Speta was more concerned about how to pay for universal broadband service. We currently tax the hell out of both wired and wireless broadband: Federal USF is 16.7%, local service fees range from 15-25%, and wireless broadband tax averages 17% with some fees as high as 25%. When the average sales tax is 7.3%, broadband users are paying a sin tax for a good we want more people to use. This is, of course, utterly insane.
Werbach offered an innovative view: A Capabilities Approach to Communications Equity. Like most people, Werbach wants universal service, and his vision is quite expansive. In essence, he argued for universal adoption with the help of digital literacy programs, more competition among providers, and a greater range of service offerings. He even endorsed “paid prioritization” within limits, which sets him far apart from his party (he’s a Democratic activist and was a member of the Obama Transition Team.)
The commenters on the equity panel – Rebecca Arbogast, Mark Cooper, and Jennifer Manner – were the most engaged of the whole conference. Arbogast brought up the amazing Marshall McLuhan scene from Annie Hall where the expert is on hand to respond to this elucidator, which brought down the house. She works for Comcast and had some important insights from their Internet Essentials program, such as the fact that you don’t know where the gaps in broadband interest are until you try to fill them.
Manner, who works for Dish, correctly pointed out the fact that satellite is available everywhere with improving quality. It’s a perfectly fine starter technology, and in some areas it may be the best alternative.
The security panel (actually called “Risk and Resilience”) was the most challenging of the conference. It featured two scientists – Sam Arbesman and Nicholson Price – law professor Kristen Eichensehr, and computer science professor Nick Feamster. Eichensehr presented examples of organizations retreating from the Internet in favor of low-tech systems such as typewriters, doctors disabling wireless control over pacemakers, and smart cars with their brains turned off to avoid hacks.
The retreat from networking is an overreaction that confuses the roles of the Internet and the Internet device. Properly understood, there is almost nothing the Internet can do – or should do – to protect insecure devices from attack. All the Internet can do is isolate a small set of very specific attacks, such as DDoS attacks from devices with spoofed IP addresses.
The common DDoS attack comes from a botnet of compromised devices, and this is something ISPs can’t handle. Ultimately, we’re going to need AI systems surveilling the web for dodgy behavior, and that’s going to scare a lot of people.
For the time being, we get Internet security from devices with up-to-date patches, as Feamster pointed out. Sigh.
The Competition panel – with Jon Sallet, Fiona Scott Morton, and Wu – was a lovefest for Justice Brandeis, the “small is beautiful” Supreme Court justice of the early 20th century. If this panel had followed the Security panel, the juxtaposition would have highlighted the differences between the world of Brandeis and our world. You can’t expect small Internet companies to deliver secure services and safe devices. Sorry, it’s not gonna happen.
Wu didn’t take part in Brandeis-fest, offering his views of 21st century competition law instead. Like the others, Wu seeks a powerful role for the Antitrust Division of the Justice Department. This means Wu wants to evaluate competition on the basis of “competitive catalysts” that stimulate innovation in adjacent markets and industries. This is an interesting approach, but it’s even less well defined than net neutrality.
The commenters on this panel were very good: DC Circuit judge Stephen Williams and Geoff Manne especially. Judge Williams had to be fairly indirect because of pending cases, but Manne had no constraints. He delivered a harsh but fair critique of the dreamy nostalgia for Brandeis and made a great pitch for Coasian realism.
Broadband markets are genuinely difficult to assess for competition because every examination yields one frame from a movie. Hence, it’s very easy to declare every market broken or thriving depending on one’s general bias.
As with any conference, a great deal of the value of DBM comes from the informal conversations in the hallways and at the reception. This is one of my regular stops and will continue to be one for the foreseeable future. If you’re in Boulder next February and interested in Internet policy, check it out.
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