A Fond Farewell

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Alas it is time for the changing of the guard in the US. Thus another partial disconnect is upon us. Accordingly it is with a tinge of sadness that we say a fond farewell to Tom Wheeler at the FCC, and to Lawrence Strickland at the NTIA, along with the rest of the cadre appointed by former President Barack Obama. I wish them all well in their future endeavours. In my view they have served their country and our science and technology global community with distinction. As a parting gift they shared with us certain nascent policy benchmarks to enable us to assess their new administration against; as we pivot towards Klaus Schwab's Forth Industrial Revolution.

Chairman Wheeler gifted us the White Paper Cybersecurity Risk Reduction from 18th January 2017, produced by David Simpson at the Public Safety and Homeland Security Bureau.  Assistant Secretary Strickland gifted us the Green Paper Fostering the Advancement of the Internet of Things, produced by the DoC Internet Policy Task Force and Digital Economy Leadership Team from January 2017 President Obama gifted us the Artificial Intelligence, Automation and the Economy report from December 2016 produced by his Executive Office.

Within these three documents there are rich pickings to be had. I say this simply because documents at this high level of abstraction are written with regard to the levers of power to implement policy to address the: what can be done - when can it be done by - issues.

First though let us now absorb some of Tom and Lawrence's own assessments of their period in office.

Tom Wheeler

I have drawn from this font of wisdom in many a blog posting, simply because Tom has set the global agenda with his leadership. His final remarks were delivered on the 13th January, to the Aspen Institute, in a speech "A Time to Look Forward: Protecting What Americans Now Enjoy".

Naturally this speech encompasses his short term as Chairman, and that of his predecessor Julius Genachowski. It clearly and succinctly identifies all the policy benchmarks as one would naturally expect.

However, Tom's speech is in essence a critique of the Open Internet and a eulogy on Net Neutrality.

Therein Tom states:

"We are at a fork in that road. One path leads forward. The other leads back to re-litigating solutions that are demonstrably working. Looking forward is an era of ISPs operating responsibly at both the edge and the core network under light touch regulation accompanied by a referee on the field to throw the flag when necessary. Looking backward takes away existing protections and throws into question ISP expansion into edge activities...........All the press reports seem to indicate that the new Commission will choose an ideologically based course........The most compelling reason to keep moving forward on our current course with broadband policy is this: the open Internet is the law of the land. Tampering with the rules means taking away protections consumers and the online world enjoy today. What some describe as "free market economics" cannot mean simply freeing incumbents of their responsibilities. A hands-off approach to network oversight is more than a shift in direction, it is a decision to remove rights and move backward.

In this regard - and in so much that has occurred since the election - I have taken refuge in Abraham Lincoln's words in his First Inaugural. "While the people retain their virtue, and vigilance, no administration ... can very seriously injure the government, in the short space of four years."The reassurances of the second part of that statement are predicated on the first part, the requirement that the people "retain their virtue and vigilance."

Yes, we must be vigilant. And the first step in such vigilance is to ask those who want to rush to
take away existing protections a simple question: where's the fire? What has happened since the
Open Internet rules were adopted to justify uprooting the policy? As I said a moment ago, network investment is up, investment in innovative services is up, and ISPs revenues - and stock prices - are at record levels. So, where's the fire? Other than the desires of a few ISPs to be free of meaningful oversight, why the sudden rush to undo something that is demonstrably working? Vigilance requires the FCC or the Congress make the case as to why the American tradition of open networks should be reversed. Fortunately, the rules under which the FCC must operate provides for just such vigilance. Contrary to what you might have heard, reversing the Open Internet rules is not a slam dunk. The effort to undo an open Internet will face the high hurdle, imposed by the Administrative Procedure Act, of a fact-based showing that so much has changed in just two short years that a reversal is justified.

Let's remember that the Open Internet decision came after ten years that saw vast changes in the
technology of the Internet, as well as in the services it enables. In short, a lot happened leading
up to the 2015 decision - it is hard to make a case that the past two years come even close to that
revolutionary period.

The recent D.C. Circuit decision was a strong and resounding affirmation of the FCC's authority as well as the soundness of its decision based on the record. If there is a reversal of the Open Internet rule, it will have a high hurdle to vault to prove to the same court why its 2016 decision was wrong.

It is quite possible that Congress will be the focus of efforts to take away open networks.  Congress, of course, does not bear the burden administrative procedure imposes to justify its decision. It also has the ability to completely redefine just what constitutes net neutrality. It might be worthwhile, therefore, to define the key concepts behind net neutrality that truly preserve a fast, fair, and open Internet.

It's a matter of Truth in Packaging. If something is deserving of being called net neutrality, it must be Comprehensive, Continuing and Consistent:

*?Comprehensive: Limiting the definition of Net Neutrality to blocking, throttling and paid prioritization is an empty promise if it is not accompanied by the authority to comprehensively protect against the power of broadband gatekeepers, not just some of their conduct.

*?Continuing: We do not know how the Internet will evolve and ISPs will take advantage of new technology. A general conduct rule - which I've analogized to a referee on the field with the ability to throw a flag - captures conduct whether is it new or old, blatant or nuanced with ongoing regulatory oversight and the ability to act where necessary to prevent anti-consumer and anti-competitive practices.

*?Consistent: By this, I mean a consistent standard so that everyone - whether an ISP, a consumer, or an edge provider - knows the yardstick that will measure fairness. Since the time of the Interstate Commerce Act in 1887 there has been a consistent standard for judging carriers' practices: are those practices just, reasonable, and not unreasonably discriminatory? These concepts have 130 years of jurisprudence behind them, and they have evolved to effectively address the incentives that network operators may otherwise have to exploit their position to the detriment of consumers or competition.
Passing legislation or adopting regulations without these key provisions and calling it net neutrality would be false advertising."

"Truth in Packaging"? "False Advertising"? Shades of OFCOM?

Note his reference to Abraham Lincoln and need for people to retain their virtue, which has sadly been cast aside by the Spirit of Prejudice. He also cites vigilance. Hence the importance of Tom's three guidelines for assessment. Thus Comprehensive, Continuing and Consistent are the watchwords.

Tom also outlined the following stark warning delivered not just for America but for our at home John Milton Brigade:

"Overturning the Open Internet rule would also jeopardize the legal underpinnings of the
broadband privacy rules, and indeed Republicans have targeted the recent privacy order for
repeal. But in today's interconnected world, the absence of FCC regulation does not necessarily
mean there is no regulation. Rather, it simply creates a vacuum that will be filled by other rulemakers
in other countries.

In the absence of FCC privacy rules - and with the recent court case raising serious questions
about the FTC's authority to impose privacy requirements on the non-common carrier businesses
of common carriers - US carriers could find could find themselves unable to qualify for the
Commerce Department's Privacy Shield Framework for their ISP businesses. The result would
be the regulation of American businesses under the privacy rules of the European Union."

I see - the European Union and accordingly the Digital Single Market?

Well, when the US recognizes the importance of these matters, and the OFCOM and the UK Government does not, then should we not all take note?

However when these ISP's Tom refers too and the JMB talk about the ideology of free trade, what they are really referring to is the Darwinian concept of the "survival of the fittest: The Law of the Jungle." We all know the consequences that technical inequality is currently generating and focusing our minds. But clearly these ISP's are merely engaged in positioning for the adoption of their preferred technical standards. What the JMB have failed to grasp is that these ISP's shall fall into line and adopt the prevailing technical standard once the industry settles on one. It is a connectivity self-interest thing. 

Finally Tom states:

"Access to the network is what the new economy is built on, and it must not be taken away. The
vigilance Lincoln spoke of means we must be alert to name-only, so-called Net Neutrality policies that actually retreat from the protections that exist today.

The open Internet is the most powerful engine for innovation, economic growth and job creation in the world today. The opportunities before us are limitless. As we choose our path forward, we need to remember how we got here. We got here with smart government, not absent government. We got here with a government that was pro-competition, not pro-incumbent. We got here thanks to policies rooted in reality, not ideology. Most important, we got here because of the genius of America's inventors and entrepreneurs and an open platform that allowed them to execute their ideas without having to ask for permission."

So what permission shall we need to seek from OFCOM in the Global Spectrum Sharing and Spectrum Monitoring era?

Lawrence Strickland

I confess that, I have been remiss in not citing Laurence Strickland in person more often. His leadership was not without merit. His own comprehensive account of the performance of the NTIA under his leadership is outlined in the speech he delivered to the Hudson Institute, on the 16th December 2016: "The 5G Wireless Future and the Role of the Federal Government.".

I shall merely cite his parting thoughts here:

"As I conclude, let me leave you with some final thoughts about what we have learned over the last eight years as well as some issues that I believe need additional attention in the immediate and near term if we are to ensure that 5G and all spectrum based technologies reach their true potential.
First, there is no longer any question that spectrum sharing has to be a major part of the solution. And the only way sharing will work is by maintaining and even extending collaborative and cooperative processes and relationships that bring all affected stakeholders together, including the FCC and NTIA and the spectrum user community including federal and non-federal users.

Second, as the airwaves become more congested, we need to develop and enforce minimal technical rules to protect against unauthorized harmful interference. Automated enforcement approaches make a lot of sense but will require increased investment to develop interference analysis tools. I also believe we are going to have to finally address the performance characteristics of spectrum receivers. Otherwise, you can limit the ability to effectively use all available spectrum. And we must take advantage of new opportunities such as 5G to build enforcement tools into the technology.

Third, as a nation, and really even as a global spectrum community, we must continue to invest in research and development of technologies that will help us make the most effective and efficient use of spectrum. There are pieces in place, from expanded use of the Spectrum Relocation Fund, to the Wireless Spectrum R&D consortium to the National Science Foundation's Advanced Wireless Research Initiative. But I hope that collectively we will do even more.

Fourth, I would like to see additional focus to more accurately quantify current spectrum demand, usage and projections of future requirements - for both non-federal and federal use. Technologies and business models change rapidly. To ensure we keep up with these changes, we need to focus on actual needs. Wireless operators appear to be concentrating on expanding capacity in a localized fashion to address the most congested parts of their networks. How will we collectively ensure that more areas get covered by the latest technologies and dead zones are minimized? How granular does coverage need to be for emerging 5G applications? For IoT specifically? How important is reliability in an IoT environment? These are questions that will need to be considered in weighing future spectrum policy decisions."

Ah yes, Spectrum Sharing and Spectrum Monitoring again? I believe I have covered this aspect sufficiently previously and shall continue to so do in future. I have also mentioned the performance characteristics of radio receivers also as directed by the Presidential Report. As for interference and spectrum forensics and enforcement tools being built into the chip sets, readers shall know that I am well on top of matters. As for Surrey? I shall come back to Webb's Luddites another time.

Instead it is to that other vitally important contribution Lawrence made to ensure that an Open Internet is maintained and preserved: "The Self-Governing Internet". His speech to the Georgia Institute of Technology, on the 26th October addressed this subject in depth. It concerns a small matter of the Internet Assigned Numbers Authority (IANA). Citing from Lawrence's speech:

"First, let me provide some history. More than two years ago, NTIA tasked ICANN with convening stakeholders to develop a plan to transition the stewardship role NTIA played related to the Internet domain name system. We set out four key criteria. We said it must:
* support and enhance the multistakeholder model of Internet governance;
* maintain the security, stability, and resiliency of the Internet DNS;
* meet the needs and expectations of the global customers and partners of the IANA services; and
* maintain the openness of the Internet.

In addition, we said we would not accept a plan that replaced NTIA's role with a government-led or intergovernmental organization solution. Enhancing ICANN's accountability also was deemed by stakeholders to be a critical part of this process."

Next Laurence addresses the multi-stakeholder governance model itself:
"Perhaps the most important attribute is that a multi-stakeholder process must have legitimacy.
 Participants must believe that a process has the legitimacy to reach a decision. They must have some trust in those convening the process and a sense that the participants are representative of the broader community.

So where does legitimacy come from? Often that legitimacy may come from a government or some other "official" entity that convenes the process. But that does not always have to be the case. The Internet Engineering Task Force (IETF) is an example of a successful multi-stakeholder body that has gained legitimacy organically over the years and did not require the blessing of a government agency like NTIA. Instead, it gained legitimacy by producing voluntary standards of the highest quality.
In the United States, the legitimacy of the domestic multi-stakeholder processes that NTIA has facilitated on privacy and cybersecurity have certainly been helped by our convening them and by their open and transparent manner. But government does not always need to be the legitimizing force. So while legitimacy is a crucial factor in the success of a multi-stakeholder process, there may be many different ways to obtain it.

For example, a process may develop legitimacy when it is open to any participant and utilizes consensus decision making, such as the IETF. One key benefit of multi-stakeholder processes is that they can include and engage all interested parties. These parties can include industry, civil society, government, technical and academic experts and even the general public. The Internet is a diverse, multi-layered system that thrives only through the cooperation of many different parties. Solving or even meaningfully discussing policy issues in this space requires engaging these different parties. Indeed, by encouraging the participation of all interested parties, multi-stakeholder processes can foster broader and more creative problem solving.

Another key element is consensus decision-making. For a multi-stakeholder group to succeed, its members must know that they will be the ones to make the decision -- not someone else --and that it must be a consensus decision. Some countries or organizations have run what they call multistakeholder processes that in reality are only consultations because the so-called multi-stakeholder group is not empowered to make the final decision. When groups know that they control the final decisions, they are more likely to put in the extra effort often needed to reach a true consensus. Usually, reaching consensus requires making compromises but participants are more willing to compromise when a group feels that reaching a shared decision is the most important goal. Otherwise, stakeholders who are satisfied with the status quo can be destructive to a multi-stakeholder process.

Clearly, the multi-stakeholder model has a successful record of accomplishment when it comes to technical Internet issues. All of us have watched in awe over the past two years as the global Internet community has engaged in one of the most compelling demonstrations of a multi-stakeholder process ever undertaken through the work on the IANA stewardship transition."

Shades of OFCOM again? It was also remiss of me not to point out that this Transition occurred on the same date as the Chinese Currency became part of the IMF reserve currency basket. Instead I preferred to leave this fiat acompli to the rampant paranoia of the JMB to get their heads around.

However, I should point out that the multi-stakeholder model adopted was devised by Klaus Schwab and itself is the underlying operational ethos underpinning the World Economic Forum, which gathers in Davos. [Incidentally, I note that to coincide with this years event Klaus has expanded on his Foreign Affairs article I quoted previously from by producing a book of the same title.] 

From the NTIA accompanying Fact Sheet extracts state:

* The IANA transition is the culmination of a nearly 20-year effort to privatize the Internet domain name system (DNS). This has been a goal of Democratic and Republican administrations since 1997. The U.S. Government has worked with businesses, technical experts, governments, and civil society to establish a multi-stakeholder, private-sector led system for the global coordination of the DNS.
* The transition is not a radical proposal being rushed through by President Obama. The transition has been the policy of the U.S. Government for nearly two decades spanning three administrations. The transition plan was developed through consensus during the past two years by hundreds of stakeholders around the world. Stakeholders are ready for this transition now.
* The transition will help maintain the open global Internet. The IANA transition will help maintain the global open Internet by supporting and enhancing the multi-stakeholder approach to Internet governance. The multi-stakeholder approach is a key reason why the Internet has grown and thrived. It brings businesses, technical experts, civil society groups, and other stakeholders together to solve policy and technical challenges on a consensus basis.
* The transition promotes Internet freedom. The best way to preserve Internet freedom is to depend on the community of stakeholders who own and operate, transact business and exchange information over the Internet. Free expression is protected by the open, decentralized nature of the Internet, the neutral manner in which the technical aspects of the Internet are managed, and the commitment of stakeholders to maintain openness.
* The IANA transition is in the best interest of U.S. businesses and global e-commerce. American and global businesses rely on a global, interoperable, and secure Internet DNS to facilitate the free flow of goods and services online. The IANA transition will preserve a secure, stable, and resilient Internet DNS, which is why businesses of all sizes support the transition.
* The U.S. Government opposes United Nations control of the Internet. The transition plan does not replace NTIA's role with a government-led or intergovernmental solution. Corporate governance experts found the prospects for a takeover of ICANN to be extremely remote. ICANN is in no way akin to the United Nations.
* The United States does not control the Internet. No one controls or owns the Internet. It is a decentralized network of networks that has operated with the cooperation and through the consensus of a wide array of stakeholders, predominantly from the private sector. The Internet is not ours to give away. By supporting multi-stakeholder Internet governance, we make certain the Internet becomes no other nations' to take.

There you have it.

The path has been now truly set for a Global Open Internet which shall have consequences for state sovereignty. Here there shall also be knock-on consequences for the UN inter-governmental ITU and in particular the WRC.

I quote from Schmidt and Cohan (Chapter 3): "To whit, we believe it's possible that virtual states will be created and will shake up the online landscape of physical states in the future" Indeed! I shall come back to this important matter another time. Although one aspect here the "Free Traders" shall be brought to confront is with regards to Peoples: there are Races and Nations and a common-good or indeed a common-wealth but there are no "countries"; countries are merely political constructs. 

Whereas we have been bombarded with the debate over the word "sovereignty" by the "take back control" cabal, the watchword now for an Open Internet shall be "legitimacy". The reader needs look back no further than Lawrence's critique above for evidence of this eventuality.

I would simply ask the JMB the following open question: how do you propose to take back control of the Open Internet?

Barack Obama

As for a critique of the former President? There shall be a whole industry of books and commentary on his tenure to which I have two points to contribute.

First he shall go down as the 4G President. Secondly he is the first President who truly grasped and understand technology policy not just the Internet. That said it was in 2003 under the Directives of President Bush that the world was set on course for the 5G Spectrum Sharing Era.

The lesson for our current crop of UK politicians is that a firm grasp and appreciation of technology policy shall be a prerequisite for the 5G Era, otherwise the Millennials shall see through your entrenched ignorance and prejudice (sorry political differences). Technology is indeed a generational thing.

Hopefully though we have not heard the last of former President Obama's wise counsel.

Thus I shall merely bid all our American friends a fond farewell until we do.

Wilbur Ross

I could not usher in the new US Administration without a few comments on the new Secretary of Commerce: Wilbur Ross. Wilbur is no stranger to our industry or the UK itself.
Firstly, after the Referendum result he abandoned his interest in pursuing British Steel.

Secondly he then disposed of his substantial shareholding in Vodafone.

As for his priority, personally, I would not be taken in by the smoke and mirrors act. I would also ignore the "Alternative Fact" and "Fake News" media sparing as this is also all an act, merely encompassing the"Salting the Battlefield" for a US Trade Pact with China. For that is the true fundamental policy difference between this Administration and the previous one. Whereas President Obama sought to surround and contain China with the TPP coalition, this administration is out to confront China directly. With the prize of global semiconductor leadership for 5G to be contested between them surely we have an interest in the outcome. But don't tell the JMB!

Sharon White

Of course we all already know that OFCOM still lack Open Internet and Net Neutrality enshrined in UK law, consequently they shall provide no protection for us. Hence why the UK is heading for a Darwinian Closed Internet unless certain arbitration safeguards are put in place from the EU. I say this with due regard to the speech Sharon White made to the Institute for Government, on the 1st December wherein Sharon states:

"Now, as the UK prepares to leave the EU, decisions will be made about the laws that should apply here in the future.
This is an important process: one that will determine the future direction of our communications services, and their impact on people and businesses, for years to come.
So I believe a triple test should be applied when deciding which EU laws should continue to apply in the UK. Of each and every measure, we should ask ourselves three crucial questions.
* Does it prioritise the interests of UK consumers and the wider public?
* Does it promote competition and investment?
* And it does it support UK companies' ability to trade successfully in the EU, and globally?
So how do we ensure that new UK laws, and future regulations, pass that triple test?
The answer lies in our approach to the EU frameworks. For us, that should mean three things:
* Retaining what works in the EU framework;
* Improving it, where it may be deficient; and
Avoiding making things worse, by inadvertently weakening powers or protections."

Simply a case of parochialism writ large?

The above approach seems to me fair for a competition regulator, but for an aspiring global technology regulator it is backward looking in seeking to retain the status quo. This approach needs to be replaced for 5G where the technology standards are currently being set in place; especially now that Qualcomm have begone to market their first 5G Chip set in the US.

Best Regards and a belated Happy New Year.
Barry McKeown
25th January 2017


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