A setback for Internet freedom

April 19, 2010

Brian Napoletano reports on a recent federal court ruling that gives the telecommunications industry frightening control over the way that we access the Internet.

A FEDERAL court declared unanimously April 6 that media corporations--and not the public--can dictate who uses the Internet and what they use it for.

Unless the Federal Communications Commission (FCC) decides to reclassify the broadband Internet access industry from an "information service" to a "telecommunications service," the court's 3-0 ruling could block the government agency from preventing Internet service providers (ISPs) from barring access to certain Web sites or Internet services.

The ruling by the U.S. Court of Appeals for the District of Columbia stems from a battle between the FCC, the primary regulatory agency of the media industry in the U.S., and Comcast, the nation's largest Internet Service Provider (ISP)--over Comcast's authority to prevent its customers from accessing certain Internet services.

In 2007, it was discovered that Comcast was blocking access to BitTorrent, an Internet service designed to facilitate the exchange of large files between users--such as videos and free software applications (for example, versions of the Linux operating system).

FCC Chairman Julius Genachowski
FCC Chairman Julius Genachowski

After several complaints, public hearings and multiple investigations concluding that, despite Comcast's claims to the contrary, the company was deliberately blocking traffic, the FCC issued a 67-page statement ordering Comcast to stop blocking BitTorrent traffic. Comcast responded by challenging the FCC's authority to regulate its Internet services, leading to the federal court taking up the case and ultimately ruling in favor of Comcast.

Beyond granting Comcast the authority to block BitTorrent traffic, the ruling has broad implications for the FCC's ability to enforce "network neutrality" (or "net neutrality") obligations on ISPs. "Net neutrality" refers to the principle that ISPs should not interfere with users' access to Internet content.

In a June 2006 Washington Post column, media scholars Lawrence Lessig and Robert McChesney referred to net neutrality as the idea that "all like Internet content must be treated alike and move at the same speed over the network. The owners of the Internet's wires cannot discriminate."

In other words, ISPs should not be able to prevent users from accessing certain Web sites or Internet services--nor should they be able to charge users more for access to sites like, for example, SocialistWorker.org or DemocracyNow.org than they charge for access to CNN.com or WallStreetJournal.com.

THE RATIONALE behind this principle stems from the nature of communication networks like telephone, cable and broadband data networks and the resources required to develop them.

With the exception of the postal service, policymakers in the United States have repeatedly looked to private corporations instead of public initiatives to develop such communication networks. Implementing a communication network in a community, however, requires access to a substantial investment in resources like wires, data switches and the labor needed to install everything.

Leaving this up to private industries means that, inevitably, a small number of very large corporations will end up controlling access to these networks (the wired telephone network was actually monopolized by a single corporation, American Telephone & Telegraph--AT&T--until it was broken up in 1984), and users in a particular community typically do not have access to more than one network provider.

Consequently, these corporations effectively become gatekeepers, controlling who accesses what information on their networks. When these gatekeepers also offer services on their networks, there is a strong incentive for them to undercut competing services by restricting their competitors' access to the network.

Comcast, for instance, was investigated by the FCC in 2009 after suspicions were raised that it was degrading the quality of other Voice over Internet Protocol (VoIP, essentially Internet telephone) services, but not its own Digital Voice Service.

A more serious incident occurred in 2007 when AT&T censored lyrics critical of then-President Bush from its Webcast of a performance by Pearl Jam.

To prevent such censorship from becoming commonplace on the Internet, advocates of net neutrality maintain that ISPs must not be allowed to dictate what information is communicated over their networks. For many, this notion of free access to information is a fundamental principle of democracy, and has been endorsed not only by liberals and progressives, but by groups as far to the right as the Christian Coalition of America and the Gun Owners of America.

The federal court ruling, however, effectively states that the FCC does not have the authority to enforce this neutrality principle.

When asked about the implications of the ruling in an interview on Democracy Now!, Josh Silver, co-founder and executive director of the media reform group Free Press, explained:

People have to remember, all media--television, radio, phone service--every type of media other than the printed page, will soon be delivered by a broadband or Internet connection. That means these wonky sort of arcane rules that are being played out at the Federal Communications Commission and in the [April 6] court ruling will shape the media for generations...It will really determine whether or not we will have a 21st century Internet economy, or whether we'll continue to lag behind the rest of the world.

Silver and McChesney have also pointed out the dangers of allowing corporations to control what information is available to the public, and the threat that this would pose to any form of democracy.

In light of the widespread support for net neutrality, media policy analysts have identified three possible ways in which the court ruling could be countered. First, the Supreme Court could reverse the federal court's decision--but Silver and others have said that this is highly unlikely.

The second possibility is that Congress could specifically mandate that the FCC regulate Internet access and defend net neutrality through legislation. While this would offer the most effective long-term protection for net neutrality, the likelihood of Congress issuing such a mandate is extremely small, especially when telecommunication industries consistently rank among the top lobbyists in Congress--having invested more than $118 million in their 2009 efforts.

The third, and most plausible, scenario is that the FCC could reverse a decision it made under the Bush administration in 2002 to classify broadband providers like Comcast as "information services" instead of "telecommunications service providers." This reclassification would give the FCC the authority to regulate ISPs to enforce net neutrality and to mandate that they expand broadband access in low-income areas.

While this would be the most straightforward way to defend net neutrality, widespread public pressure will most likely be needed to push the FCC into acting.

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