The right of all Americans to originate content is explicit in section 706 of the 1996 Telecom Act, but the FCC's enforcement procedures miss the point and elevate one-way communications to an undeserved status.
Supposedly, the United States is committed to deploying a communications infrastructure in which a consumer's capability to originate mixed-media content ranks equally with the consumer's capability to receive the content. According to section 706 of the 1996 Telecommunications Act of 1996, "The [FCC] and each State commission...shall encourage the deploy ment...of advanced telecommunications capability...defined...as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology."
The law's clear intent is parity between the capabilities to originate and receive content. If there is an emphasis, then "originate" has priority since it is mentioned first. Unfortunately, advanced communications being deployed today shortchanges the consumer's capability to originate content. Apparently, service providers and government agencies see origination as unimportant and not as a national policy goal to be respected.
For example, the "A" in ADSL stands for "asymmetric," meaning ADSL (asymmetric digital-subscriber-line) users originate content at rates far less than 20% of the receive rate. Cable-TV providers of Internet access have a similar imbalance. In August, InterMedia@ Home created an enormous gap between its customers' ability to originate and receive content by imposing a limit on customers' origination speed. Before the limit, the original rate was about 30% of the receive speed. After the limit, the ratio fell to less than 5%--no problem for people who confine their Internet activities to Web browsing, but a crippling blow to others who might want to send family pictures to a relative or blueprints from work to a remote location.
As for state commissions, not one has made an issue of establishing parity between originating and receiving speeds, and Congress has not done so, either. Last summer, the House introduced three different bills where the proposed language allowed receiving speed to be infinitely larger than origination speed. Thus, section 706's goal of an originate/receive parity is invisible to industry and government.
If the word "originate" had not been in the law, then communications infrastructure could be seen as an entertainment network offering centralized programming just like TV broadcasting and radio have since the 1950s. One industry leader, Leo Hindery, the former chief of AT&T Cable believes the past is the way of the future. Speaking at the Harvard Business School Club of New York in November, he said, "The huge winners in this...are...[cable] content providers. A pattern of centralized control, however, where the power to communicate resides strictly with network controllers and media owners, does not represent the communications infrastructure envisioned in section 706. "Originate and receive" means the power to communicate is divided between end users and network controllers.
This division is consistent with American political tradition, which has always put checks on centralized control. The tradition is reflected in the public sector--where power is parceled to various branches of state and federal governments--and in the private sector, where boards of directors apply oversight to corporate executives. Therefore, an "advanced telecommunications" infrastructure giving end users a strong right to originate content is no departure from American political values.
The end-user/network-controller dichotomy was articulated by George Gilder seven years ago in an interview with Wired magazine: "The trouble with top-down centralized technologies, which the telephone and the TV represent, is that they are dumb equipment attached to complex switching systems and broadcasting technologies. The chief virtue of distributed intelligence [advanced technology] is that the network can be dumb and the control of it can be distributed to smart users. That means that technologies are much more servants than rulers of your life."
Even earlier than Gilder's comments are those expressed by the Electronic Frontier Foundation (EFF) in FCC Docket 87-266, when the agency was considering rules for video dial tone. The EFF's comments apply equally well to the DSL and cable networks being deployed today: "Although the Commission has announced a goal of enhancing diversity of information sources, the...[new networks] may shoulder out one of the most vigorous sources for that diversity: noncommercial and individual information providers. The Commission relies on the market to allocate access opportunities, but experience demonstrates that the market does not necessarily provide equitable access for all those who wish to speak via electronic media."
The valuable insights of Gilder and the EFF make the advantages of two-way communications clear. The market for distributed intelligence is enhanced; remote medical diagnostics are feasible; the archival and property records of museums, libraries, hospitals, and county recorders can be quickly shared with appropriate parties; and distribution of cad/cam materials is easier. Human communications and the educational opportunities achieved through bidirectional interactive video services are well beyond what is provided through Websites and chat rooms. (Nothing is more natural than wanting to put a face on the voice that we hear and the words that we read.) Furthermore, noncommercial and individual information providers are important to maintain diversity of information sources.
These functions support the intent of section 706, that end users have a strong right to originate content, a consideration missing from the Federal Communications Commission's (FCC's) recently announced plan to enforce section 706. In CC Docket 99-301, "Local Competition and Broadband Reporting," the agency says it will collect data from all service providers in the country to monitor the deployment of advanced telecommunications infrastructure. But the collection procedure is misdirected toward an idea named "one-way broadband" communications, which the agency says "would accommodate the needs of customers who make only small transmissions upstream, e.g., please send me the movie Saving Private Ryan, but who receive large transmis sions...the full-length color movie with movie-theater clarity." The agency defines one-way broadband in technical terms as anything carrying bits "in excess of 200 kbits/sec in one direction but not both."
The effort to define one-way broadband and to collect its data is mistaken policy and is useless to enforce section 706 because 0 kbits/sec in one direction and 200 kbits/sec in the other fits the definition. Collecting information on one-way broadband services measures how well advanced telecommunications serves mass popular culture but is unrelated to end users having a strong right to originate content. Also, since one-way broadband is a concept completely absent from section 706, it does not give the agency a basis to collect such data.
Far more important is the agency's plan to enforce section 706's core language, "originate and receive," which the agency defines as "full broadband...[a] carrying capacity in excess of 200 kbits/sec in both directions." This language is faulty, too, because it does not reflect the law's fundamental notion of parity. An originate speed of 200 kbits/sec and a receive speed of 1 Mbit/sec constitute "full broadband" but do not represent equivalent capabilities nor the sharing of power between end users and network controllers. Also, the agency linked "full broadband," not to the ideas of progress, human expression, or economic functions but to a pesky legal requirement. The agency says nothing more than, "Our interest...stems from section 706 of the 1996 Act, which directs us to determine regularly whether full broadband services are being deployed in a reasonable and timely fashion to all Americans." Thus, the FCC missed a chance to convey its understanding of why substantive two-way capability is a positive attribute in communications systems.
What's next? * Bidirectional delivery of mixed media should be a natural progression from the telephone conversations that everyone has; but few people in government or industry want to see an originate/receive parity enforced. It could be achieved with a national door-to-door fiber network, but that is years away because parity's only guardian, the FCC, long ago turned thumbs down on that network, a major error in infrastructure policy. But this does not mean that the law should be amended to remove the word "originate." On the negative side, it serves to remind that government and industry have not delivered to the nation what was promised. On the positive side, the language shows the law's true intent-that the needs of individuals should be a welcome and permanent force shaping the deployment of advanced telecommunications technology.Stephen N. Brown writes on public policy in telecommunications. He can be contacted by e-mail at [email protected] or telephone: (615) 399-1239.