Comcast, Time Warner Cable, AT&T, and Verizon have been operating as a virtual monopoly for years and a look at their balance sheets shows it. America’s online infrastructure continues to lag behind that of other countries around the world, while the big four telcos and cable companies have been enjoying anywhere from 6.3 to 7.7 times as much revenue as they’ve spent on capital improvements over the last few years. That’s the continuation of a trend that began in the mid-2000s, one that has seen them making more money than ever before. But if a federal circuit court rules in favor of Verizon in a case currently before it, those major corporations could soon be completely flush with cash by comparison – and Internet freedom could suffer as a result.
Verizon filed suit against the Federal Communications Commission in 2010 over the newly implemented non-discrimination rule, part of the FCC’s Open Internet Order intended to prevent internet carriers from blocking or otherwise impeding access to any legal website. The company made two big claims in its suit. First was that the FCC overstepped its legal authority with the Open Internet Order and the nondiscrimination rule by preventing the ISPs from setting prices for the use of their infrastructure. The ISPs have long sought to institute tiered pricing for data consumption, despite the fact that high rates of data usage doesn’t affect the functioning of the network. The nondiscrimination rule was the first government regulation to prevent them from doing so.
The second claim was that the rules “strip(s) providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others’ speech.” The idea that a company providing a public utility has the right to determine who gets to use it and for what purposes is a big leap from the status quo, but that’s not what this case is going to be decided upon. Instead, the same judges who struck down the FCC’s previous attempts to regulate net neutrality appear likely to rule that the entire Open Internet Order imposes common carriage requirements that violate the Communications Act. It comes down to a difference between how the act differentiates between “radio transmissions,” “information services,” and “telecommunications services” – even though mobile wireless, cable broadband, and landline telephone services have long since become parallel channels from transmission of all sorts of data. The Act only allows the regulation of telecommunications services as common carriers. (There’s a good rundown of the details here.)
The potential range of social costs of a ruling in Verizon’s favors could be broad indeed. As Barbara van Schewick of the Center for Internet and Society wrote in a paper last year, the neutrality that was baked into the internet from its beginnings has allowed it to “foster application innovation, improve democratic discourse, facilitate political organization and action, and provide a more decentralized environment for social, cultural and political interaction in which anybody can participate.” Moving away from the environment that has allowed these things to flourish would necessarily mean less innovation, less democratic discourse, less political organization, and less cultural interaction – all so that cable companies are free to create new fees to their shareholders’ content.
If Verizon gets its way and the court decides that companies like it have a right to decide what speech is transmitted over their networks, the immediate concern is that small content providers who make up much of the internet’s diversity – and from whom much of the innovation online has traditionally come – will be shut out because they simply won’t be able to pay the fees that ISPs will set. Anyone who’s ever been able to leave an unsatisfying career thanks to the Internet is likely to find themselves faced with a decision of either returning to the world of day jobs or paying rent to the ISPs so they can continue the work they’d previously done without major overhead. That diverse group ranges from independent journalists to musicians, from webcam models to comedians and podcasters, all providing services that people can’t get from the corporate content providers who have no incentive to market to what they consider niche audiences. Even online poker players, who can play more games at lower stakes for higher profits than they ever could in a live casino, could see their options limited if the ISPs get to call the shots.
Beyond an immediate reduction in diversity, giving ISPs the freedom to impose new costs on anyone using the Internet to deliver content leaves the entire Internet in a politically vulnerable position. After all, their right to monetize the infrastructure they long ago paid for is only unfettered as long as Congress decides not to address it by law. Demagogues who worm their way into oversight position in Congress could hold hostage anybody they put in their sights. Just as payment processors were used as middlemen to cut Wikileaks off from the people online who were willing to donate money to the upstart journalistic organization, ISPs could be used as censorship agents against anybody who presents a threat, real or perceived, to the status quo. Anybody who depends on an Internet presence to do their work would be in constant danger of losing their connection to the world.
A ruling in the Verizon case hasn’t been handed down yet, so there’s still a chance the circuit court will side with a free and open Internet. But it’s looking more likely that the Internet we’ve watched evolve over the last 20 years will soon be a thing of the past.