In defense of openness

Progress and Freedom Foundation president Ray Gifford takes issue with my advocacy
of broadband openness.  Ray is a very knowledgeable commentator on
technology policy, and a former state public utility commission chair,
so I take his objections seriously.  His argument is that even
though “openness” is a nice thing, regulatory intervention to require
it would have costs and is “premature, at best.” 

This misses the thrust of my argument.  Openness isn’t some
abstract principle invented by Larry Lessig to justify new regulation;
it’s a particular technical and policy framework that is deeply
embedded in the Internet and existing FCC rules. The Internet is open
not through government mandates, but because it is architected to avoid
the need for them.  Companies can compete vigorously, because no
matter how successful they become, others can still overtake

That vital, competitive, unregulated space, however, rides on top of
physical transport networks subject to very different economics. 
At best, the broadband last mile is a duopoly.  For many Americans
like myself who can’t get either cable modem or DSL service, it’s a
monopoly.  I hope and expect that will change, largely due to
innovation in wireless, but let’s not kid ourselves.  It will be
years before any alternate broadband access platform has the reach and
capabilities of cable or telephone wires. 

The genius of the Internet’s design is that it abstracts out that
physical infrastructure.  The Internet starts with IP, which can
run on any digital network.  The genius of the FCC’s Computer
Inquiry rules, first adopted in their present form in 1980 and embedded
in the 1996 Telecommunication Act, is that they adopt the same
approach.  Underlying basic services are differentiated from
competitive information services.  Bottleneck transport networks
must provide open interconnection and must not restrict user choice of
applications, devices, and content. From there, everyone can compete on
a level playing field.

It’s important to understand that this open connectivity model is
fundamentally deregulatory.  It’s not a new form of regulatory
interventionism, as Gifford implies.  It’s about opening up new
minimally regulated spaces for competition and innovation on top of the
bottleneck physical infrastructure.  That competition and
innovation, in turn, will stimulate deployment and competitive entry at
lower levels.  Hence, the dynamism of the Internet spurred cable
operators to invest in building a second broadband access platform into
the home, which in turn forced local phone companies to invest in

Where Gifford fears new regulation, I fear abandonment of a model that
has proven extraordinarily successful.  The argument incumbents
are making today is that the Internet model is a failure.  The
only business model that will work for broadband, they claim, is the
cable TV model: one provider controlling both access and content. 
Without incentives to create such walled gardens, they say, they won’t
invest in building out their infrastructure. 

I’m not ready to pick winners yet.  I think the FCC should
maintain and adapt its long-standing open connectivity model for the
emerging broadband world.