Everyone Supports the Open Internet*: Media Regulation and the Hegemony of Market Logics
Karen Petruska / University of California, Santa Barbara
Media regulation tends to be the purview of the attorney, the public servant, and the wonk; less often, it becomes a matter of broad public attention. One such moment of popular awareness occurred when comedian John Oliver devoted his long segment on HBO’s Last Week Tonight to the topic of network neutrality, during which he called upon all the internet trolls of the world to inundate the Federal Communications Commission (FCC) with comments about proposed rules allowing some paid prioritization deals between internet service providers (ISPs) and edge providers (see video clip below). With his show averaging four million viewers on TV, DVR, and on-demand, and with the clip of this specific segment earning almost seven million views on YouTube, Oliver made what he called “boring” policy the stuff of pop culture. The segment is hysterical and powerful, but it lacks something significant—a detailed solution for the problem. Nowhere does Oliver mention reclassifying broadband as a common carrier under Title II of the Communications Act of 1934, the favored resolution of many net neutrality proponents, from Free Press to Public Knowledge (for an excellent primer on these issues, see Danny Kimball’s “Things to Know about Network Neutrality” on MIP Research). Oliver may not have delved that deeply into paths to maintain net neutrality, but a recent FCC roundtable session focused entirely on identifying harms to the Open Internet and possible ways to counteract those harms.
In the first of the FCC’s nine roundtable sessions about the role of policy in protecting the Open Internet held in September and October of 2014, moderators Julie Veach and Matthew DelNero, the chief and deputy chief of the FCC’s Wireline Competition Bureau, worked hard to identify what are the possible harms to the openness of the web. Official titles of session members are listed here, but they included a policy advisor for Etsy (Althea Erickson), an experienced regulator who now runs a think tank that advocates for limited regulation (Randy May), a lobbyist for the Consumer Electronics Association (Julie Kearney), a network neutrality activist (Michael Weinberg), a telecomm industry representative (David Young), and a legal scholar (Barbara van Schewick). Dividing evenly among proponents of government action to protect the Open Internet and advocates for a much smaller role for the FCC, the panelists’ debate highlighted significant differences between the two sets of stakeholders. One thing both sides shared, however, was the extent to which market logics have permeated their rhetoric. To wit, “competition” was heralded as an unquestioned value, while old-fashioned notions like the public interest or a possible public utility role for broadband went unmentioned and unexamined. By adopting free market values as an end goal of policy actions, proponents of net neutrality protections have ceded too much ground to the opposition. Along the way, we have lost sight of core values organized about public needs and the civic role of communication technologies (see image below).
Despite the diversity of opinions among the panelists, everyone seemed to agree that the Open Internet is a good thing (see the FCC’s definition of that term here). Welcoming attendees, FCC Chairman Tom Wheeler reminded everyone, “If there has ever been any doubt, we are pro-Open Internet here at the FCC.” Kearney noted that the CEA supports an open internet, and Verizon’s Young repeatedly emphasized that his company supports openness because its customers demand it. Even Randy May, the advocate for the free market, conceded that openness is a positive term: “Openness in and of itself is a good thing. And it is. That’s a good thing.” As Public Knowledge’s Weinberg pointed out, “The Open Internet is critical to so many elements of our society and culture [that] even those who aren’t excited about an open internet feel compelled to pay lip service to it.” Granting that the panelists’ definitions of the Open Internet likely differed quite a bit, the term has nevertheless become ubiquitous, and in some ways, unassailable.
The fundamental disagreement among the panelists, then, was less about the value of protecting the web as it has long operated—as a system that defaults to sending packets of information through the most efficient pathways available, without discrimination based on the character or value of the sender or the content—and more about whether the government should play a role in the maintenance of longstanding web infrastructures and operations. Not only could session members not agree about current or prospective harms to the Open Internet, but they also differed dramatically in their view of the relative competitiveness of the marketplace, about whether they were discussing rate “discrimination” or “differentiation,” about the definition of openness, and about the broader value of government regulation. May (the free market proponent) and van Schewick (the professor) were seated next to each other, and frequently spoke directly to each other, yet without often looking at the other (see image below). They represent two extremes of the debate: experience versus research, slogans versus nuance. Their interactions also testify to the broader challenges facing network neutrality activists and all proponents of a stronger FCC—how to convey the complexities of industry operations and the variety of tools available to the FCC without losing sight of basic principles about the relationship between the media and democracy.
May had served as an attorney for the FCC forty years ago, and he exerted the authority of that experience throughout the session. Among the historical legacies he cited were the monopolistic regime of AT&T, the rate regulations that the FCC oversaw, the army of re-sellers that used to provide access to telephone service, and one specific anecdote that he referenced on three separate occasions: a speech in 1999 by former FCC Chair William E. Kennard in which Kennard equated the enforcement of non-discrimination policies with rate regulations. For May, history demonstrates one lesson: the FCC used to oversee an inefficient regulatory “morass” that deregulation and free market competition have overcome to provide genuine value for consumers.
For van Schewick and Weinberg, proponents of strong network neutrality regulation (bright-line rules), each historical anecdote offered by May produced a false equivalency. In fact, van Schewick felt it necessary to counter his intimations directly though disclaimers like the following: ““We are not talking about regulation data caps;” “I want to be clear that [among] the companies that have filed, [we are] not calling for price regulation or unbundling or that kind of system;” and “no one is proposing that we ban content delivery networks.” Frustration about misunderstandings rose such that at one point, while May was talking, you can hear a disruption, voices in the background, and someone assuring someone else (unnamed) that there will be time to reply. After May concluded his comment, the moderator turned toward Weinberg for a response but asked him to please remember the topic of the day—thus suggesting it was Weinberg who was trying to interrupt May’s prolonged comment the moment prior. A visibly annoyed Weinberg simply demurred and deferred, “I could sit here and mischaracterize Randy’s position for ten minutes, but I’m going to let Professor van Schewick respond.” The moment underscored that when introductions to the session predicted a “lively” conversation, “lively” was code for “hotly contested.”
The limits of the roundtable format became clear as each side’s perspective could be reduced to a “difference of opinion,” with the moderators never asking the panelists to find common ground. The absence of a media policy historian on the panel also became more apparent as there was no one present on the pro-regulation side who could comment specifically about the lessons to be learned from policy history (consider Horwitz 1989; Aufderheide 1999; Holt 2011 as just a few examples of such an expert). Proponents of government action needed to identify another culprit beyond a bloated regulatory apparatus for historical monopoly, inefficiency and lack of choice for consumers, as May was arguing. Without a historian on the panel, there was no one to suggest, for example, that the true problems of the past lay with an agency that prioritized industry concerns over public needs.
Another voice missing from this discussion, of course, is the consumer, or at least the “regular folk” consumer. While the panelists were all too eager to observe that they, too, are consumers of the internet (frequently noting that they pay for a higher level of service to guarantee satisfactory Internet speeds), low-income Americans and others who may not enjoy the same resources as the panelists operated at the periphery, always present, sometimes referenced, but constantly a cypher. It was May, the free-market advocate, who referenced the consumer most often, arguing that price differentiation (ISPs offering lower speeds or limited apps at a lower cost) benefits consumers looking for a deal. He also, it should be noted, dismissed the three million comments delivered by the public to the FCC about this issue as mere form letters, alongside a denial that he was “denigrating” them. Even when the public pursues a direct engagement with the regulatory process, then, their modes of engagement may limit the recognition of that contribution.
For May, Young, and other free market advocates, the ethics of broadband practices will be determined by the market—if consumers buy the product or service, then it must be satisfying them. Consumption, rather than the submission of official comments, is the most powerful expression of civic will, from a free market perspective. This has long been a totem of the media industries, a variation of the line that the ratings are an accurate reflection of public satisfaction with television content. This circular argument protects a system in which content distributors (television networks or internet service providers) serve as gatekeepers who determine to what content consumers have access in the first place. Kearney of the Consumer Electronics Association derided the “age-old debates [about government regulation] that have gotten us no further,” but it is the age-old debates that provide us with the clearest examples of possible harm when power within the media industries is held by too few hands.
Ultimately, the fundamental difference, which positioned Erickson, van Schewick, and Weinberg against May, Kearney, and Young, was the panelists’ attitudes to the overall value and beneficence of government regulation. In the starkest statement against regulation, May noted, “competition in the marketplace does serve, when it is effective, to replace regulation.” This faith in the ideology of the ethic of the free market so overwhelmed the proceedings that even the moderators joked about their regulatory role, expressing relief that because the panelists stuck to their time limits during introductions, they did not have to step in with “heavy-handed regulation.” In many ways, this session was designed to encourage a discussion of limited government action. The session title, “Tailoring Policy to Harms,” first necessitated that harms must be visible and then that the resulting policy must be finely tuned to address only that harm. This is an extremely limited view of the regulatory freedoms of the FCC, but it is one consistent with the larger neoliberal values driving our government today. Obama recently called for the re-classification of broadband services as a telecommunications service, which is a much stronger statement than he has made in the past (see video clip below). Notwithstanding, rumors about possible rules to be issued by the FCC suggest their approach will be more consistent with the commission’s recent history of capitulation to the market as the true regulator of our media industry. Until pro-regulation activists attack the central line that competition is a disinterested and neutral regulatory force, free market proponents will continue their march through Washington.
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