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The distinction between carriage and content
The distinction between carriage and content
Lewis Auerbach The distinction between cafriaga and contenthasbeanofferedasaconcaptual means for distinguishing between new teIscommunicationa activities which should be subject to regulation and those which should be unregulated. The author explores aspects of the limitations of that distinction and examines how a carrier can affect the contentofthe measage,aswellaswho the message bearers and mcelvem will be.ltissuggesMthatthemostsigniflcant regulatory probiems are at the boundary between carriage and content and that the carrlv distinctionshouldnotbeextendedbeyondlta useful roie (ie where ths communications chennel is effecWeiy Infinite). Throughout this artick, Mefence is made to emerging issuas of videotex regulation. The author is Research Adviser, Research Directorate, and
Canadian
Radiitelevision
Telecommunications
Commission,
Ottawa, Ontario, Canada KlA
0N2.
Tel
819-997-6141. Thisarticleiaanexpandedvmionofapanal presenlationoftheFcundin9canferenceofthe Canadian communicatbns Aswaatm Montreal, June 1990. Tha viawa expmwd & solely those of the author, who wishea to acknowledge the halpful cammnta of Rod Chiaaaon. Greg van Koughnett.FernandFontain and Nigel Weir.
‘Lkw@i Parkhill, +The mxaaaty atnxture’. in Gutenbe1g2,edDaveGodfreyandDou9Iaa Parkhill.Preaa Pompic, TomnQ 1979, pp69-94.
0308~5961/81/010003/09$02.00
In Canada, as elsewhere, the development of videotex systems has led to a discussion of how those systems should be regulated. Given the hybrid involving elements of computer nature of the components, communications, broadcasting, and newspaper publishing, it is hardly surprising that the emerging regulatory principles are likely to be hybrid combinations of telecommunications, print and broadcasting regulation and non-regulation. While the Canadian government itself has not made formal pronouncements on videotex regulation, reports and statements issuing from the Department of Communications (DOC) give, at the very least, a clear indication of the thinking of officials in the department which is responsible for preparing new communications legislation and for the promotion of Telidon, the Canadian videotex system. Their basic policy position, reflecting principles both in the Railway Act and the Bell Canada Special Act, is the ‘separation of carriage and content’. In other words, the carriage of viewdata should be regulated like a monopoly common carrier, subject to principles of fair rates and no unjust discrimination with respect to rates or access. The content, however, should be, like the press, essentially unregulated. The major exception would be broadcast teletext which, because of the relatively narrow bandwidth available for it, would require regulatory determinations or criteria for the type of content, and/or content providers, since all content providers would not be able to distribute pages over such a limited bandwidth. The separation has merits, conceptually. In a rough way, it enables participants in the system to distinguish between those parts which will, if the DOC has its way, be regulated, and those which will be completely unregulated. However, like any dichotomy, there are definite problems at the boundary between the two concepts. Both the attractiveness and limitations of the distinction are well displayed in an essay by Douglas Parkhill, Assistant Deputy Minister for Research in the DOC. ’ Parkhill’s metaphors are vivid. ‘There should be a legal wall of separation’ between those who provide services and those who distribute them. The distributors should be regulated as a monopoly and the providers should be largely unregulated. This ‘legal wall’, however, is subsidiary to the major metaphor of an ‘Electronic Highway
Q 1981 IPC Business Press
3
The distincrion
between carriage and conrent
Network’ which consists of a ‘universal, functionally-integrated institutionally-separated information distribution system’: As regulated
monopolies,
and required
to fulfill the following
1.
Provide
equality
the highway operators
3.
as common carriers
obligations:
of access at tariffed rates to the services distributed
insofar as this is technically 2.
would be regulated
Provide
non-discriminatory
provision
and distribution
Refrain
from participating
but
and economically
by the highways
feasible.
access to the highways
at tariffed rates to anyone for the
of services. in or influencing
in any way the content
of the services
carried.’
The formulation and metaphors reflect an important omission. The characterization of a highway operator providing ‘non-discriminatory’ and ‘equal’ access (subject only to economic and technical feasibility) masks the policy importance of choosing between alternative technical and economic criteria for access. In fact, since these criteria will constrain access by some but not by others, the interesting questions then become ones of deciding how, and in what ways, technical and economic limitations should be allowed to determine access to the Electronic Highway, both by potential consumers and producers of information. Perhaps, in view of these limitations to access, other social and political criteria (such as the ‘public interest’) should also be used. Economic criteria, by definition, discriminate on the basis of ability to pay. This is not always a socially or politically optimum outcome.
The carrier’s influence on content
‘Ibid. pp 91-92.
4
It is Parkhill’s third point - the carrier’s non-influence over content which is most important and also most difficult to enforce. Despite the attractiveness of the content-carriage separation, content and software will inevitably be influenced at least in some ways and on some occasions by the common carriers. This influence will be technological and perceptual, on one hand, and sociopolitical, on the other. The technological influence reflects simply the characteristics of the terminals and transmission media. Telephones are poor media for the transmission of emotive or musical messages, for instance, and totally unsuitable, at present, for moving images. The amount of noise on a telephone line, or interference on a radio frequency, can also dramatically affect the amount of information which can be communicated. The presence of echo on a satellite circuit similarly may reduce the ability of a person to express a complex message. Of course, rather than risk sending a message which may be incorrectly interpreted, many human beings will adapt to the limitations of a medium and will alter their modes of communication to suit the medium. Innis has recounted dozens of historical examples which reflect this adaptive mechanism of message makers. Similarly, recipients of messages will eventually be conditioned to expect certain kinds of messages, but not over a given communications channel. Their perceptual others, expectations will reflect the adaptations of others to the characteristics of the channel, and become, in time, a pervasive and thus almost invisible sociocultural phenomenon. As recipients and information providers adapt, so too do the designers of media. The characteristics of a channel can be altered not only by technical means, but also by artistic innovation. Film conveys far more than it did forty years ago, and not only because its width is greater than it TELECOMMUNICATIONS POLICY March 1981
The distinction between carriage and content
used to be. Its language, its vocabulary and syntax have become both more complex and more flexible. In regulatory terms, the Canadian Radio-television and Telecommunications Commission (CRTC) has recognized the technical relationship between carrier and content in the development of quality of service indicators for, for example, line quality in the telephone service: after all, poor line quality affects the ability of users to communicate effectively. A more difficult distinction is that between data processing and data communications. Both in Canada and the USA, it has been accepted as a general principle that common carriers should be permitted to compete, in terms of offering data processing, but that the communications and data processing services should be separated. This distinction has led to lengthy proceedings in both countries. One problem has been that many services offer a package of communications and processing so that the neat conceptual distinction between processing and communications is difficult to apply in practice. One solution, suggested by Seitz,’ would employ the criterion of whether the output function had a lower entropy than the input. If it were lower, then the service might be considered as a data processing service. The importance of Seitz’s discussion for the regulation of videotex is obvious - many of the services being offered, but not all, are ‘pure’ communication services. Bell Canada usually seems to take the position that its only interest is in offering the channel of communication for information or service providers. However, on occasion it seems interested in a somewhat larger role, perhaps providing the terminal equipment, and certainly providing a billing service. The argument for using the criterion of entropy reduction for evaluating the role of the common carrier in videotex services might therefore aid the process of deciding what the proper role of the common carrier should be in this service with respect to technological and perceptual influences on content. However, when speaking of the carrier-content distinction, the concern is usually not technological, but rather sociopolitical. Since it is legally unacceptable for a monopoly carrier to have an important role, or indeed any role, in deciding what messages it will carry, the carrier carries any message it is asked to transmit. Access to its service is based solely on ability to pay the tariffed rates. However, the rates can in turn affect not only the messages, but who the message writers and receivers are. The Bell Canada Special Act Section 5(3) states that the Company ‘shall neither control the contents nor influence the meaning or purpose of the message’, and so Bell is permitted to take a role greater than the mere provision of a channel, providing it does not ‘control or influence’ the messages. In this connection, it is useful to note the nature of postal rates which, in Canada, as in other countries, are set by a government-owned common carrier. Except those for first class mail, rates are subsidized to variouss degrees. While not acting as a gatekeeper on specific messages (pomoography excepted), by establishing classesof services, the Post Office can and does help determine which cultural institutions find it feasible to usee its communication channel. For instance, in order to receive the benefit of second-class postal rates, the Post Office must determine that the publication is of ‘general interest’. Otherwise, the much higher third-class rates must be paid. In either case, the deficit, for budgetary purposes, is ‘Neal B. Baik, ‘Data CanmwllcBbon anddata processing-a besis for ddinibbn’,r&cur+ assigned to the Secretary of State who is responsible for cultural matters! municationsPolicy. Vd 4, No 1.1980. pp 49-62. In the USA, a special rate is available to ‘non-profit’ organizations. If TELECOMMUNCIATIONS POLICYMarch 1981
5
The distinction between carriage and content
rates were set solely on the cost of providing the service, certain kinds of communication might be inhibited (or so the publishers argue). Or, if the mails are slow (as they often are), publishers may either seek alternative modes of delivery, or may alter their content to the extent possible, in order to compensate for the slow speed of the carrier. This discussion could be extended ad infinintm to show the various ways in which the technology, entry criteria, rate structure, and even, on occasion, the ideological4 preferences of the owner of a communications channel, can affect the message which travels over that medium. Since this is hardly a revolutionary observation, why, one wonders, is the attempt made to separate carrier and content? The reason is obvious - it provides institutional advantages, as well as a conceptual basis, for distinguishing betwen regulated and non-regulated types of activities. And, indeed, the dichotomy has been useful in telecommunications regulation. Yet, while it may be useful and elegant to separate the spectrum of communications functions into two parts, there may be cases in which the boundary between the two is so unclear that a finer or more flexible division for regulatory purposes may be more desirable.
Videotex regulation in Canada
4The CRTC has had to deal with several instances of ideological bias whii have been brought to its attentii. Among them was the campaign against Bill 22 by CFCF in Montreal whii led tothe CRTC censure in the renewal decision the following year. The question of advocacy advertising (and ‘anti’-advocacy advertising) was explored in a 1977 seminar. More recently, the prc&cen of W-5 were accused of bias against Chinese with respect to a programme on medical students in Canada. Bias is also a problem with respect to some open-line hosts.
6
First, it is worthwhile to consider a resume of some of the salient features of the emerging regulatory environment for videotex. For the sake of simplicity, assume that broadcast teletext would be treated as if it were a broadcast, cable teletext as if it were a cable-initiated alphanumeric service, and an interactive phone videotex would be treated as if it were data communication and, where relevant, data processing. This would have the following consequences: broadcast teletext might be required to meet the tests of balance, diversity, and Canadian content required by the Broadcasting Act; cable services would be offered by cable companies, subject to the rules of the CRTC with respect to channel allocation and rates and cross subsidization; telephone videotex would be treated as a data communication/processing service. Major regulatory issues would involve terminal interconnection, access, and non-discriminatory rates. Regulatory outcomes in those provinces with provincially owned telephone companies might be different from those in provinces regulated by the CRTC. Nevertheless, it is interesting to observe that a large number of the potential regulatory issues could probably be handled reasonably well under existing regulatory structures. One reason for this is that the Broadcasting Act makes no implicit distinction between carrier and content, but rather places emphasis on the use of a scarce public resource, the electromagnetic spectrum. Since the carrier-content dichotomy is useful only as bandwidth approaches infinity, it is appropriate not to make the separation for broadcast teletext, where there will be a very small number of pages of information. On the other hand, to the extent that high-capacity systems become the rule, as they might with cable and telephone, then aspects of the existing regulatory regime seem appropriate as far as the common carrier is concerned. Constraints to access However, there are a number of issues which have as yet inadequate precedents or legal guidance. These relate to institutional and technological constraints which may inhibit access both by users and information providers to the videotex system. TELECOMMUNICATIONS POLICY March 1981
The distinction
between carriage and content
Take the example’of access to information provider terminals. Partly, this is a problem of supply, which, for the present, is an important issue. In Canada, Norpak, Electrahome and Northern Telecom have produced only a few dozen terminals for Telidon. This has required the DOC and Bell Canada to decide which prospective information providers should have how many terminals. Technically, access is also limited by the ability of a user to input information rapidly. If it takes 12 hours to design one page, as it has, this constrains- the ability of an information provider to make other messages. Economically, price structure will be very important, In the UK an ‘entry fee’ has been required which is sufficiently high to encourage the formation of brokers and consortia to service smaller information providers inhibited from participation as single entities. Thus access to information provider terminals will have a profound impact upon the evolution of videotex systems. The same is also true of access to storage and processing facilities. In turn, the information providers will desire access to a communications network. This access might be direct, might be available by connection to a telephone company processing and computer subsidiary, or might be offered by a totally independent party, an information ‘broker’s broker’. Again, access to the system may be simply a question of paying the price. This, however, is not necessary, especially if there is consensus that the ‘public interest’ is not served by such an arrangement. If information provider terminals decline in price, then access to the network will become the more acute issue. In either case, the question of what content is to be provided must be decided. This, in essence, is the most fundamental gatekeeping issue. While the Broadcasting Act provides adequate jurisdiction to the CRTC to ensure that teletext is not, say, merely just an advertising source, and traditions of cable regulation provide some justification for ensuring that the range of choices on cable are adequate and do not distort the broadcasting system, telephone regulation is traditionally silent on the question of content. However, content-related issues remain. For instance, this regulatory silence does not eliminate the possibility that information may be ‘dumped’ on the Candian market in much the same way as TV programmes have been dumped, thus making it very difficult for Canadian information providers to compete with foreign competition except in very specialized (Canadian) areas. If viewdata were a telephone service, the CRTC might not have the legal power to take action. The CRTC’s tools, after all, are primarily negative, in that it acts as a gatekeeper on rates and licences. To improve content in a viewdata system regulated by canons of common carrier regulation, positive incentives such as subsidies and tax incentives would be required. The tradition of common carrier regulation is too well established to tamper with regulation of the content directly. Even concentration of ownership seems to be outside of normal regulatory purview. Infomart, a joint venture of Southam Press and the Toronto Star, appears well launched as the major videotex information provider in Canada. If it were to achieve a dominant market position, there is not much likelihood that current AntiCombines legislation would constrain its growth or dominance. Nevertheless, the existing regulatory regime can, in a rather cumbersome way, permit the services to develop so that a fairly wide choice of materials is available on videotex; so that means are found to provide wide access to the service, if it is in wide demand and technology permits; TELECOMMUNCIATIONS POLICYMarch 1981
The distinction
between carriage and content
and so that the common carriers do not unfairly exploit their dominant market position either as sellers of terminals or as providers of information; and so that freedom of choice is preserved in both a negative and positive sense - consumers have the capacity to reject unwanted messages, as well as to choose what they want. Finally, the current regulatory regime can ensure that the development of these services proceeds so as to not injure or inhibit the existing communications network upon which they will depend. In order to do this, however, we will need a better understanding of the gatekeepers at the boundary between carriage and content, and how channel characteristics and entry criteria influence content and may or may not operate in the public interest. As with TV, a consumer cannot choose what is not offered, no matter how desirable the choice may be. Conversely, under the current regime, it .is also possible for a system to evolve which, employing strict economic criteria, inhibits participation by Canadian information providers and data processing firms; permits misleading or unbalanced information to be disseminated; does not offer privacy safeguards, benefits primarily foreign manufacturers of terminals and information; and does not contribute to the development of Canadian communities. It is not likely, but certainly possible. Even where access is freest the strict carriage-content separation is not fully adequate. In common carrier regulation, the demand for privacy, for freedom from unwanted messages and obscene calls, is widely perceived as a legitimate social end, worthy of legislative action and regulatory oversight. Thus, if possible, some would design a new service offering so that a recipient could reject undesired communications, or restrict access by others to a third party’s messages. This is done now as a matter of course in business and government by encryption on the one hand, and coded access on the other.
‘Kurt Lewin, Field Theories in Social Science, Harper and Row, New York, 1950.
a
Gates and gatekeepers Metaphorically, access to new technolgies will be controlled by gates operated by gatekeepers. However, Kurt Lewin’ has distinguished between gates operated by impartial rules and gates operated by individual gatekeepers. That is, there may be gatekeepers who apply uniform criteria (and thus may not be visible always to the society at large) and gatekeepers who apply subjective, capricious or inconsistent criteria. It is also possible for a gate to act on a first come, first served basis. Or certain classes of users (police, for instance) might have preferred access. Whether this unequal access would be preferable socially would depend on the preferences of the society involved. A simplified typology (Table 1) of gatekeeper criteria and the means of exclusion suggests how the concept can usually be applied to analyse questions of entry, access, and discrimination with respect to new service offerings. The most obvious aspect of this typology is the frequent linkage, in practice, of technical and economic criteria on the one hand, and the linking of ideological and governmental criteria, on the other. Technical gatekeepers appear to have the advantage of the ‘objectivity’ of science or the autonomy of technology on their side. This is itself an ideology, but it is one so pervasive as to be almost invisible. On the other hand ideological, and especially bureaucratic gatekeepers, are visible. Their decisions do not usually enjoy the same degree of consensus in Western society which is accorded to technological and TELECOMMUNICATIONS
POLICY March 1981
The disrincrion
Mwna of oxduabn
between carriage and content
or tnduabn
Knowbdga (of system) (of technique) Availabilii of propar equipment (chips, terminaLs.etc) ldeologii
Potii polii
oriantation and aamomic philosophy (nattonal origin; pally; race; languages)
P@wlogiil ness, ew
oItenta6on (preference for status quo; assertive-
Economic (market economy)
Prim of entry (to consumer) (not always same as costs) costaofproduction(toprovidet) capital availabilii anfl aXts
Bureaucratic - governmental
Ragulatton Incentives SUMdii
Taxes
economic means of exclusion or inclusion. For instance, the US assertions on the importance of ‘free flow of information’,6 portray the doctrine of free flow as essentially one in which only economic and technological criteria should randomly, fairly, and perhaps ‘objectively’ determine access to the means of communication, rather than ideological criteria or some governmental definition of the national interest which might reflect ‘prejudice’ or social world view. Similarly, entry to many common carrier systems depends, in theory, on explicit economic and technical criteria rather than implicit ideological or governmental criteria. Broadcasting, on the other hand, because of the scarcity of frequencies, has been forced to employ explicit governmental criteria, and implicit social and ideological criteria which, taken together, are a greater barrier to entry than the rather formidable technical and economic requirements of establishing a broadcasting undertaking. The legal framework for telecommunications, whether it already exists or is proposed, involves identifying possible constraints to access, and the criteria and/or rates to be employed in enabling entry of either producers or consumers. Carriage and content are not ignored, to be sure, but it is the boundary between them which is the arena for most of the regulatory and legislative action. Options For videotex, therefore, the interesting issues include questions of who will be the carrier and what will be the content.’ There is the following range of possibilities: (1) Carrier determines content, according to market needs, and profit potential. (2) Carrier determines content, as above, but within guidelines ‘For a critique see HI. Schiller, comnonicabbn established by law and/or regulatory agency. and Cu/futa/ Lbmhitiun. International Arts and (3) Carrier contracts or delegates to a third party who is responsible for SctencePress, Whtt Phins, 1976. content, as in (1) or (2) above. The party could even be *the See. for example, Nii L&UC. ‘Tetetexl and videotex in bkslh Arnatica-the Canadian community’. perapedtve’. Tekommunicstfons Policy, Vol 1, (4) Carrier marries public needs to private interests without need of No 4. 1960. pp 416; A. Ouimet. ‘Rationalizing . :aplanforacttorV, external pressures or regulations or appearing to influence content Canadii m unduly. P@scfLJe/fa, 1976; Parkhill. op tit, Ret 1. TELECOMMUNCIATIONS POLICY March 1981
The distinction
between carriage and content (5)
Access on a first come, first served basis without regard to (1) and (4) - or on a random-access basis.
In broadcasting, it is usually assumed that the broadcaster is also the carrier, but this is certainly not necessary. As Frank Spiller has argued,* the ‘exhibitor’ need not be the programme producer. In other words, the range of choices of carrier-content relations which a broadcaster has (except for option (3)) is independent of whether the content is the product of outside producers or comes from within the broadcasting company itself. A similar range of possibilities is available to cable companies and telephone companies. The cable industry prefers options (1) or (2) while the telephone companies lean towards (3), (4), or (5). Thus the range of carriage-content issues for videotex is comparable to those of existing broadcasting, cable and telephone media. Entry criteria for videotex users and IPs This problem is more easily solved once it has been decided whether or not ideological or sociopolitical criteria will be subsidiary to technical and economic criteria. At the moment, there appears to be a consensus in favour of technical criteria because of their ‘objective’ qualities. However, this apparent impartiality masks a whole set of sociopolitical assumptions which should be made more explicit. Hidden assumptions may be convenient, but if they mask trends not in the public interest, this should be exposed. At present, this concern is hypothetical because videotex is still a marginal technology. However, if it should ever ‘take off as its proponents anticipate, the precedents being established in the infancy of videotex technology will persist for a long time, just as they have in television. Therefore, as Canada begins to establish gatekeeping criteria for entry to a videotex system, it is important to establish principles consistent with Canadian needs and traditions in broadcasting and communications. One set of principles which meets this requirement is the following: The technology should be energy and material efficient. It should not encourage either directly or indirectly the inappropriate or wasteful consumption of energy or non-renewable resources. The cost should be reasonable, and not a significant barrier to use to, say, 95% of the population. The technology should be disseminated for its intrinsic value, not as a device to enlarge the telephone or cable networks, or to justify ‘usage sensitive pricing’, or the need for another communications satellite. Unwanted messages can be prevented (especially advertising) and privacy assumed with respect to messages sent and received, as well as records of information selected. Universality of access, and diversity of content should be sought. Canadian content should receive explicit preference over equivalent US content.
*Canadian Radiitelevision and TeleammunicaCanadian Bmadcasting and
tionsCornmissii.
T&xammunications: Past Experience, Futute Options, Canadian Government Pubhhing Centre, Ottawa, 1980, pp 104-105.
10
Given the history of Canadian broadcasting communications, these principles should seem self-evident. However, what is equally evident and consistent with historical exp’erience is the improbability of achieving a system which embodies these principles, in the absence of some govemmental guidance or structures. Intentional design is necessary, during, not after, the current round of pilot projects. In fact, the pilot projects TELECOMMUNICATIONS POLICY March 1981
The distinction
between carriage and content
should be used to experiment explicitly with different forms of gatekeepers to test the degree to which the above principles are met, and how they might be met more effectively. This means experimenting both with ~~diiofexclusiveattentiontoa the form and content of videotex, as well as with institutional structures, groupof abshcws. however well founded. is tariffs, and other gatekeeping functions. that, by the nature of the case. you have Arguing for separation of carriage and content will subsume the most abstracted from the remainderof things.In so far as the excluded things are impoftant in your important sociopolitical questions under an apparently technical distincexperieme,yourmodesofthoughtarenotffttedto tion, and, even worse, may encourage people in the complacent assumpdeal with them. You cannotthinkwithoutabstractions;accordinglyit is of the utrmst importanceto tion that the mere assertion of two mutually exclusive categories will be vigilant in critically r&sing your modes of solve the boundary issue implicit in making the distinction in the first abstraction.’ Alfred Notlh Whiiehead, Science place. There is no need to suffer from what Alfred North Whitehead once and the Modem World, New American Library, called the ‘fallacy of misplaced concreteness’.P New York, 1948, p 56.
TELECOMMUNCIATIONS POLICYMarch 198 1
11
Lewis Auerbach The distinction between cafriaga and contenthasbeanofferedasaconcaptual means for distinguishing between new teIscommunicationa activities which should be subject to regulation and those which should be unregulated. The author explores aspects of the limitations of that distinction and examines how a carrier can affect the contentofthe measage,aswellaswho the message bearers and mcelvem will be.ltissuggesMthatthemostsigniflcant regulatory probiems are at the boundary between carriage and content and that the carrlv distinctionshouldnotbeextendedbeyondlta useful roie (ie where ths communications chennel is effecWeiy Infinite). Throughout this artick, Mefence is made to emerging issuas of videotex regulation. The author is Research Adviser, Research Directorate, and
Canadian
Radiitelevision
Telecommunications
Commission,
Ottawa, Ontario, Canada KlA
0N2.
Tel
819-997-6141. Thisarticleiaanexpandedvmionofapanal presenlationoftheFcundin9canferenceofthe Canadian communicatbns Aswaatm Montreal, June 1990. Tha viawa expmwd & solely those of the author, who wishea to acknowledge the halpful cammnta of Rod Chiaaaon. Greg van Koughnett.FernandFontain and Nigel Weir.
‘Lkw@i Parkhill, +The mxaaaty atnxture’. in Gutenbe1g2,edDaveGodfreyandDou9Iaa Parkhill.Preaa Pompic, TomnQ 1979, pp69-94.
0308~5961/81/010003/09$02.00
In Canada, as elsewhere, the development of videotex systems has led to a discussion of how those systems should be regulated. Given the hybrid involving elements of computer nature of the components, communications, broadcasting, and newspaper publishing, it is hardly surprising that the emerging regulatory principles are likely to be hybrid combinations of telecommunications, print and broadcasting regulation and non-regulation. While the Canadian government itself has not made formal pronouncements on videotex regulation, reports and statements issuing from the Department of Communications (DOC) give, at the very least, a clear indication of the thinking of officials in the department which is responsible for preparing new communications legislation and for the promotion of Telidon, the Canadian videotex system. Their basic policy position, reflecting principles both in the Railway Act and the Bell Canada Special Act, is the ‘separation of carriage and content’. In other words, the carriage of viewdata should be regulated like a monopoly common carrier, subject to principles of fair rates and no unjust discrimination with respect to rates or access. The content, however, should be, like the press, essentially unregulated. The major exception would be broadcast teletext which, because of the relatively narrow bandwidth available for it, would require regulatory determinations or criteria for the type of content, and/or content providers, since all content providers would not be able to distribute pages over such a limited bandwidth. The separation has merits, conceptually. In a rough way, it enables participants in the system to distinguish between those parts which will, if the DOC has its way, be regulated, and those which will be completely unregulated. However, like any dichotomy, there are definite problems at the boundary between the two concepts. Both the attractiveness and limitations of the distinction are well displayed in an essay by Douglas Parkhill, Assistant Deputy Minister for Research in the DOC. ’ Parkhill’s metaphors are vivid. ‘There should be a legal wall of separation’ between those who provide services and those who distribute them. The distributors should be regulated as a monopoly and the providers should be largely unregulated. This ‘legal wall’, however, is subsidiary to the major metaphor of an ‘Electronic Highway
Q 1981 IPC Business Press
3
The distincrion
between carriage and conrent
Network’ which consists of a ‘universal, functionally-integrated institutionally-separated information distribution system’: As regulated
monopolies,
and required
to fulfill the following
1.
Provide
equality
the highway operators
3.
as common carriers
obligations:
of access at tariffed rates to the services distributed
insofar as this is technically 2.
would be regulated
Provide
non-discriminatory
provision
and distribution
Refrain
from participating
but
and economically
by the highways
feasible.
access to the highways
at tariffed rates to anyone for the
of services. in or influencing
in any way the content
of the services
carried.’
The formulation and metaphors reflect an important omission. The characterization of a highway operator providing ‘non-discriminatory’ and ‘equal’ access (subject only to economic and technical feasibility) masks the policy importance of choosing between alternative technical and economic criteria for access. In fact, since these criteria will constrain access by some but not by others, the interesting questions then become ones of deciding how, and in what ways, technical and economic limitations should be allowed to determine access to the Electronic Highway, both by potential consumers and producers of information. Perhaps, in view of these limitations to access, other social and political criteria (such as the ‘public interest’) should also be used. Economic criteria, by definition, discriminate on the basis of ability to pay. This is not always a socially or politically optimum outcome.
The carrier’s influence on content
‘Ibid. pp 91-92.
4
It is Parkhill’s third point - the carrier’s non-influence over content which is most important and also most difficult to enforce. Despite the attractiveness of the content-carriage separation, content and software will inevitably be influenced at least in some ways and on some occasions by the common carriers. This influence will be technological and perceptual, on one hand, and sociopolitical, on the other. The technological influence reflects simply the characteristics of the terminals and transmission media. Telephones are poor media for the transmission of emotive or musical messages, for instance, and totally unsuitable, at present, for moving images. The amount of noise on a telephone line, or interference on a radio frequency, can also dramatically affect the amount of information which can be communicated. The presence of echo on a satellite circuit similarly may reduce the ability of a person to express a complex message. Of course, rather than risk sending a message which may be incorrectly interpreted, many human beings will adapt to the limitations of a medium and will alter their modes of communication to suit the medium. Innis has recounted dozens of historical examples which reflect this adaptive mechanism of message makers. Similarly, recipients of messages will eventually be conditioned to expect certain kinds of messages, but not over a given communications channel. Their perceptual others, expectations will reflect the adaptations of others to the characteristics of the channel, and become, in time, a pervasive and thus almost invisible sociocultural phenomenon. As recipients and information providers adapt, so too do the designers of media. The characteristics of a channel can be altered not only by technical means, but also by artistic innovation. Film conveys far more than it did forty years ago, and not only because its width is greater than it TELECOMMUNICATIONS POLICY March 1981
The distinction between carriage and content
used to be. Its language, its vocabulary and syntax have become both more complex and more flexible. In regulatory terms, the Canadian Radio-television and Telecommunications Commission (CRTC) has recognized the technical relationship between carrier and content in the development of quality of service indicators for, for example, line quality in the telephone service: after all, poor line quality affects the ability of users to communicate effectively. A more difficult distinction is that between data processing and data communications. Both in Canada and the USA, it has been accepted as a general principle that common carriers should be permitted to compete, in terms of offering data processing, but that the communications and data processing services should be separated. This distinction has led to lengthy proceedings in both countries. One problem has been that many services offer a package of communications and processing so that the neat conceptual distinction between processing and communications is difficult to apply in practice. One solution, suggested by Seitz,’ would employ the criterion of whether the output function had a lower entropy than the input. If it were lower, then the service might be considered as a data processing service. The importance of Seitz’s discussion for the regulation of videotex is obvious - many of the services being offered, but not all, are ‘pure’ communication services. Bell Canada usually seems to take the position that its only interest is in offering the channel of communication for information or service providers. However, on occasion it seems interested in a somewhat larger role, perhaps providing the terminal equipment, and certainly providing a billing service. The argument for using the criterion of entropy reduction for evaluating the role of the common carrier in videotex services might therefore aid the process of deciding what the proper role of the common carrier should be in this service with respect to technological and perceptual influences on content. However, when speaking of the carrier-content distinction, the concern is usually not technological, but rather sociopolitical. Since it is legally unacceptable for a monopoly carrier to have an important role, or indeed any role, in deciding what messages it will carry, the carrier carries any message it is asked to transmit. Access to its service is based solely on ability to pay the tariffed rates. However, the rates can in turn affect not only the messages, but who the message writers and receivers are. The Bell Canada Special Act Section 5(3) states that the Company ‘shall neither control the contents nor influence the meaning or purpose of the message’, and so Bell is permitted to take a role greater than the mere provision of a channel, providing it does not ‘control or influence’ the messages. In this connection, it is useful to note the nature of postal rates which, in Canada, as in other countries, are set by a government-owned common carrier. Except those for first class mail, rates are subsidized to variouss degrees. While not acting as a gatekeeper on specific messages (pomoography excepted), by establishing classesof services, the Post Office can and does help determine which cultural institutions find it feasible to usee its communication channel. For instance, in order to receive the benefit of second-class postal rates, the Post Office must determine that the publication is of ‘general interest’. Otherwise, the much higher third-class rates must be paid. In either case, the deficit, for budgetary purposes, is ‘Neal B. Baik, ‘Data CanmwllcBbon anddata processing-a besis for ddinibbn’,r&cur+ assigned to the Secretary of State who is responsible for cultural matters! municationsPolicy. Vd 4, No 1.1980. pp 49-62. In the USA, a special rate is available to ‘non-profit’ organizations. If TELECOMMUNCIATIONS POLICYMarch 1981
5
The distinction between carriage and content
rates were set solely on the cost of providing the service, certain kinds of communication might be inhibited (or so the publishers argue). Or, if the mails are slow (as they often are), publishers may either seek alternative modes of delivery, or may alter their content to the extent possible, in order to compensate for the slow speed of the carrier. This discussion could be extended ad infinintm to show the various ways in which the technology, entry criteria, rate structure, and even, on occasion, the ideological4 preferences of the owner of a communications channel, can affect the message which travels over that medium. Since this is hardly a revolutionary observation, why, one wonders, is the attempt made to separate carrier and content? The reason is obvious - it provides institutional advantages, as well as a conceptual basis, for distinguishing betwen regulated and non-regulated types of activities. And, indeed, the dichotomy has been useful in telecommunications regulation. Yet, while it may be useful and elegant to separate the spectrum of communications functions into two parts, there may be cases in which the boundary between the two is so unclear that a finer or more flexible division for regulatory purposes may be more desirable.
Videotex regulation in Canada
4The CRTC has had to deal with several instances of ideological bias whii have been brought to its attentii. Among them was the campaign against Bill 22 by CFCF in Montreal whii led tothe CRTC censure in the renewal decision the following year. The question of advocacy advertising (and ‘anti’-advocacy advertising) was explored in a 1977 seminar. More recently, the prc&cen of W-5 were accused of bias against Chinese with respect to a programme on medical students in Canada. Bias is also a problem with respect to some open-line hosts.
6
First, it is worthwhile to consider a resume of some of the salient features of the emerging regulatory environment for videotex. For the sake of simplicity, assume that broadcast teletext would be treated as if it were a broadcast, cable teletext as if it were a cable-initiated alphanumeric service, and an interactive phone videotex would be treated as if it were data communication and, where relevant, data processing. This would have the following consequences: broadcast teletext might be required to meet the tests of balance, diversity, and Canadian content required by the Broadcasting Act; cable services would be offered by cable companies, subject to the rules of the CRTC with respect to channel allocation and rates and cross subsidization; telephone videotex would be treated as a data communication/processing service. Major regulatory issues would involve terminal interconnection, access, and non-discriminatory rates. Regulatory outcomes in those provinces with provincially owned telephone companies might be different from those in provinces regulated by the CRTC. Nevertheless, it is interesting to observe that a large number of the potential regulatory issues could probably be handled reasonably well under existing regulatory structures. One reason for this is that the Broadcasting Act makes no implicit distinction between carrier and content, but rather places emphasis on the use of a scarce public resource, the electromagnetic spectrum. Since the carrier-content dichotomy is useful only as bandwidth approaches infinity, it is appropriate not to make the separation for broadcast teletext, where there will be a very small number of pages of information. On the other hand, to the extent that high-capacity systems become the rule, as they might with cable and telephone, then aspects of the existing regulatory regime seem appropriate as far as the common carrier is concerned. Constraints to access However, there are a number of issues which have as yet inadequate precedents or legal guidance. These relate to institutional and technological constraints which may inhibit access both by users and information providers to the videotex system. TELECOMMUNICATIONS POLICY March 1981
The distinction
between carriage and content
Take the example’of access to information provider terminals. Partly, this is a problem of supply, which, for the present, is an important issue. In Canada, Norpak, Electrahome and Northern Telecom have produced only a few dozen terminals for Telidon. This has required the DOC and Bell Canada to decide which prospective information providers should have how many terminals. Technically, access is also limited by the ability of a user to input information rapidly. If it takes 12 hours to design one page, as it has, this constrains- the ability of an information provider to make other messages. Economically, price structure will be very important, In the UK an ‘entry fee’ has been required which is sufficiently high to encourage the formation of brokers and consortia to service smaller information providers inhibited from participation as single entities. Thus access to information provider terminals will have a profound impact upon the evolution of videotex systems. The same is also true of access to storage and processing facilities. In turn, the information providers will desire access to a communications network. This access might be direct, might be available by connection to a telephone company processing and computer subsidiary, or might be offered by a totally independent party, an information ‘broker’s broker’. Again, access to the system may be simply a question of paying the price. This, however, is not necessary, especially if there is consensus that the ‘public interest’ is not served by such an arrangement. If information provider terminals decline in price, then access to the network will become the more acute issue. In either case, the question of what content is to be provided must be decided. This, in essence, is the most fundamental gatekeeping issue. While the Broadcasting Act provides adequate jurisdiction to the CRTC to ensure that teletext is not, say, merely just an advertising source, and traditions of cable regulation provide some justification for ensuring that the range of choices on cable are adequate and do not distort the broadcasting system, telephone regulation is traditionally silent on the question of content. However, content-related issues remain. For instance, this regulatory silence does not eliminate the possibility that information may be ‘dumped’ on the Candian market in much the same way as TV programmes have been dumped, thus making it very difficult for Canadian information providers to compete with foreign competition except in very specialized (Canadian) areas. If viewdata were a telephone service, the CRTC might not have the legal power to take action. The CRTC’s tools, after all, are primarily negative, in that it acts as a gatekeeper on rates and licences. To improve content in a viewdata system regulated by canons of common carrier regulation, positive incentives such as subsidies and tax incentives would be required. The tradition of common carrier regulation is too well established to tamper with regulation of the content directly. Even concentration of ownership seems to be outside of normal regulatory purview. Infomart, a joint venture of Southam Press and the Toronto Star, appears well launched as the major videotex information provider in Canada. If it were to achieve a dominant market position, there is not much likelihood that current AntiCombines legislation would constrain its growth or dominance. Nevertheless, the existing regulatory regime can, in a rather cumbersome way, permit the services to develop so that a fairly wide choice of materials is available on videotex; so that means are found to provide wide access to the service, if it is in wide demand and technology permits; TELECOMMUNCIATIONS POLICYMarch 1981
The distinction
between carriage and content
and so that the common carriers do not unfairly exploit their dominant market position either as sellers of terminals or as providers of information; and so that freedom of choice is preserved in both a negative and positive sense - consumers have the capacity to reject unwanted messages, as well as to choose what they want. Finally, the current regulatory regime can ensure that the development of these services proceeds so as to not injure or inhibit the existing communications network upon which they will depend. In order to do this, however, we will need a better understanding of the gatekeepers at the boundary between carriage and content, and how channel characteristics and entry criteria influence content and may or may not operate in the public interest. As with TV, a consumer cannot choose what is not offered, no matter how desirable the choice may be. Conversely, under the current regime, it .is also possible for a system to evolve which, employing strict economic criteria, inhibits participation by Canadian information providers and data processing firms; permits misleading or unbalanced information to be disseminated; does not offer privacy safeguards, benefits primarily foreign manufacturers of terminals and information; and does not contribute to the development of Canadian communities. It is not likely, but certainly possible. Even where access is freest the strict carriage-content separation is not fully adequate. In common carrier regulation, the demand for privacy, for freedom from unwanted messages and obscene calls, is widely perceived as a legitimate social end, worthy of legislative action and regulatory oversight. Thus, if possible, some would design a new service offering so that a recipient could reject undesired communications, or restrict access by others to a third party’s messages. This is done now as a matter of course in business and government by encryption on the one hand, and coded access on the other.
‘Kurt Lewin, Field Theories in Social Science, Harper and Row, New York, 1950.
a
Gates and gatekeepers Metaphorically, access to new technolgies will be controlled by gates operated by gatekeepers. However, Kurt Lewin’ has distinguished between gates operated by impartial rules and gates operated by individual gatekeepers. That is, there may be gatekeepers who apply uniform criteria (and thus may not be visible always to the society at large) and gatekeepers who apply subjective, capricious or inconsistent criteria. It is also possible for a gate to act on a first come, first served basis. Or certain classes of users (police, for instance) might have preferred access. Whether this unequal access would be preferable socially would depend on the preferences of the society involved. A simplified typology (Table 1) of gatekeeper criteria and the means of exclusion suggests how the concept can usually be applied to analyse questions of entry, access, and discrimination with respect to new service offerings. The most obvious aspect of this typology is the frequent linkage, in practice, of technical and economic criteria on the one hand, and the linking of ideological and governmental criteria, on the other. Technical gatekeepers appear to have the advantage of the ‘objectivity’ of science or the autonomy of technology on their side. This is itself an ideology, but it is one so pervasive as to be almost invisible. On the other hand ideological, and especially bureaucratic gatekeepers, are visible. Their decisions do not usually enjoy the same degree of consensus in Western society which is accorded to technological and TELECOMMUNICATIONS
POLICY March 1981
The disrincrion
Mwna of oxduabn
between carriage and content
or tnduabn
Knowbdga (of system) (of technique) Availabilii of propar equipment (chips, terminaLs.etc) ldeologii
Potii polii
oriantation and aamomic philosophy (nattonal origin; pally; race; languages)
P@wlogiil ness, ew
oItenta6on (preference for status quo; assertive-
Economic (market economy)
Prim of entry (to consumer) (not always same as costs) costaofproduction(toprovidet) capital availabilii anfl aXts
Bureaucratic - governmental
Ragulatton Incentives SUMdii
Taxes
economic means of exclusion or inclusion. For instance, the US assertions on the importance of ‘free flow of information’,6 portray the doctrine of free flow as essentially one in which only economic and technological criteria should randomly, fairly, and perhaps ‘objectively’ determine access to the means of communication, rather than ideological criteria or some governmental definition of the national interest which might reflect ‘prejudice’ or social world view. Similarly, entry to many common carrier systems depends, in theory, on explicit economic and technical criteria rather than implicit ideological or governmental criteria. Broadcasting, on the other hand, because of the scarcity of frequencies, has been forced to employ explicit governmental criteria, and implicit social and ideological criteria which, taken together, are a greater barrier to entry than the rather formidable technical and economic requirements of establishing a broadcasting undertaking. The legal framework for telecommunications, whether it already exists or is proposed, involves identifying possible constraints to access, and the criteria and/or rates to be employed in enabling entry of either producers or consumers. Carriage and content are not ignored, to be sure, but it is the boundary between them which is the arena for most of the regulatory and legislative action. Options For videotex, therefore, the interesting issues include questions of who will be the carrier and what will be the content.’ There is the following range of possibilities: (1) Carrier determines content, according to market needs, and profit potential. (2) Carrier determines content, as above, but within guidelines ‘For a critique see HI. Schiller, comnonicabbn established by law and/or regulatory agency. and Cu/futa/ Lbmhitiun. International Arts and (3) Carrier contracts or delegates to a third party who is responsible for SctencePress, Whtt Phins, 1976. content, as in (1) or (2) above. The party could even be *the See. for example, Nii L&UC. ‘Tetetexl and videotex in bkslh Arnatica-the Canadian community’. perapedtve’. Tekommunicstfons Policy, Vol 1, (4) Carrier marries public needs to private interests without need of No 4. 1960. pp 416; A. Ouimet. ‘Rationalizing . :aplanforacttorV, external pressures or regulations or appearing to influence content Canadii m unduly. P@scfLJe/fa, 1976; Parkhill. op tit, Ret 1. TELECOMMUNCIATIONS POLICY March 1981
The distinction
between carriage and content (5)
Access on a first come, first served basis without regard to (1) and (4) - or on a random-access basis.
In broadcasting, it is usually assumed that the broadcaster is also the carrier, but this is certainly not necessary. As Frank Spiller has argued,* the ‘exhibitor’ need not be the programme producer. In other words, the range of choices of carrier-content relations which a broadcaster has (except for option (3)) is independent of whether the content is the product of outside producers or comes from within the broadcasting company itself. A similar range of possibilities is available to cable companies and telephone companies. The cable industry prefers options (1) or (2) while the telephone companies lean towards (3), (4), or (5). Thus the range of carriage-content issues for videotex is comparable to those of existing broadcasting, cable and telephone media. Entry criteria for videotex users and IPs This problem is more easily solved once it has been decided whether or not ideological or sociopolitical criteria will be subsidiary to technical and economic criteria. At the moment, there appears to be a consensus in favour of technical criteria because of their ‘objective’ qualities. However, this apparent impartiality masks a whole set of sociopolitical assumptions which should be made more explicit. Hidden assumptions may be convenient, but if they mask trends not in the public interest, this should be exposed. At present, this concern is hypothetical because videotex is still a marginal technology. However, if it should ever ‘take off as its proponents anticipate, the precedents being established in the infancy of videotex technology will persist for a long time, just as they have in television. Therefore, as Canada begins to establish gatekeeping criteria for entry to a videotex system, it is important to establish principles consistent with Canadian needs and traditions in broadcasting and communications. One set of principles which meets this requirement is the following: The technology should be energy and material efficient. It should not encourage either directly or indirectly the inappropriate or wasteful consumption of energy or non-renewable resources. The cost should be reasonable, and not a significant barrier to use to, say, 95% of the population. The technology should be disseminated for its intrinsic value, not as a device to enlarge the telephone or cable networks, or to justify ‘usage sensitive pricing’, or the need for another communications satellite. Unwanted messages can be prevented (especially advertising) and privacy assumed with respect to messages sent and received, as well as records of information selected. Universality of access, and diversity of content should be sought. Canadian content should receive explicit preference over equivalent US content.
*Canadian Radiitelevision and TeleammunicaCanadian Bmadcasting and
tionsCornmissii.
T&xammunications: Past Experience, Futute Options, Canadian Government Pubhhing Centre, Ottawa, 1980, pp 104-105.
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Given the history of Canadian broadcasting communications, these principles should seem self-evident. However, what is equally evident and consistent with historical exp’erience is the improbability of achieving a system which embodies these principles, in the absence of some govemmental guidance or structures. Intentional design is necessary, during, not after, the current round of pilot projects. In fact, the pilot projects TELECOMMUNICATIONS POLICY March 1981
The distinction
between carriage and content
should be used to experiment explicitly with different forms of gatekeepers to test the degree to which the above principles are met, and how they might be met more effectively. This means experimenting both with ~~diiofexclusiveattentiontoa the form and content of videotex, as well as with institutional structures, groupof abshcws. however well founded. is tariffs, and other gatekeeping functions. that, by the nature of the case. you have Arguing for separation of carriage and content will subsume the most abstracted from the remainderof things.In so far as the excluded things are impoftant in your important sociopolitical questions under an apparently technical distincexperieme,yourmodesofthoughtarenotffttedto tion, and, even worse, may encourage people in the complacent assumpdeal with them. You cannotthinkwithoutabstractions;accordinglyit is of the utrmst importanceto tion that the mere assertion of two mutually exclusive categories will be vigilant in critically r&sing your modes of solve the boundary issue implicit in making the distinction in the first abstraction.’ Alfred Notlh Whiiehead, Science place. There is no need to suffer from what Alfred North Whitehead once and the Modem World, New American Library, called the ‘fallacy of misplaced concreteness’.P New York, 1948, p 56.
TELECOMMUNCIATIONS POLICYMarch 198 1
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