BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
The Provision of Interstate and )
International Interexchange )
Telecommunications Service via the ) RM No. 8775
"Internet" by Non-Tariffed, Uncertified )
Entities )
Comments in Opposition to
America's Carriers Telecommunication Association ("ACTA")
Petition for Declaratory Ruling,
Special Relief, and Institution of Rulemaking
Center for Democracy and Technology
Daniel J. Weitzner, Deputy Director
Alan Davidson, Staff Counsel
1634 Eye St., NW, Suite 1100
Washington, DC 20006
(202) 637-9800
http://www.cdt.org/
May 8, 1996
I. Introduction
A. Summary
The Center for Democracy and Technology files these comments in
opposition to the America's Carriers Telecommunication Association ("ACTA")
Petition, which asks the Commission to engage in rule-making concerning
"Internet telephony" real-time audio software applications and to immediately
prohibit companies and individuals from distributing such software.1 The Center
strongly opposes ACTA's requests.
The ACTA Petition's request for immediate relief would put the Commission
in the position of dictating how individuals use the network communications
services which are available to them through the Internet. The request is equivalent
to the post office asking the Commission to tell individuals that they cannot use
faxes, or that they cannot send email. The Commission's traditional responsibility
has been the underlying network and communications media and services, not how
individuals use those services. Moreover, ACTA's petition would involve the
Commission in intrusive regulation of computer software at the highest levels of
the network protocol stack -- a highly innovative area the Commission has wisely
thus far been wary of interfering with. For these reasons, CDT believes the
Commission should deny ACTA's requests for Special Relief, a Declaratory Ruling,
and Institution of Rulemaking. To date, the Internet has flourished as a
revolutionary communications medium which enhances the free expression
opportunities and diversity of information available to all Americans. The
Commission should consider carefully any call to stifle the continued growth of this
medium.
B. Statement of Interest
The Center for Democracy and Technology (CDT) is an independent, non-
profit public interest policy organization in Washington, D.C. The Center's mission
is to develop and implement public policies to protect and advance individual
liberty and democratic values in new digital communications media. The Center
achieves its goals through policy development, public education, and coalition
building. CDT's staff has worked extensively on issues concerning free speech,
privacy, and other issues affecting democratic values in new digital media,
particularly with regard to the Internet. CDT is pleased to have this opportunity to
comment publicly on this new request for rule-making and special relief that
implicates many of it's long-standing concerns about the democratic potential of the
new digital media.
CDT is particularly concerned that the voice of Internet users be heard in this
Request for Comments. The requests made by ACTA in its petition require the
Commission to take intrusive and unprecedented steps in the regulation of one of
the most quickly growing areas of new communications media - the Internet. The
Internet today is characterized by high growth, innovation, and an unprecedented
opportunity to promote the free flow of information for individuals and businesses
throughout the U.S. and around the world. As such, CDT believes that any
regulatory steps taken with regard to Internet telephony must be considered in light
of fundamental communications policy objectives: free expression, access to a
diversity of information sources, and access to high quality innovative services.
II. ACTA's Requests Would Restrict the Free Expression and
Communications Capability of Computer Users
A. Background: Internet Telephony Applications are Just One of Many New
Communications Tools Available to Computer Users
The ACTA Petition refers to the growing class of applications software that
carry audio in real-time over underlying Internet network services. Today, "Internet
telephony" software programs generally provide some form of voice conferencing
in real time between software packages running on computers at both ends of the
communication. These programs commonly utilize packet-based communications
services available through the Internet, but could also operate over private
networks such as increasingly popular "Intranets."
Despite claims in the ACTA Petition, these services are not provided at no
charge. Users must already own the extensive hardware and software platform
required to connect to the Internet, and to run the real-time audio conferencing
software. This investment may also include microphones and speakers that many
computer systems do not already have. Most significantly, users must also pay for
the connection fees charged their Internet Service Provider.
Real-time audio programs provide just one example of many new
communications choices being made by individuals and companies that utilize the
Internet and other new digital networks. Among the range of increasingly popular
applications available to today's computer users are: electronic mail, which remains
one of the most popular application on the Internet; "chat" applications, such as
Internet Relay Chat or many other proprietary services, which allow real-time text-
based communication; audio applications, such as RealAudio [tm], which have been
increasingly popular on the World Wide Web and allow users and publishers to
exchange audio in both real-time and otherwise; and video applications, including
real-time video conferencing software.
The ACTA Petition would require the Commission to regulate otherwise
indistinguishable data packets on the basis of what they contain. From the point of
view of the underlying communications services that real-time audio software use,
the data packets generated by audio software are virtually indistinguishable from
these other applications. Whether generated by real-time audio conferencing
software, electronic mail, or video file transfers, the digital data make use of the
same underlying network communications services and have the same form.
B. ACTA's Request Would Restrict the Ability of Computer Users to Freely Decide
How They Use Underlying Communications Services and to Choose
Communications Applications That Best Meet Their Needs
The ACTA requests would not restrict a basic communications service, but
rather a specific and indistinguishable application that makes use of underlying
communications services. ACTA's request for special relief and rule-making singles
out a particular type of application for regulation, based solely on the contents of the
data packets it sends.
The request would place the Commission in the place of preventing
individuals from choosing the types of software applications that best meet their
needs. ACTA asks the Commission to end the distribution of real-time audio
products alone. Computer users may use email or video-conferencing applications,
but not real-time audio conferencing. They may use audio applications that do not
involve real-time exchange; presumably they may use audio applications that
involve mutual broadcast of audio, so long as there is no real-time, one-to-one
exchange. If the post office sought to have individuals enjoined from using faxes or
telephones to send their messages, the Commission would object to this check on
the legitimate choices of users and the benefits of competition. CDT believes that the
Commission should deny Petitioners analogous requests in this instance.
III. The Commission Should Avoid Highly Intrusive Regulation of
Specific Applications at the Highest Layer of the
Communications Protocol Stack
A. The "Layered" Internet Communications Protocol Stack
The success of the Internet is often attributed to, among other things, the
"layered" approach of its architecture. (See Fig. 1 below) This architectural
separation of underlying network services from applications allows developers and
users at each "layer" to abstract or ignore many of the specifics of underlying
network technologies. This approach has allowed applications and underlying
communications services they make use of to evolve and innovate. It also
distinguishes applications, such as real-time audio software, that use
communications services, from lower layer software such as implementations of
the Transport Control Protocol of the Internet Protocol, which provide
communications service to higher layer applications.
Fig. 1 - The Internet Layered Architecture and Examples
Application Layer Electronic Mail
IRC and other Real-Time Text Exchange
Audio Conferencing
Video Conferencing
Word Processing, Financial Software, and many,
many others applications.
Transport Layer Transport Control Protocol (TCP)
User Datagram Protocol (UDP)
Network Layer Internet Protocol (IP)
B. The Commission Should Continue To Avoid Regulation at the Application
Layer In Order to Maintain Innovation and Competition
The ACTA Petition calls for the Commission to grant Special Relief and
institute Rule-Making proceedings regarding a specific type of software that is part of
the Application Layer of the Internet communications protocol stack. The
Commission should avoid this new form of regulation.
The application layer in particular represents an area characterized by
innovation that has led to tremendous benefits for users. It is better left to those
forces of innovation than the intrusive regulation of specific applications requested
by the ACTA Petition. The Special Relief sought by ACTA would require the
Commission to involve itself with choices about software applications that make
use of underlying network communications services in a way indistinguishable
from other applications. The Commission should allow these new technologies to
develop -- and to succeed or fail in the market depending on the expressed choices
made by users.
Allowing these technologies to develop unhindered may also lead to the
competition that computer users have long desired from the packagers and
presenters of underlying communications services. It might be noted that it is
exactly this competition that the ACTA petitioners fear -- the development by
innovative software providers of the means of taking advantage of existing
communications service that are more efficient and more attractive than packaging
that ACTA currently provides.
The Commission has thus far wisely avoided making regulatory choices at
the applications level. The Commission has exercised similar judgment in the past
in other contexts such as Enhanced Services, and should do so in the area of Internet
applications as well.
IV. Congress Has Specifically Decided That it is the Policy of the
United States Not to Regulate Internet Access Software, Such
As Real-Time Audio Software, As the ACTA Petition Would
Require
The ACTA Petition proposes exactly the sort of regulation of the Internet that
Congress expressly stated that it intended to avoid when it passed the
Telecommunications Act of 1996. In legislative findings with regard to the
regulation of the Internet, Congress expressly stated:
It is the policy of the United States --
(1) to promote the continued development of the Internet and other
interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists
for the Internet and other interactive computer services, unfettered by Federal
and State regulation; . . . .2
Congress specifically included in it's definition of "interactive computer services,"
the category of "access software providers":
"[A] provider of software (including client or server software), or enabling
tools that do one or more of the following: . . . (C) transmit, receive, display,
forward, cache, search, subset, organize, reorganize, or translate content."3
Real-time audio software clearly falls under the rubric of access software providers
that Congress went out of it's way to protect under the recently passed
Telecommunications Act. The special relief and rule-making sought by ACTA
would directly interfere with the "the vibrant and competitive free market that
presently exists for the Internet."
V. Conclusion
CDT believes that the ACTA request for special relief would immediately
restrict the ability of computer users to choose the communications applications that
best meet their needs. The ACTA petition would require that the Commission
arbitrarily regulate the sale and use of one of the many new communications
applications available today. ACTA would involve the Commission in regulation
of the application layer of the network protocol stack, contrary to its previously
expressed deference to innovation and competition in this arena. Finally, Congress
has recently and explicitly expressed its intent to avoid just the sort of regulation of
the Internet and interactive communications software that ACTA proposes. For
these reasons, CDT urges the Commission to deny each of the requests of the ACTA
petition.
Respectfully Submitted,
Center for Democracy and Technology
BY:
______________________
Daniel J. Weitzner, Deputy Director
Alan Davidson, Staff Counsel
1634 Eye St., NW, Suite 1100
Washington, DC 20006
(202) 637-9800
http://www.cdt.org/
May 8, 1996
1 Petition for Declaratory Ruling, Special Relief, and Institution of Rulemaking of America's
Carriers Telecommunication Association ("ACTA") (filed March 4, 1996) [Hereafter The ACTA
Petition] The ACTA Petition's call for Special Relief asks the Commission to "issue an order
to the Respondents to immediately stop arranging for, implementing, and marketing non-tariffed,
uncertified telecommunications services without complying with applicable provisions of the
[Telecommunications Act] . . . ."
2 Telecommunications Act of 1996, Section 508, codified at 47 U.S.C. 230 (b) (1996).
3 Telecommunications Act of 1996, Section 508, codified at 47 U.S.C. 230 (e)(4) (1996).
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