Comments on NPRM for FCC Docket 17-108

Sun 16 July 2017
Submitted by W.J. Krause, Electronics Engineer, Boulder, CO USA 
(Opinions expressed below are solely my own as an individual citizen)

First, I strongly support the regulatory framework for Broadband Internet Access established by the FCC's 2015 Order "Protecting and Promoting the Open Internet" (FCC 15-24, aka the Title II Order).   In that Order, the Commission finally reached the long overdue conclusion "that broadband Internet access service is a telecommunications service subject to [FCC] regulatory authority under Title II of the Communications Act regardless of the technological platform over which the service is offered."  I firmly agree with the arguments and descriptions in the Commission's 2015 Order section VI. B and C, especially paragraph 330, which states,  it is more reasonable to assert that the "indispensable function" of broadband Internet access service is "the connection link that in turn enables access to the essentially unlimited range of Internet-based services." "

Second, I believe the establishment of broad, yet enforceable national rules for Open and Fair Access to the Internet is clearly required given the intertwined business and ownership relationships between telecommunications companies and content/entertainment companies.   Fair and Open Internet Access must be protected and guaranteed by the government just as access to any other critical national infrastructure such as the interstate electric power gird, our U.S. Mail system, and our national highway system.  The FCC initiated the "Clear, Bright-Line Rules" for an Open Internet in 2010 and again strengthen them in 2015 to address the dangerous trends already evident in the behaviors of Broadband Internet Access providers.  I believe these existing rules are in the best interests of American citizens and businesses and do not discourage investment in broadband Internet Access.  

In light of the results of the judicial review of the FCCs 2010 rules for an Open Internet, reversing the 2015 Title II Order would leave the FCC with little oversight authority over Broadband Internet Access services.   In my opinion,  this would prevent the Commission from fulfilling its purpose (and implied responsibilities) defined by Congress "of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, [and] for the purpose of promoting safety of life and property through the use of wire and radio communication." (47 U.S.C. § 151)  We should also recall that the Internet was created by U.S. Government research projects, and thus inherently belongs to the people.  I believe the government, and specifically the FCC, has an obligation to exert regulatory oversight as necessary to ensure open and fair access for all Americans.  

I would like to address questions raised in paragraph 27 of new Notice of Proposed Rulemaking (Docket No. 17-108).  I am an electronics engineer who has spent nearly my entire career designing equipment for wired and wireless access networks used by the telecommunications industry to reach subscribers, which includes Internet Access.  Drawing on my extensive knowledge of the technical functions and capabilities of modern Access Networks,  I am certain that Broadband Internet Access Service over facilities controlled by the service provider meet the definition of a "telecommunications service" rather than an "information service" per the definitions provided by Congress in the Telecommunications Act of 1996, Pub. L. No. 104-104, § 3(a)(2), 110 Stat. 56, 58-60 (1996), codified at 47 U.S.C. §§ 153(24), 153(50), 153(53).   

If we compare the characteristics of the PSTN and the public Internet, the only reasonable conclusion is that they both provide similar telecommunications capability to the subscribers and fulfill similar, often interchangeable, telecommunications functionality and should accordingly be classified the same way.  In my opinion, the classification of PSTN Access as a "telecommunications service" strongly regulated under Title II while the primary classification of Internet Access (prior to the 2015 Order) was as an "information service" with very little regulation under Title I has been incorrect from the start.  Arguments used in the past by the Commission to justify classification of Broadband Internet Access service as an "information service" that is somehow fundamentally different from PSTN Access are illogical.  Both networks are global in scope and enable subscribers to communicate directly between any end point of their choosing, and require the co-operation of multiple and typically independent network service providers. Access to both networks is widely offered to the public for a fee by multiple access providers over multiple transmission technologies.  Both networks have well defined interfaces that enable a wide variety of subscriber-owned equipment to be connected.  Both networks are capable of carrying a wide variety of information types, which are fundamentally determined by the subscriber and not the network.  Both networks transparently deliver subscriber-supplied content between the endpoints operated by other parties essentially unchanged.  Both networks are evaluated by subscribers on the basis of availability and end-to-end transmission quality.  The access function for both networks would be of little value without the ability to reach third-party end points not directly connected to the local access service provider (i.e. the value is rooted in the connection to the wider public network).  The primary differences in the two networks is that their transport mechanisms were optimized for the best performance and efficiency with either voice traffic (PSTN) or data traffic (Internet), resulting in different internal technical architectures and different performance and efficiency characteristics for specific traffic types.  

The information content related examples provided in paragraph 27, including "posting on social media" and "reading a newspaper's website" are NOT examples of an "offering of" the Internet Service Providers (ISPs).  These examples are "information services" offered by third-parties and carried over the Internet and through the ISP's "telecommunications services".   In fact, such information services are now typically carried over end-to-end encrypted data transport streams (TLS) and thus appear as incomprehensible noise while on the ISP's Internet Access network equipment.  It is illogical to attribute an "information service" as "being offered" by an Internet Access provider or ISP who has no visibility or access to the information itself.  Attribution of the "information service" to the third party is clear when seen from the viewpoint of the user (who associates the information service with a third-party website), the viewpoint of the Internet Access service provider (who is blind to the content of the encrypted information transported between the user and the third-party server), or the viewpoint of the third-party "information service" provider (who pays for the server equipment and Internet Access from yet another party, and generates revenue based on the value of the "information service" they created and operate).  

Paragraph 28 of the new Notice of Proposed Rulemaking, asks "Is a consumer capable of accessing these online services without Internet access service? Could a consumer access these online services using traditional telecommunications services like telephone service or point-to-point special access? "  The answer is clearly yes, although the performance of many services would be significantly degraded.  Such information services can be provided and were provided using transport over the PSTN with dial-up modems or ISDN terminals prior to the widespread availability of Internet Access.  I used just such services from CompuServe Information Services in the mid 1980's and accessed them purely over the PSTN.  Information services in general are in no way inherently tied to Internet Access.  

I argue that users consider themselves connected to the Internet regardless of whether their Internet Access is provided for free at a coffee shop over a Wireless LAN, or through their smart phone over the cellular data network, or at their home via a broadband DSL modem.  Users have no significant reliance on information services from the Internet Access service providers.  Today, even DNS is frequently configured to use third-party services such as OpenDNS.  In fact, best security practices now recommend that mobile users tunnel their information using encrypted VPNs to deliberately avoid any information interaction with the local Internet Access provider's network beyond the routing of IP packets to the Internet, thereby making it impossible for the Internet Access provider to cache, firewall, modify, or monitor the user's traffic in any way.  

The analysis presented in Paragraph 29 of the new Notice of Proposed Rulemaking that Internet service providers do not appear to offer "telecommunications" is baffling and incorrect.  Past arguments that DNS, email, or caching services are not separable from the transport functions of Internet Access ignore the reality that both the PSTN and Internet networks provide similar ancillary information services.  The fact that PSTN Access service is also bundled with telephone directory services, voicemail, and speed dialing doesn't redefine PSTN access as an "information service".   Users clearly specify the points that they wish to communicate with on the Internet using the domain name and/or IP address resolved or retrieved by their local web browser software, just as a PSTN user presses a speed dial button on their phone to choose the endpoint for their call.  There is no requirement for a telecommunications service user to understand the physical location of the destination or information or the routing points on the network, which is exactly the same for the PSTN where a phone number only specifies the final end point (also not unique) rather than the network routing.  Broadband Internet users do not pay their Internet Access Provider for the ability to retrieve information contained on the World-Wide-Web.  Users clearly understand payments for that information flow to the owners of the websites and services with which the users interact, either by giving their attention to the sponsored advertising on the website or by direct subscription fees (not paid through an ISP).  

The Internet has changed significantly in both its use and performance during the 20+ years since the writing of the 1996 Telecommunications Act.  Today many subscribers, myself included, rely on our Internet Access for critical services such as our access to the PSTN for telephone service, carriage of business and banking documents and transactions, access to public news sources, and even to perform our job duties for our employer.   The value of the Internet today is so great that many people, including myself, would rather give up their telephone network access than give up their Internet access, when comparing the disruption to their daily lives the loss of access to either would cause.   With regard to paragraph 33, in a perfect world, Congress should create new policy and legal frameworks for the FCC oversight of Broadband Internet Access Service that preserve the strengths and addresses the weaknesses of the Broadband Internet Access service market.  To implement the rules needed to preserve the Open Internet, it was unfortunate that FCC was forced to select from the older tools in Title II, which were never written with the modern Internet in mind.   But in the absence of new legislation, the FCC's 2015 Order was the best way to provide for the greater good of the country by ensuring a Fair and Open Internet.   

Finally with regard to paragraph 34 of the new Notice of Proposed Rulemaking, today we need government regulatory oversight of Broadband Internet Access as much or more than existing oversight of the telephone network (PSTN).  The Internet Access marketplace suffers from the same lack of necessary conditions for an effective free-market that led the government to originally regulate telephone network access carriers.  Fundamentally, both markets have huge barriers to entry that prevent effective competition in many locations.  The largest suppliers benefit greatly from economies of scale and they leverage their dominant position in supplying other services, such as cable television which are frequently geographic monopolies created by local franchise agreements, to create bundled pricing.  Any new entry attempting to provide competitive Broadband Internet Access service requires huge capital outlays for initial build-out and must somehow overcome the difficulties in securing scarce resources, such as rights-of-way for deploying wired access technologies and access to RF spectrum licenses for wireless access technologies.  We've already seen significant consolidation of companies offering network access in both the telephone and Broadband Internet Access markets.  The de facto geographic monopolies that exist in some areas for Broadband Internet Access service mimic those long present for PSTN Access service and are clear indicators of the need for regulation to preserve the widespread benefits of an Fair and Open Internet access for the entire country.  

End of Comments  - W.J. Krause - FCC Docket 17-108