Here’s a question: Do you think of a home Internet connection more like a landline telephone service or more like a cable television service? Let’s consider. A landline phone lets you make and receive calls to anyone you want. CenturyTel doesn’t decide who you can talk to or charge you more to call certain people. Cable television, on the other hand, is a package deal, and a cable provider like CableOne decides what channels you can access. “Basic cable” only gets you bare bones, and you have to pay extra for access to different channels such as the Golf Channel or Al Jazeera or HBO — if you have the option of accessing them at all.
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Up to now, home Internet connections are mostly treated like phone lines — you have access to whatever sites you want, and you pay the same amount whether you’re visiting Bing or Google or Joe’s Blog or The New York Times. You might pay more after reaching a set data limit, but it doesn’t matter what sites you visited to rack up all those gigabytes. This is the basic idea of “network neutrality,” the thing that gives the open Internet its promise. It is a level playing field for anyone who wants to participate.
Last week’s Verizon v. FCC (PDF) appeals court decision changes things, and it should come as no surprise. Despite the terribleness of the ruling, the court was correct to find that the FCC’s own rules, established in 2002 under chairman Michael K. Powell, prevent it from regulating the Internet like a phone line, what’s called a “telecommunication service.” In 2002, the FCC elected to classify cable modems in the same category as cable television, as an “information service.” The idea is that an “information service” has some kind of editorial control over what kind of content it wants to provide whereas a “telecommunication service” is just an open pipeline into your house. Since the 2002 rule, we’ve known this was a mistake that threatened the openness and neutrality of the net. Last week’s ruling says there’s no question.
The Verizon case centers on the FCC’s “Open Internet Order,” which was issued in 2010 and bars providers from blocking or discriminating against lawful content. It’s pretty simple. Verizon says the FCC’s own rule classifying the web as an “information service” prevents it from issuing regulations about content. That’s a legitimate beef under the law, and the court agreed. But that wasn’t enough for Verizon, which also claims a First Amendment right to control content and a Fifth Amendment right not to have its property controlled by the government. These claims should be laughable, but the human-like privileges granted to corporations — artificial creations of the state — apparently make these otherwise insane notions plausible.
Of course, Verizon and other web providers tell us to trust them — they have no plans to shake up the web. But Verizon’s own lawyers tell a different story. In oral arguments, Verizon lawyer Helgi Walker described a desire to give priority to those websites and services willing to pay for better access and block content from sites that aren’t willing to pay a premium. It’s not hard to see how this anti-competitive practice would mean smooth sailing for the established media giants and tough cookies for everyone else. It also means consumers would end up paying more to cover the access fees that sites like Netflix might have to pay.
More importantly, the deregulatory “trust us” story is nothing new, and we know it’s a lie. The Telecommunications Act of 1996, for example, was meant to usher in a new era of competition, and we got just the opposite. The number of companies that control most of our media went from around 50 in the 1980s to six today, and local media has been decimated. What we’re left with is the illusion of infinite choice when what we really have is one oligopolistic corporate voice controlling nearly everything we read, see and hear.
What happens now? The FCC can appeal last week’s ruling, but that doesn’t make much sense. There’s really no question that the FCC’s own classifications make the Open Internet Order problematic. Most people who are concerned about this are calling for the FCC to treat the web like a phone line and reclassify it as an “information service,” also known as a “common carrier” under Title II of the Communications Act. This sensible solution would empower the FCC to preserve the web’s open structure.
What’s likely to happen? Not much. The telecommunication industry is one of the biggest lobbying groups in the country, and it exerts tremendous influence over the FCC, which is often thought of as a classic “captured” agency — one that is run by the very people and businesses it’s supposed to be regulating. The “revolving door” between the FCC and industry is evident in President Obama’s recent appointment of new FCC chairman Tom Wheeler, a telecom lobbyist and venture capitalist who sends mixed messages about his policy preferences.
More importantly, this is a complicated issue that’s just not on most people’s radars, despite fascination among media watchers. Policy scholars describe this type of issue — one with “high complexity” and “low salience” — as one that’s destined for industry control. Furthermore, theorists, policymakers and even the public are often obsessed with economic and procedural efficiency and administration without attention to the big picture. As policy scholar William T. Gormley wrote in 1987, “As a people, we are more comfortable discussing procedural rights than the allocation of scarce resources.” Gormley and others foresaw the digital revolution and the immense opportunities it would bring for democratic governance. As Gormley wrote of cable television, “If designed with democratic purposes in mind, cable television could provide a vehicle for public education, a forum for public debate, and an instrument for public feedback.” He thought cable could “focus the public’s attention on issues” and “revitalize America’s democratic experiment at a time of diminishing public support for political institutions.” I hope he doesn’t watch cable news.
Now the web is about to go the way of our other communication policy failures that go back at least as far as the handing over of radio’s public airwaves to commercial broadcasters in the 1930s. When the FCC issued the Open Internet Order in 2010, then FCC commissioner Michael Copps, who favors net neutrality, told The New York Times that he wanted to make sure the Internet “doesn’t travel down the same road of special interest consolidation and gate-keeper control that other media and telecommunications industries — radio, television, film and cable—have traveled. What an historic tragedy it would be,” he said, “to let that fate befall the dynamism of the Internet.”
There’s much more we could do to give ourselves a more democratic communication system and keep pace with the rest of the developed world. We’re already getting reamed when it comes to our slow, overpriced web services. South Korea leads the world in connectivity, speed and affordability. Finland has vowed to connect every citizen by 2015. The United Nations thinks Internet access should be a basic human right, considering the opportunities it affords and the difficulty of living a modern life — finding work, accessing information — without it.
Meanwhile, we have Verizon. Even the company’s marketing slogan is clear: “Countless reasons. One choice.” Indeed. Here in the U.S., the web’s potential is increasingly being squandered. I wish I felt more optimistic, but I’m afraid the outlook is bleak. Too many people remained wrapped in the warm embrace of what seems like a digital utopia — like Huxley’s Brave New World—but our “almost infinite appetite for distractions” risks blinding us to the real threats to our American experiment.
The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University, the Center for Idaho History and Politics, or the School of Public Service.