Net Neutrality Laws Lie in FCC Hands

by Terry JohnsonPhiladelphia Tribune

The imperfect founders of the Republic anticipated a struggle over freedom of the press. But surely they could not have imagined — and 10 years ago most people could not have imagined — that the democratic potential of the nation might turn on the outcome of a fight over freedom of access to the Internet.

Strip away the technical jargon and this name-calling brawl is about whether people have the right to talk to one another, write to one another and organize politically without the interference of large corporations.

The fight over net neutrality tears at old race, class and gender wounds that reflect deep, historic social and economic tensions.

Picture this: A stream of information flowing unfettered through broadband cables, antennas and satellite beams.

Then, suddenly, a filter designed by a big corporation is placed in the stream and filters out all information that does not increase its profit margins or supports its political and social visions.

With the U.S. Supreme Court’s decision freeing corporations to meddle in politics, and now the possible end of net neutrality, it all seems like a perfect concoction for a doomed democratic project.

In an era in which newspapers are disappearing, and a few corporations are tightening their monopolistic grip on broadcast media, the continuation of net neutrality is seen as vital to the future of the formation of communities and political possibilities.

The future of net neutrality will be determined in the streets and before courts and the Federal Communications Commission (FCC).

Malkia Cyril, of the Center for Media Justice, says that “decisions about network neutrality rules will determine Internet access and relevance for poor people, communities of color, and other marginalized groups now and far into the future.

“It will shape our media access, define — in part — our access to employment and education, and offer or deny platforms for advocacy and self-representation.”

Everyone is throwing everything into the struggle, which, in some ways, is tactically equal to the development of the civil rights, Black power and feminist movements.

Strategic framing has been an important battlefront. Broadband providers have tried to seize the high ground by co-opting the language of progressive movements (freedom, equality and diversity) to frame their arguments.

Under funded net neutrality proponents are organizing and educating from the bottom up, focusing on Internet users and those who can’t afford to use. Press releases are flying into media outlets from both sides and blog sites and YouTube posts are coming and going.

Black Caucus members have joined the fray, with a number of them coming out against net neutrality. Others, including the Asian American Justice Center, the Hispanic Technology & Telecommunications Partnership, the National Black Caucus of State Legislators, and the National Conference of Black Mayors joined them, too.

They argue that net neutrality could inhibit investment, cost jobs, and actually delay build-outs to underserved populations, which tend to be disproportionately rural and minority.

Critics argue that lobbyists have bought these anti-net neutrality politicians.

“Our elected servants are serving two masters,” said Chris Rabb, the publisher of the influential blog, Afro-Netizen. “The people who vote for them, their constituents and the lobbyists who fund their campaigns.

“We have a systemic issue around how to make our public servants do what is in the best interest of their citizens when the system prevents them from doing so,” he said.

“With regard to those people of color who are doing the bidding for big broadband companies, we have to shame them,” Rabb added. “The easiest way of doing that is putting them into the same buckets as Glen Beck and others like him, who represent conservative views but lack facts to back them up.”

Late last month FCC Commissioner Mignon Clyburn responded, saying that network neutrality is not a threat to minority advancement, but smart regulation that will help avoid the "damage" done to diversity by radio and TV deregulation, which resulted in a sharp decline in minority owners of radio stations.

As a result, in some big cities, such as Philadelphia, there is only one Black-owned radio station and it is a low powered AM station that is barely heard after the sun goes down.

"Together we must ensure that people of color — and all Americans — can participate as owners, employees and suppliers online," she said. "That cannot happen, however, if we passively permit a new set of gatekeepers to erect yet another set of barriers to entry."

The Black left has come out swinging too, offering a brazenly hot, but sobering critique in which they frame African American supporters of the drive to end net neutrality as servants of big telecom.

Bruce Dixon, the managing editor of the influential blog, BlackAgenda Report, thinks that an end to net neutrality is would be a disaster for communities of color.

 Explaining why Black elected officials and others would oppose net neutrality, Dixon observed: “The independence of Black American leadership is under assault by a tsunami of cash. Unprecedented levels of corporate underwriting are subverting Black civic organizations.

“Tens of millions in faith-based federal grants have been deployed to suborn Black clergy. Rivers of charitable and campaign contributions have been invested in subduing or silencing the voices of African America elected officials. Predictably, the onslaught is taking its toll.”

The legal battle over net neutrality was ratcheted up two years ago when Comcast blocked its broadband subscribers from using BitTorrent, an online file-sharing technology.

The FCC then issued rules requiring Internet broadband providers to give equal treatment to all data streaming through their networks. The FCC rules were designed to prevent the abuse of phone and cable companies from taking over control of the high-speed Internet access market.

There are only a few companies that dominate the broadband industry. During the early days of the Internet, the 1990s, there were more than 7,000 service providers. Now it is just the three: Comcast, Verizon and ATT and all of the companies oppose net neutrality.

The country’s leading Internet companies, including Google and Skype, contend that without net neutrality broadband providers will prioritize traffic based on financial status, creating a social stereotype for Internet customers.

Comcast declared that the FCC had no authority to regulate the Internet and the fight was on.

The broadband giant rounded up its lawyers and opened its multi-billion dollar vault and starting slipping cash into the hands of almost anybody who would listen and agree with them.

Comcast hired Helgi C. Walker, a partner in the law firm of Wiley Rein LLP. She has a reputation for winning on behalf of Fortune 500 companies. She represented Coors Beer Company when it refused to pay Puerto Rico's beer tax. She won that case.

She helped big-time media companies challenge FCC's children's television rules. She won that one too. That victory is the reason why television stations can put anything they want during the hours that used to be devoted to education programs.

Austin Schlick, the FCC’s general counsel, represented the commission. Schlick, a competent lawyer, was, according to some observers, overmatched going up against Walker and her highly paid team of attorneys, researchers and assistants.

Walker set out to prove to the U.S. Court of Appeals for the District of Columbia Circuit that the FCC had no power to regulate Comcast’s broadband business.

If her argument was not entirely plausible, she was, apparently, persuasive.

During oral arguments, Judge A. Raymond Randolph ominously warned Schlick that the FCC acted based on policy statements that were "inspirational, not operational," which seemingly indicates that the agency could not legally regulate the Internet and enforce net neutrality.

A final ruling is expected in the spring.

Despite the judge’s warning, FCC Chairman Julius Genachowski still thinks the agency has a chance of receiving a favorable ruling.

In the event it does not win the case, the FCC says it will ask Congress to pass "open Internet" legislation. The aim of that legislation would be to give the FCC the clear authority the agency needs to regulate broadband services.

"Our hope is that there's an outcome that preserves a free and open Internet and accomplishes what we're in this game to do," he said during the recent Consumer Electronics Show in Las Vegas.

“Depending on the outcome of this case, all aspects of broadband regulation could be threatened,” Malkia Cyril of the Center for Media Justice warned in a memo to supporters. “To win any of the public interest protections we seek, and to hold powerful private interest groups at bay, the FCC must maintain jurisdiction.”

White House and Congressional politics will play a critical role.

In a YouTube question and answer session after the State of the Union address, President Obama said he remains committed to net neutrality despite a push-back from large Internet service providers who want to "extract more money from wealthier customers."

He said efforts to dump net neutrality "runs counter to the whole spirit of openness that has made the Internet such a powerful engine not only for economic growth, but for the generation of ideas and creativity."

The stage for a rancorous legislative session over the issue was set during the presidential campaign.

Even back then, big telecom’s money was riding on John McCain, who was the top recipient of campaign contributions from the telecom industry, taking in $894,379 in between 2007 and 2008.

In the Senate, McCain introduced the “Internet Freedom Act,” which would have abolished net neutrality.

Conservatives in Congress are sure to label proponents of net neutrality as “socialists.” Supporters will claim that the right wing represents a whiff of fascism in the air of the nation.

There will be no clear lines of demarcation. The grounds will shift in Congress and — as with the health care debate — within the Obama administration.

James Rucker, of the Internet organization Color of Change, has already wondered out loud in an open letter published in the Huffington Post why some leaders of people of color would oppose net neutrality given the possible harm it could cause to the powerless.

“They claim,” he says in reference to net neutrality opponents, “that if broadband providers can earn greater profits by charging content providers for access to the Internet "fast lane," then they will lower prices to underserved areas.

“In other words, if Comcast — which already earns 80 percent profit margins on its broadband services — can increase its profits under a system without net neutrality, then they'll all of a sudden invest in our communities. You don't have to be a historian or economist to know that this type of trickle-down economics never works and has always failed communities of color.”

In his own open letter responding to Rucker, Navarrow Wright, President Maximum Leverage Solutions and an opponent of net neutrality, accused Rucker of the reciting talks points of Google, which opposes regulation of the Web.

Then Wright in his letter in the Huffington Post got personal: “You (Rucker) might not understand why they (some Black leaders) don't trust the FCC to get it right. Understandable mistakes if this is your first foray into media and communications issues ... but there is a long history behind their deep skepticism and it makes sense that they would question the FCC on its intended course of action.”

Rucker followed up with another open letter. “My hope in writing my first post was that it might encourage civil rights leaders who have opposed or questioned net neutrality to publicly explain their positions. Given what's at stake, I think its incumbent on leaders opposing or questioning net neutrality to publicly make clear why. Unfortunately, none have done so.”

Dixon, in his online article, expressed a broader, and more important concern: “In the generation since the Freedom Movement ended, corporate forces have all but extinguished the internal political conversation of Black America, by doing away with news programming on Black-oriented and other media, and by assuming the role of chief funders for Black elected officials and mainline civil rights organizations.”