A Federal Court of Appeals recently threw out proposed regulations by the FCC which limited internet service providers’ freedom with respect to authors, publishers, and other information providers who utilized the ISPs’ services to distribute their info. ISPs were to be treated as “common carriers” an ancient regulatory model (dating from 16C England and applying to ferry companies, bridge operators, and other transportation service providers), placed under FCC regulations, and required to treat all customers the same. For example, Comcast/Xfinity couldn’t make sure that its own streaming channels went through the network faster than Disney/ESPN services.
The rubric for this regulatory regime is “net neutrality.” It has generally been pushed by Democratic administrations and the FCC Chair-designate has indicated his opposition to the concept, thus ensuring that the Commission won’t be reviving them for at least four years.
My interest is less in the specific court rationale in this decision (which has to do with the relative power and responsibilities of the legislative and judicial branches) than with the jostling for power among the various service providers in the tumultuous world of internet/information. I have some experience in this area, having been a regulatory lobbyist for ATT/PacBell/PacificTelesis for fourteen years, then General Counsel of two internet companies (and two years at the FCC before then). It was another era to be sure—back in the 1980s and ‘90s—but while technology has certainly changed, some key things haven’t.
To illustrate this, I’m going to quote Jim Graf, a mentor of mine when I was a junior FCC policy-maker. Jim told me: “Some people (i.e. industry lobbyists) come in here (to propose or oppose some policy change) and pound the table and tell us about all the economic impact; and, you know, it’s the money that’s at stake. Other people come in here and pound the table and tell us about the great principles (e.g. First Amendment, “fair” competition) at risk; but, you know, it’s the money.”
So, I can tell you, whether it’s telephone companies, social media, databases, AIs, cable companies, ISPs, publishers, cellular companies, broadcast stations, networks, start-ups, incumbents, investors, they’re all capitalists out to get an edge on their competition/customers/suppliers. The lobbyist’s job is (my job was) to come up with clever arguments (wrapped in the holy cloth of advancing the “public interest” that was the nominal basis of the agency’s decision) that would benefit my company/client.
The regulators are in the unenviable position of trying to keep up with much better staffed and resourced supplicants and try to figure out some policy that will advance their own political proclivities. The FCC, in particular, has been struggling with this for about 70 years in the context of rapidly changing technologies and markets, usually trying to apply outdated legislative direction (which is quite applicable today where the last major telecom legislation was approved almost 30 years ago).
The “net neutrality” rubric was a nice phrase to make the case of information providers look pretty. Let’s not shed too much of a tear for the likes of Disney/Apple/Meta. Nor, for that matter, for the broadband service providers (Comcast/ATT/Verizon). None of their executives has missed a meal and their principal competition is the size of their stock option packages. There are myriad ways in which service providers can subtly tilt the “level playing field” to their own advantage.
In this case, the broadband carriers (even if they have their own information services (e.g., Xfinity is co-owned with NBC) have traditionally been exempt from this kind of regulation since they were making decisions about what information to make available to their customers (which sounds a lot like publishing protected from government intrusion under the 1st Amendment). Making them treat folks like the NYT or other information providers equally looks sensible on its face, but it’s pretty much the same as requiring the NYT to run a column by Steve Bannon every week; i.e., it smacks of government censorship.
So, “net neutrality,” shorn of its innocuous name is a highly problematic policy; one which the courts have repeatedly nixed. Whether some other (Democratic) administration tries again we will leave to the future. If so, the FCC could sure use some help/clarity from Congress about how to handle this delicate balancing act.
It's no accident that this is happening as Musk’s “X” and Zuckerberg’s Meta are sloughing off their roles as reviewers (censors?) of the content posted on their sites. Both are turning into publishing platforms with (mostly) outsourced content generation and are, unsurprisingly, trying to have it both ways (see above re: capitalist motivations). They want the benefit of drawing eyeballs without being responsible for what is published on their platforms. Meanwhile, the broadband ISPs want the benefit of drawing eyeballs (data traffic) without being subject to FCC regulation.
In both cases, corporate types are maximizing profit opportunity with little regard for societal impacts. It’s pretty clear that social media is accelerating the polarization of civic discourse and undermining concern with accuracy that is the foundation of a coherent society. A few states and countries are at least starting to protect young people by trying to limit their access to such corrosive “information” streams. But dealing with the underlying problem will require fresh thinking about the nature of society, debate (“facts”), and government regulation. Adapting traditional public health rationales to the information age will mean that we will have to make clear that the 1st Amendment is not an absolute (no protection for shouting “fire” in a crowded theater) even while remembering that government is crappy at making subtle and adaptable standards.
This is far more important than “net neutrality,” but the latter amply illustrates that the policy/law making process is kludgy and that the big players can only be trusted to take care of their own pocketbooks.
The rubric for this regulatory regime is “net neutrality.” It has generally been pushed by Democratic administrations and the FCC Chair-designate has indicated his opposition to the concept, thus ensuring that the Commission won’t be reviving them for at least four years.
My interest is less in the specific court rationale in this decision (which has to do with the relative power and responsibilities of the legislative and judicial branches) than with the jostling for power among the various service providers in the tumultuous world of internet/information. I have some experience in this area, having been a regulatory lobbyist for ATT/PacBell/PacificTelesis for fourteen years, then General Counsel of two internet companies (and two years at the FCC before then). It was another era to be sure—back in the 1980s and ‘90s—but while technology has certainly changed, some key things haven’t.
To illustrate this, I’m going to quote Jim Graf, a mentor of mine when I was a junior FCC policy-maker. Jim told me: “Some people (i.e. industry lobbyists) come in here (to propose or oppose some policy change) and pound the table and tell us about all the economic impact; and, you know, it’s the money that’s at stake. Other people come in here and pound the table and tell us about the great principles (e.g. First Amendment, “fair” competition) at risk; but, you know, it’s the money.”
So, I can tell you, whether it’s telephone companies, social media, databases, AIs, cable companies, ISPs, publishers, cellular companies, broadcast stations, networks, start-ups, incumbents, investors, they’re all capitalists out to get an edge on their competition/customers/suppliers. The lobbyist’s job is (my job was) to come up with clever arguments (wrapped in the holy cloth of advancing the “public interest” that was the nominal basis of the agency’s decision) that would benefit my company/client.
The regulators are in the unenviable position of trying to keep up with much better staffed and resourced supplicants and try to figure out some policy that will advance their own political proclivities. The FCC, in particular, has been struggling with this for about 70 years in the context of rapidly changing technologies and markets, usually trying to apply outdated legislative direction (which is quite applicable today where the last major telecom legislation was approved almost 30 years ago).
The “net neutrality” rubric was a nice phrase to make the case of information providers look pretty. Let’s not shed too much of a tear for the likes of Disney/Apple/Meta. Nor, for that matter, for the broadband service providers (Comcast/ATT/Verizon). None of their executives has missed a meal and their principal competition is the size of their stock option packages. There are myriad ways in which service providers can subtly tilt the “level playing field” to their own advantage.
In this case, the broadband carriers (even if they have their own information services (e.g., Xfinity is co-owned with NBC) have traditionally been exempt from this kind of regulation since they were making decisions about what information to make available to their customers (which sounds a lot like publishing protected from government intrusion under the 1st Amendment). Making them treat folks like the NYT or other information providers equally looks sensible on its face, but it’s pretty much the same as requiring the NYT to run a column by Steve Bannon every week; i.e., it smacks of government censorship.
So, “net neutrality,” shorn of its innocuous name is a highly problematic policy; one which the courts have repeatedly nixed. Whether some other (Democratic) administration tries again we will leave to the future. If so, the FCC could sure use some help/clarity from Congress about how to handle this delicate balancing act.
It's no accident that this is happening as Musk’s “X” and Zuckerberg’s Meta are sloughing off their roles as reviewers (censors?) of the content posted on their sites. Both are turning into publishing platforms with (mostly) outsourced content generation and are, unsurprisingly, trying to have it both ways (see above re: capitalist motivations). They want the benefit of drawing eyeballs without being responsible for what is published on their platforms. Meanwhile, the broadband ISPs want the benefit of drawing eyeballs (data traffic) without being subject to FCC regulation.
In both cases, corporate types are maximizing profit opportunity with little regard for societal impacts. It’s pretty clear that social media is accelerating the polarization of civic discourse and undermining concern with accuracy that is the foundation of a coherent society. A few states and countries are at least starting to protect young people by trying to limit their access to such corrosive “information” streams. But dealing with the underlying problem will require fresh thinking about the nature of society, debate (“facts”), and government regulation. Adapting traditional public health rationales to the information age will mean that we will have to make clear that the 1st Amendment is not an absolute (no protection for shouting “fire” in a crowded theater) even while remembering that government is crappy at making subtle and adaptable standards.
This is far more important than “net neutrality,” but the latter amply illustrates that the policy/law making process is kludgy and that the big players can only be trusted to take care of their own pocketbooks.
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