May 20, 2011  ·  Lessig  · Reblogged from  Huffington Post

Dear Governor Perdue:

On your desk is a bill passed by the overwhelmingly Republican North Carolina legislature to ban local communities from building or supporting community broadband networks. (H.129). By midnight tonight, you must decide whether to veto that bill, and force the legislature to take a second look.

North Carolina is an overwhelmingly rural state. Relative to the communities it competes with around the globe, it has among the slowest and most expensive Internet service. No economy will thrive in the 21st century without fast, cheap broadband, linking citizens, and enabling businesses to compete. And thus many communities throughout your state have contracted with private businesses to build their own community broadband networks.

These networks have been extraordinarily effective. The prices they offer North Carolinians is a fraction of the comparable cost of commercial network providers. The speed they offer is also much much faster.

This single picture, prepared by the Institute for Local Self Reliance, says it all: The yellow and green dots represent the download (x-axis) and upload (y-axis) speeds provided by two community networks in North Carolina. Their size represents their price. As you can see, community networks provide faster, cheaper service than their commercial competitors. And they provide much faster service overall.

2011-05-20-broadbandgraph.png

Local competition in broadband service benefits the citizens who have demanded it. For that reason, community after community in North Carolina have passed resolutions asking you to give them the chance to provide the Internet service that the national quasi-monopolies have not. It is why businesses from across the nation have opposed the bill, and business leaders from your state, including Red Hat VP Michael Tiemann, have called upon you to veto the bill.

Commercial broadband providers are not happy with this new competition, however. After spending millions in lobbying and campaign contributions in North Carolina, they convinced your legislature to override the will of local North Carolina communities, and ban these faster, cheaper broadband networks. Rather than compete with better service, and better prices, they secured a government-granted protection against competition. And now, unless you veto H. 129, that protection against competition will become law.

Opponents of community broadband argue that it is “unfair” for broadband companies to have to compete against community-supported networks. But the same might be said of companies that would like to provide private roads. Or private fire protection. Or private police protection. Or private street lights. These companies too would face real competition from communities that choose to provide these services themselves. But no one would say that we should close down public fire departments just to be “fair” to potential private first-responders.

The reason is obvious to economists and scholars of telecommunications policy. As, for example, Professor Brett Frischmann argues, the Internet is essential infrastructure for the 21st century. And communities that rely solely upon private companies to provide public infrastructure will always have second-rate, or inferior, service.

In other nations around the world, strong rules forcing networks to compete guarantee faster, cheaper Internet than the private market alone would. Yet our FCC has abdicated its responsibility to create the conditions under which true private broadband competition might flourish in the United States. Instead, the United States has become a broadband backwater, out-competed not only by nations such as Japan and Korea, but also Britain, Germany and even France. According to a study by the Harvard Berkman Center completed last year, we rank 19th among OECD countries in combined prices for next generation Internet, and 19th for average advertised speeds. Overall, we rank below every major democratic competitor — including Spain — and just above Italy.

In a world in which FCC commissioners retire from the commission and take jobs with the companies they regulate (as Commissioner Baker has announced that she will do, by joining Comcast as a lobbyist, and as former FCC Chairman Powell has done, becoming a cable industry lobbyist), it is perhaps not surprising that these networks are protected from real competition.

But whether surprising or not, the real heroes in this story are the local communities that have chosen not to wait for federal regulators to wake up, and who have decided to create competition of their own. No community bans private networks. No community is unfairly subsidizing public service. Instead, local North Carolina communities are simply contracting to build 21st-century technology, so that citizens throughout the state can have 21st-century broadband at a price they can afford.

As an academic who has studied this question for more than a decade, I join many in believing that H.129 is terrible public policy.

But it is as a Democrat that I implore you to take a stand on this issue, and veto this bill.

Many of us Democrats have been enormously disappointed by the failure of our party to stand for principles that matter. There’s always an excuse for ducking a fight — which it seems only our side ever sees. Ideologues on the far right have radically remade public policy throughout the nation, while moderates and progressives keep their heads low. And many of us are now embarrassed to even read the slogan that earned the Democratic Party the presidency and control of Congress in 2008 — “Change you can believe in.” The only real change that we have seen is in the extraordinary effectiveness of the far right to define the nation’s agenda and, though a minority party, force it upon the nation. And when the far right aligns with the endless stream of corporate lobbying and campaign cash, it seems that there is no issue that the majority of citizens can actually prevail upon.

Be a different kind of Democrat, Governor Perdue. I know you’ve received thousands of comments from citizens of North Carolina asking you to veto H.129. I know that given the size of the Republican majority in the legislature, it would be hard for your veto to be sustained.

But if you took this position of principle, regardless of whether or not you will ultimately prevail, you would inspire hundreds of thousands to join with you in a fight that is critical to the economic future of not just North Carolina, but the nation. And you would have shown Republicans and Democrats alike that it is possible for a leader to stand up against endless corporate campaign cash.

There is no defeat in standing for what you believe in. So stand with the majority of North Carolina’s citizens, and affirm the right of communities to provide not just the infrastructure of yesterday — schools, roads, public lighting, public police forces, and fire departments — but also the infrastructure of tomorrow — by driving competition to provide the 21st century’s information superhighway.

With respect,

Lawrence Lessig

To contact the governor, you can email her. If you’re from North Carolina, this link will take you to a tool to call the governor’s office. You can follow this fight on Twitter at @communitynets
You can follow similar fights on Twitter by searching #rootstrikers.

  • http://sethf.com/ Seth Finkelstein

    What planet do these guys come from?

    Planet Libertopia, of course :-).

    I knew Declan back when he was transitioning to Libertarianism. I used to say, when we were friends, “You’re having your brains eaten by The Mind-Flayers Of Cato”. Obviously, I failed to persuade him …

    I have my own views of what happened to him, not sure I should get into it. I’m certainly not the most objective observer, especially nowadays. But I was there when it happened.

  • http://eric.eisenhart.name/ Eric Eisenhart

    If in fact networks are allowed to decide which applications and content can run on the network, then �the Internet� is dead.

    Why shouldn’t networks be able to decide what applications and content can run on them, as long as said network isn’t in any kind of monopoly situation and consumers are properly informed of the limitations of the network connection they’re purchasing?

    For instance, most responsible broadband providers don’t allow connections on port 25 to go from dialup or broadband customers to “the internet” at large. They force that traffic to go through their mail servers to prevent their customers from readily spamming the world.

    Of course, cable-internet is a monopoly; in much of the US (and elsewhere?) there’s fast cable internet, slow dialup or no internet as your choices.

    But if you can pick between 2 DSL providers and one is cheaper but doesn’t allow certain types of connections and the other is pricier but allows them, why not let the consumers decide which they’d prefer? Not that the DSL providers that don’t allow certain types of connectivity are actually forthright about this fact or anything, but many customers still manage to figure it out and choose the more open connectivity. (if you want to run a server this is already the case; you can do it with a “premium” provider like speakeasy, but not with a phone company provider like SBC)

  • Neil Kandalgaonkar

    Eric Eisenhart: your complaint appears to be self-cancelling. You yourself note the increasing concentration in selecting ISPs. Could you clarify how your hypothetical consumer even has such a clear, equal choice, in the real world?

    Even if that were the case, and it clearly ISN’T, it would still be problematic.

    Why should the individual consumer be forced to pay higher prices for service in one industry, just to ensure that there is a level playing field in another?

    I hope the Cato institute has not yet eaten everyone’s brains, surely enjoining companies from destroying competition in an unrelated industry is an acceptable role for government?

  • Jonathan Mendelson

    I agree that networks shouldn’t regulate what Internet people have access too–but I’m sympathetic to the argument that no law is currently necessary. If and when there is a problem I probably would support legislation to keep the Internet open, but if it ain’t broke, why fix it? There are many examples of well intentioned laws having bad, unintended consequences, and I think a good example is the Federal Election Campaign Act of 1979, which intended to limit the influence of money in campaigns but helped lead to the soft money problem from the last couple elections (leading indirectly to the McCain-Feingold bill, whose effects are yet to be determined). I don’t entirely see the point of passing a law in order to preempt a problem that may or may not occur.

  • TargusUser

    I think Lessig fundamentally misunderstands Declan. Lessig is looking for a coherent, reasoned way to examine and evaluate policy. Declan wants to sell copy by adopting strident, provocative views that generate heat, not light. Lessig needs a nuanced view of the world. Declan needs to avoid nuace like the plague: it might be seen as waffling to the cretins whose page views attract Declan’s advertisers.

    In short: Hey Declan, Bill O’Reilly called; he wants his schtick back.

  • http://vance.talkinbout.us ActionVance

    “no law is currently necessary” — I am sure there is some sort of legislation which protects against faulty advertising (excuse the niavete here – but do read on)

    Most cable companies offer “Internet” service. “Internet” is defined as “An interconnected system of networks that connects computers around the world via the TCP/IP protocol.” by American Heritage. that being said, “Internet Access” should be defined as “Access to an interconnected system of…” NOT “Limited Access to an inter….”

    I on the otherhand have “Optimum Online” service. After reviewing marketing materials, it became apparent that no where does Cablevision offer “internet access”… they make mention of “surfing” and “downloading” but are careful. They do not say “Internet Access”. Instead – “Online” is used. Online is defined as “Connected to a computer or computer network.” Which is true – no matter how insanely your ONLINE provider limits you.

    Interesting.

  • http://www.noloconsentire.com/ Daniel J. Boone

    “No one serious opposes all regulation.”

    Unless you are proposing that as a new definition of “serious”, it’s a false statement. I’m dead serious about it. And even if I’m not serious enough for you, I can’t see how somebody like David Friedman could fail to qualify.

    However, lots of serious people disagree with Declan. ;-)

  • Christoph Jaggi

    What can you expect from a guy who doesn’t get the difference between Europe and the European Union, a guy that makes comparitive statements without having even a basic understanding of one of the two things he is comparing? It is fair to assume that such undifferentiated thinking is present all over his work.
    When you look at mobile (cellular) networks and the Internet access they provide, you will see that your concerns are more than valid. Mobile operators have already started to limit access. At least in some European countries with some operators you are limited to certain protocols (HTTP, SMTP, POP3, IMAP) when using GPRS. The operators control the gateways and with the control of the gateways they can limit the services available to their subscribers. They actually regulate what kind of Internet services their subscribers can use. If the operators do regulate, then there is absolutely a need for a law that regulates that they do not regulate.

  • Greg Buchholz

    I think the key to convincing the anti-regulationists about this issue is to put the whole question in its proper context. When Professor Lessig states, “If in fact networks are allowed to decide which applications and content can run on the network, then ‘the Internet’ is dead” I think he is making a subtle mistake that plays into the hands of his adversaries. He uses the generic term “networks” to describe the problem children. But the real problems are the already heavily regulated networks (cable and telecom). If these institutions hadn’t been granted monopolies through regulation in the first place, then I would agree that new rules mandating the “end-to-end” principle would seem overly-intrusive. Since that is not the case, the new rules are simply trying to make those with government granted networks behave more like those under free market conditions. An anti-regulation of sorts. If Microsoft really wanted to preserve the “end-to-end” principle, then they would be wise to also lobby the FCC for increased spectrum allocation for the wireless commons (like the unregulated 2.4GHz slot), which would provide competitive encouragement for the cable companies to do the “right thing” while minimizing the need for regulation tweaking in the future.

  • http://somethingcatchy.blogspot.com Josh

    If anyone wants to see Ferree’s entire speech from the PFF conference, go here. Scroll down to the “Materials from ‘Net Neutrality’ Conference” entry and there will be comments from Ferree, Victory and a paper by Joseph Farrell and Philip Weiser.

    Ferree’s speech absolutely reeked of lobby money. After reading it you’ll also understand where Declan magically got the idea that this whole idea is just “waving the marketing slogan of ‘Net neutrality’”

    This whole conference was preceded by an attack on the “Net Neutrality” idea in a news.com article by PFF’s Randolph May. There’s a link to that on my blog, too (in the June archives). There’s much more to say about this. I’ll leave it at this for now.

  • Anonymous Coward

    What Josh said is the most accurate. Still Prof. Lessig makes the discussion too simplistic himself. He doesn’t offer any good solutions other than to criticize Declan. Who cares what he thinks? The issue is how to ensure a principle, which is a very complex issue with difficult economic ramifications. It’s easy for everyone else to say: Let Net Neutrality Rule when the costs of the infrastructure are borne by other people. In addition, the Net of today is different from the Net of yesteryear so it just won’t do to apply old principles to a new medium.

  • http://www.causingeffect.com/blog Josh

    I agree, AC, it’s complicated. Which is why I was excited to see that the PFF was holding a conference that promised analysis of both the pros and cons of the concept. I guess my beef lies in two things. 1) If you’re going to have a conference that truly looks at both sides of the issue, why come out swinging against one side before the conference and 2) speaking of beef, where is the beef with Ferree’s comments? Although the keynote speaker, Nancy Victory, hit the nail on the head it was Ferree’s substanceless attack that received all the press attention. He could be absolutely right in saying it’s not time to regulate but I saw nothing in the speech that should have been considered even close to persuasive. As you said, it’s complicated. All I ask is that before we reduce an idea to “simple sloganeering,” we dig through the complications and see what we have. Perhaps we’ll see it in the report he delivers to the Commission. I can only hope.

    If anyone (I don’t care what side you’re on) cares enough about this to comment more, come on over to my blog and comment. I’m dying to see a little bit more discourse before this whole idea is dismissed.

  • Tom Bargerr

    I attended a conference at Cato Institute in order to hear my Congressioanl Representative, Rick Boucher, give the keynote.

    I wasn’t sure what sort of place this was that I wandered into, but upon meeting a person I admired, Declan, I was given the brochures etc. I have an English friend Irixx, who has asked “My English friends are somewhat puzzled. Can you explain, Tom, what is a Libertarian?”

    I unsubscribed to Politech when Declan criticized Boucher. And I had a few pithy things to say about Ayn Rand.

    As far as i’m concerned, Declan’s only claim to immortality is having a chapter in Lessig’s book named after him.

    I see no reason to follow Declan’s tortured thinking anymore, nor to encourage him with any further publicity.

    The very idea of copyright itself requires an act of government regulation.

  • Matthew Saroff

    Andrew Orlowski was right when he referred to Declan as a “Draw by Crayon Libertarian”.