Surfing The Bit Stream

2010-08-03T12:51:00.000-07:00

ABSTRACT FOR NEW AMERICA FOUNDATION WORKSHOP

The Broadband Act of 2011-12: Designing a Communications Act for the 21^st Century

July 15, 2010

GOALS NECESSARY IN ANY NEW COMPREHENSIVE FEDERAL, STATE & LOCAL REGULATORY REGIME FOR ALL PROVIDERS OF WIRELINE OR WIRELESS COMMUNICATIONS INFRASTRUCTURE FOR THE DELIVERY OF VOICE, VIDEO AND DATA CONTENT

Some thoughts regarding how to survive and thrive through our latest challenge to the field of PEG Access/Community Media Centers management and operations, and their more recent iteration Community Multi-Media Broadband Centers and Community Networks, as we begin the legal and regulatory transition from our present telecom policy structure with it’s separate silos of service classifications and providers to a new broadband policy structure with it’s ‘One Global/Local Network Vision’ of no more borders, no more miles and no degrees of separation.

All voice, video or data content bits and their delivery platforms should ride the interconnected communication network infrastructures’ entire electronic or photonic bit stream like a surfboard rides a wave or a lambda.

All content services need to be delivered, whether using wireline or wireless networks, in a non-discriminatory and equal manner regardless of whether the content is a voice, video or data service affiliated with the owner of the communications delivery network infrastructure or non-affiliated with the infrastructure owner.

In order to stimulate actual competition among content services and providers, there must in fact be a separation of the ownership of connectivity delivery infrastructure and its bit stream from the ownership of the content services and their transporting platform using a non-affiliated network infrastructure and its bit stream for the delivery of the content to its consumers or subscribers.

Bandwidth allocated to the bit steam to be used by the content delivery platform to delivery the bits must be equal regardless of affiliation with the infrastructure owner.

Providers of wireline and wireless content delivery infrastructure and its bit or photon steam delivery service must operate all signal communication networks as Open Platform and Open Access Networks.

Rates for subscriptions to these networks and services shall be available at low-cost and without discrimination and shall be available to all subscribers in either bundled or unbundled packages of voice, video and data services.

Since all providers of connectivity delivery infrastructure and its bit or photon stream either occupy or use Public Rights of Way (PROW) or the Public Spectrum (PS), all levels of governmental authorities have authority under the Public Trust Doctrine and its Fiduciary Responsibility Mandate to require them to manage these public communication assets in the public interest and thus require all connectivity providers to pay user fees for the use of these public assets, and, additionally, for subscribers to pay local, state or federal sales taxes on their use of these voice, video and data services.

2009-11-12T08:23:00.000-08:00

WHITE PAPER ABSTRACT

by Chuck Sherwood

November 11, 2009

Over the past thirty-eight years PEG Access Centers have been established and developed in many towns and cities in the United States based upon the model established by the 1970 cable franchises issued by New York City to Manhattan Cable and TelePrompTer for cable TV service to the residents of the Borough of Manhattan and launched on July 1, 1971. This PEG movement started as a result of the broad consensus beginning in the late ‘60s among academic researchers, public policy advocates along with local elected and appointed officials of the importance and the value of local community communications resources. These resources managed by a Designated PEG Access provider delivering services for the general public, for the schools and for the municipality or county. These services included training in television production, access to field and studio production equipment along with post production editing equipment as well as cablecasting on cablesystem channels set aside for Public, Educational an d Government (PEG) Access television programming.

Historically, the lack of these local community communication resources was due to scarcity of broadcast spectrum and no Congressional law or FCC regulatory requirement for the local broadcasters to provide free channel time, much less free production services for locally produced community programming. This scarcity problem was solved in the late 70’s and early 80’s by the buildout of cablesystems infrastructure with channel capacity for not only the local Commercial and Public broadcast stations along with the early broadcast super stations and the beginning of satellite TV service to cable channels but also for local or regional PEG channels and their video and community bulletin board programming. This technological fix created the solution for this situation and thus the activists and advocates were then able to influence and work with officials on the local, state and federal levels during the communications policy debate and thus move new legislation, laws and regulations into place. The institutionalization of PEG Access Centers began with the FCC’s approval of rules for cable franchise regulations in 1972 but the capstone event for the establishment of PEG Access was the passage of the Cable Communications Act of 1984 by Congress.

Since then these local PEG Access Centers have made the migration from analog to digital production and distribution technology. Many Centers have made the migration from PEG Access Centers to Community Media Centers with expanded services and some are now envisioning and designing the move to become Broadband Media Centers, delivering content to multiple platforms using both wireline and wireless networks. Over the past thirty-eight years they have played a vital role as Community Spaces, which offer a broad range of services focusing on Media Literacy Education, Community Television, Community Radio, Community Computing, Community Broadband, Media and Visual Arts along with Community Performing Arts. They have also broadened their funding sources in order to provide many of these new services through revenue stream diversification thus supplementing their traditional funding source based on the local municipality, county or state granting of a cable license to an operator and receiving cable franchise fees and PEG Access support for this private corporation’s use of the Public Rights of Way.

These Centers have now joined with the other organizations in the community they serve, such as Government, Libraries, Schools, Museums and Hospitals, as Designated Anchor Institutions. In their role as Community Communications and Content Creation Centers, they serve not just the individuals, community groups, nonprofit organizations and local businesses but they also provide services to and work in collaboration with all of the other Local Anchor Institutions. As local and county government begin the telecom planning process for Advanced Broadband Infrastructure and Service, whether using local, county, state funds or federal grants and loans for them, they need to insure that Phase I of any plan needs to work with and connect all of these Anchor Institutions. This telecom planning process also needs to be comprehensive, coordinated and collaborative.

Eventhough one of the original missions of the Access Centers, Institutional Networks (I-Nets) and PEG channels was and still is to serve as an Electronic Public Forum for Free Speech on the Public Access channel and for local Community Communications between Government and School Districts with the residents they serve, these resources and services have now been understood to have a broader impact on the community and its community, educational and economic development in a 21^st Century Information and Innovation Economy. Many local governments and school districts have used their I-Net to enhance their ability to delivery voice, video and data services and lower costs. Over the past ten years with the introduction of computers and the Internet, Access Centers also function as providers of Media and Content Creation knowledge, skills and experience thus playing a vital role in Workforce Development and as an important Pathway to Learning for Higher Education in many fields of study. These Centers and their Public Spaces are also part of and play an important role in the rapidly expanding Creative Industry and Economy in the United States.

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

2009-02-07T12:10:00.000-08:00

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

By Chuck Sherwood

For those of us who have been around since the beginning or so it seems, I keep wondering when we, on the public interest side, will finally develop strategies that move us from always being on the defensive to going on the offensive. It all started in the mid ‘70s, the glory days, where the 1979 Mid West Video decision by the Supreme Court forced the cable industry into to the hand-to-hand combat of the ‘80s Cable Wars. That was the last win for the public interest as we witnessed the Cableco[1] manipulations of Congress in the ’84 and ’92 Acts[2] which culminated with the passage of the “grand compromise” better known as the Telecommunications Policy Act of 1996. In the past twelve years, we have been rolled by telecom “corporate interests,” their highly paid lobbyists and lawyers as well as their Astroturf [3] groups and so called academic think tanks. We have been rolled over in Congress, in the FCC, in the courts and in one state legislature after another. The most recent example is in the 6^th Circuit Appeals Court upholding of the FCC’s March 5, 2007 Cable Franchise Order giving Telcos franchises in 90 days.

There are lots of reasons why the industry has been so successful and it’s more than their use of money to buy political influence. Telco’s understand that it’s all about the language and how you use words, whether as part of a public relations pitch which some would call propaganda campaigns or in legal drafts. Waged in the media which telecom conglomerates also control or as part of legal briefs where words are carefully parsed, we find distorted definitions and meanings designed to manage judges decisions, which, these days, more often support corporate over public interests.

Let me give you a couple of examples of the industry’s reasoning processes that justify recent legislative decisions—

(1) Preempting Local Franchising Authorities (LFAs) with either national or state franchising will foster competition which will lower subscriber rates and create jobs,

(2) LFAs are “barriers to entry”. LFAs make “unreasonable build-out requirements and demands for PEG Access” and finally

(3) how about at&t’s claim that they do not need a franchise since their U-verse service is not a Title VI cable service but an “IP service”, thus subject to Title I, Information or ISP classification.

As has now been documented, by both NATOA and Alliance for Community Media Surveys to assess the impact of state franchising, not only have these claims proven not to be true in any state that passed legislation preempting local franchising processes, but there is still no consensus on whether carrying video programs on twisted pair phone lines and juiced-up DSL is an “Internet Protocol” or “Cable Service”.

Keep in mind that it’s not just the usual corporate opponents of municipalities, counties, states and Public, Education and Government (PEG) Access organizations who frame issues in favorable, pro-industry language. Sometime our allies in the consumer, civic and media reform arenas also undermine LFAs’ authority—not with malice, but from ignorance of telecom history and the land-use laws that govern the granting of franchises. The key to ensuring deployment of next generation, last mile, telecom infrastructure is the ability of local governments to manage Public Rights of Way (PROW) [4] for the benefit of citizens. We see property taxes rise for public communications services (for education, police, fire, emergency management, etc.) as the telecom industry orchestrates legal exemptions from paying its fair share for use of public land. Year after year we watch the original sources of franchise revenues designed to protect the public’s communications interests evaporate due to the careless use of language by both protagonists as well as antagonists.

For example, any talk of migration from analog to digital or IP services is a word game that plays into the hands of the industry. As I recently heard in a discussion on National Public Radio, one of the media reform folks claimed that the Internet is a “publishing” tool and not a “communications network” for the delivery of voice, video and data services. Once again, this activates the language game since using the term “publishing” triggers the old cable companies’ claim in the 80’s, that they were “electronic publishers” with the same First Amendment right as newspapers. Obviously, newspapers aren’t regulated—so if cable is a newspaper—voila, government can’t collect a fee for use of PROW. The cable industry actually claimed that it’s infrastructure was no more than a newspaper stand using the sidewalk for free.

Many people think that American municipalities are new to the management of Public Rights of Way (PROW) when, in fact, local governments have a fiduciary responsibility to manage public land for the benefit of citizens and have been doing so for years. My recollection is that this responsibility goes back to English Common Law and has been part of American Common Law practice since the founding of the Nation. It’s also important to note that since the early ‘80s, municipalities managed on-going financial crises with the down turn in the national economy and the launching of anti-tax campaigns. Local governments consistently needed to figure out how to deliver services with constantly shrinking revenues because they are required to operate within budget. Unlike the private sector, local governments can’t wily, nilly raise rates for essential services nor, like the federal government, can they operate with trillions of dollars in deficits.

Let’s not forget what happened after the passage of the ’96 Telecom Act, which at the request of the industry classified cable modem or Internet (ISP) services as a Title VI, Cable Service. As soon as the City of Portland attempted, in its transfer of ownership proceedings, to require the same open access provisions for unaffiliated ISP services that had been imposed by the Act on Telco’s for use of their network by Competitive Local Exchange Carriers, Cablecos began the process of changing the cable modem classification from Title VI, Cable Service to Title I, Information Service. As a result, LFAs didn’t just the lose regulatory authority but it also lost some $500,000,000 in new franchise fees that were just beginning to be collected from the provision of ISP services. Once again the FCC, the Appeals Court and then Supreme Court, in the Brand X decision, upheld corporate over community interests.

Since LFAs have a fiduciary responsibility to citizens, how can they continue to permit providers of voice, video and data services to use PROW without requiring fees for that use, regardless of the classification of the service provided—Title I, Information or ISP Services, Title II, Telecommunications Services, or Title VI, Cable Services. It makes no difference how services are classified, they’re still carried on infrastructure located on public land and so must pay for that use. As an engineering friend told me, telecom infrastructure is neutral; it carries whatever you put on it. Telecom owners seeking to snivel out of legal agreements invent service classifications as a basis for land lease compensation.

Unfortunately, the easy explanation for this regulatory mess has to do with the history of development and delivery of utility and broadcast services—from telegraph to electric to telephone to radio to television to cable, satellite and cell phones and then finally to so-called broadband services of voice, video and data—which many refer to as the Internet. All of these utility and broadcast services use either the PROW or the Public Spectrum. Each of these services were given special consideration to help create viable business entities and to foster competition. Each of these services, provided by different companies, used delivery networks with differing technologies, capabilities and limitations. Regulations also considered which services were essential and thus subject to different regulation regimes and whether they fell under the purview of local, county, state or national government. Then there was the consideration of which service was intra-state or interstate and who had regulatory authority. In my opinion, these layers of definitions, classifications, issues and concerns create what I will call “Barriers to Common Sense”

My challenge is directed to the national associations that represent the interests of the LFA’s, their attorneys, advisers, as well as members of NATOA, and especially our sharp attorneys. Come up with a legal construct based upon the understanding that in a 21^st Century Digital Broadband Universe voice, video and data services are just data bits delivered to a display device, regardless of whether they are delivered on wireline or wireless networks. Since all providers of broadband services must use either Public Rights of Way or Public Spectrum as pathways of delivery then all providers must pay fees to LFA’s. In the case of wireline services all providers would pay for the use of the PROW and thus make the LFAs whole as the managers of public lands. LFA’s then assume the fiduciary responsibility for managing and dispersing, for the community’s common good, revenues generated from public right of way use. In the case of wireless providers using Public Spectrum to deliver broadband services, fees would be paid to the LFA based upon subscribers’ zip codes, which conform to the geographic boundaries of LFAs. If you’re in the broadband delivery business, wired or wireless—you pay local franchising authorities—it’s the only fair way to make sure the public is compensated for use of public assets.

Now, as we head toward the 2008 Presidential election, facing the latest economic downturn caused by the credit, subprime mortgage and oil prices crises, it’s estimated that state and local governments around the country are going to lay off some 45,000+ employees. Can you imagine what a difference there would be on state, county and local government budgets if the public was being fairly compensated with the billions of dollars owed them by the telecom industry for Internet service franchise fees? We’ve been playing this negative-sum telecom word game for thirty years. How much longer can we expect the public to subsidize the telecom industry bit by bit?

Published in the NATOA Journal, Fall 2008 issue.
____________________________

[1] Cableco refers to the cable companies / industry

[2] The Cable Communications Policy Act of 1984 and the Cable Consumer Protection and Competition Act of 1992.

[3] Astroturf or Astroturfing in American English is a neologism for formal public relations campaigns in politics and advertising which seem to create the impression of being spontaneous, grassroots behavior, hence the reference to the artificial grass Astro Turf.

[4] Public right of way (PROW) is the 9 feet of land on each side of every road in the

U.S.

reserved as utility corridors, which are purchased and maintained with tax dollars. Arguably, PROW is the most valuable real estate in the nation, granting private companies access to the marketplace in every town where a franchise is awarded. Franchise fees, PEG access and Institutional Network requirements codified the most fair and consistent form of compensation so communities benefit along with the franchisee from the success and growth of new technology and evolving innovation.

2009-02-07T11:14:00.000-08:00

Letter to the Editor

Worcester Telegram & Gazette

As I See It

March 7, 2007

This is in response to what I perceive as Verizon’s corporate propaganda “Competition for cable TV not as remote”, published March 7, written by Mat Hussey. Readers should know that Mr. Hussey worked more than eight years in the telecommunications industry, most recently for Verizon Communications before his present position at the American Legislative Exchange Council. ALEC is a corporately funded free market think tank that writes special interest legislation that only benefits it funders and not consumers or municipalities.

The present local franchise system does not discourage competition or consumer choice. This twenty-five year old system has worked very well and for many communities in eastern MA there has been competition between RCN and Comcast for some ten years. Also, throughout all municipalities in the state there are two other competitors in the form of Satellite TV providers—Dish Network and Direct TV. In many communities Verizon is the Fifth provider of Multi-Channel Video Services, as defined by the FCC.

Presently, if new competitors want to enter into a city franchise they merely have to match the incumbent license terms. This is the level and fair playing field. But it appears Verizon simply wants to avoid being subject to local franchise terms. It appears that they want to move regulatory authority as far away as possible from our local cities and towns. So, when you have a complaint about customer service, or when you are not allowed access to their high speed internet or digital phone or TV service in your low income neighborhood that has been “redlined” by Verizon, you may have to go to the FCC in Washington or to the DTE in Boston to get satisfaction. Yeah, like that’s going to happen.

Are we all supposed to believe that statewide franchising will address Worcester’s specific needs? The present Verizon proposal for telecommunication reform in this state will harm our PEG channels, leave local Institutional Networks (I-Nets), which provide towns and cities with low cost telecommunication services, to wither and die after incumbent license expire. In exchange such so-called reform, there is no guarantee of statewide competition or lower prices for the long term. As of now, Verizon has only announced plans to seek licenses in 67 of the 351 towns and cities in MA, which means they will serve only 16% of the states municipalities. So, why do they need special interest statewide licensing?

Local franchise controls are necessary. The people have a right to get something back in return for the corporate use of the Public Rights of Way. Municipalities have a fiduciary responsibility to manage the PROW to our benefit and “We the People” are entitled to receive PEG services in exchange for giving these companies use of these Rights of Way.

Verizon already has licenses and is providing video content services in 48 communities in Massachusetts. They currently comply with local franchise terms and conditions in those cities and towns. The current franchise system didn’t stop them in those places and won’t in Worcester. But as of now, there is no guarantee Verizon has an interest in providing services in Worcester since they are not currently interested in urban or rural communities but only in the “495 Donut” around Boston with Boston as the hole.

What caused the cable TV bill to “skyrocket was not local franchise fees or PEG Access, but corporate profits, increased programming costs and the need to rebuild the cable networks to compete with the Satellite providers. Can the process be quicker? Of course it can! Worcester has for over 20 years set the template. During the 2006 ascertainment process for renewal negotiations with Charter, it has become very clear what Worcester’s community needs and interest are. Cable and phone companies merely have to engage in good faith negotiation. There is no reason why these negations can not be executed in a timely manner.

For over twenty-five years, cable companies have launched increasingly profitable operations in Massachusetts and given fair compensation to municipalities for the use of the public rights of way. Should Verizon now be allowed to do any less?

Chuck Sherwood

Principal

Community Media Visioning

Debunking Verizon's Public Relations Threat in Massachusetts

2009-02-07T10:48:00.000-08:00

April 18, 2007

Letter to the Editor

Boston Globe

In response to, “Verizon suspends push for Mass. TV franchises”, it must be pointed out that Verizon never intended to build their FiOS network beyond the 67 towns in their current Capital Expense plan. A year and a half ago, based upon their financial analysis of the areas of the highest possible return on investment, they decided not to serve the remaining 84% of the municipalities in the state. Their Suburban Donut Strategy with Boston as the Hole does nothing to position the state for the 21^st Century.

Now, we have the public relations strategy of a phony threat to help move their bill on Beacon Hill. It reduces the licensing process to a fifteen day postcard application mailed into the Department of Telecommunication and Cable. There are no buildout requirements, no local needs assessments and no public hearings. This is not about our Choice but their Choice! The current process of local franchising has in fact expedited their builds and served local PEG and I-Net needs and all neighborhoods.

The Legislature and the Governor should block this bill and launch a Broadband Policy and Planning process that provides for an advanced telecommunications infrastructure that serves all of the state for community, educational and economic development.

Chuck Sherwood

Principal

Community Media Visioning

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

2009-02-07T06:40:00.000-08:00

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

By Chuck Sherwood

For those of us who have been around since the beginning or so it seems, I keep wondering when we, on the public interest side, will finally develop strategies that move us from always being on the defensive to going on the offensive. It all started in the mid ‘70s, the glory days, where the 1979 Mid West Video decision by the Supreme Court forced the cable industry into to the hand-to-hand combat of the ‘80s Cable Wars. That was the last win for the public interest as we witnessed the Cableco [1] manipulations of Congress in the ’84 and ’92 Acts [2]which culminated with the passage of the “grand compromise” better known as the Telecommunications Policy Act of 1996. In the past twelve years, we have been rolled by telecom “corporate interests,” their highly paid lobbyists and lawyers as well as their Astroturf [3] groups and so called academic think tanks. We have been rolled over in Congress, in the FCC, in the courts and in one state legislature after another. The most recent example is in the 6^th Circuit Appeals Court upholding of the FCC’s March 5, 2007 Cable Franchise Order giving Telcos franchises in 90 days.

Let me give you a couple of examples of the industry’s reasoning processes that justify recent legislative decisions—

(1) Preempting Local Franchising Authorities (LFAs) with either national or state franchising will foster competition which will lower subscriber rates and create jobs,

(2) LFAs are “barriers to entry”. LFAs make “unreasonable build-out requirements and demands for PEG Access” and finally

Published in the NATOA Journal, Fall 2008 issue
___________________________

[Footnotes]

[1] Cableco refers to the cable companies / industry

[2] The Cable Communications Policy Act of 1984 and the Cable Consumer Protection and Competition Act of 1992.

[4] Public right of way (PROW) is the 9 feet of land on each side of every road in the

U.S.