“The decision, however, is not the final battle, nor does it represent a solid triumph for the voices for pluralism. It may be overturned by Congress or undone by the courts. As such, it is undoubtedly an important chapter in the future of the Internet, but we don’t know if it will be decisive.”
Silvio Waisbord (*)/ United States, April 2015
There is no doubt that the decision of the Federal Communications Commission (FCC) of the United States to favor “net neutrality” is an important milestone. On February 26, with a vote of three to two, the FCC issued its strongest ruling to date on the need to preserve open internet without limits on content imposed by service providers. This is a signal in favor of those who oppose allowing the Internet to become a space of unequal access to information and digital communication. It is a vote of confidence for those who feel that it is necessary to regulate certain aspects in order to guarantee free access to the entire Internet without onerous tolls that generate and perpetuate differences.
Was the decision surprising? If one looks at the political origin of the votes, there are no surprises. After President Obama publicly expressed his opposition to the idea that the Internet might become a highway with differentiated lanes, it was to be expected that both the Director and the two Democrats on the FCC would vote in favor of net neutrality and that the two Republican members would vote against it. Recall that Obama urged the FCC to reclassify broadband Internet service as a telecommunications service in November 2014, which means thinking about the Internet as a public good with the same regulations as services like electricity and water.
Whether the final decision was influenced by unprecedented citizen participation in the form of nearly four million comments, the majority of them in favor of neutrality, remains a matter of speculation. The great majority of those comments were issued after Last Week Tonight host John Oliver, a journalist-comedian who hosts the cable TV show, ironically and sharply criticized the position in favor of deregulation and called upon his audience members to express their opinions.
However, this decision is not the final battle, nor does it represent a solid triumph for the voices for pluralism. It may be overturned by Congress or undone by the courts. As such, it is undoubtedly an important chapter in the future of the Internet, but we do not know if it will be decisive.
Before the ink was dry on the ruling, its opponents mobilized legal troops to continue the dispute via other channels. There are currently two trials underway, one initiated by a group that represents service providers and the other on behalf of a broadband company.
This is not surprising given that political disputes in the U.S. tend to move to the courts and the domain of legal studies in Washington. All negative decisions are met with a nearly instantaneous instinct to litigate over what is politically lost. As such, it is not an exaggeration to say that the people who celebrated the FCC decision the most were the attorneys who will now have months if not years of intense work ahead of them.
It is also wrong to think that the decision implies the uniform success of democratic positions that look to protect the Internet as a free and democratic space. The alliance that sustains the partial triumph is more heterogeneous than a quick reading would suggest. While the decision reflects a struggle between regulators and deregulators, Democrats and Republicans, civil society and corporations, it is more complex because it represents a dispute between two coalitions with different motivations.
The anti-regulation front is politically led by Congressional Republicans who wave the flags of free market approaches and consider any regulation that would interrupt the supposedly natural cycle of the market to be heresy. These are the people who have threatened to decrease FCC funding and use other means (such as reducing alternative funding sources and the appointment of its members) to penalize a federal government agency for daring to meddle where it shouldn’t. They warned that the value of the major telecommunications companies would plummet if the FCC approved neutrality. They claimed that regulation would lead to higher prices for consumers, slower connections, and the loss of competitiveness, particularly with Europe. They launched ominous forecasts of lower investment and competition given that they believe that regulation reduces business incentives.
Beneath the ideological verbal enthusiasm and descriptions of an apocalyptic situation lie the interests of broadband and wireless service providers such as AT&T, Comcast, Motorola, and Verizon, which are fighting any type of regulation. They embody big business, the industry Establishment. Comcast and Time Warner control around 65% of broadband access, and AT&T and Verizon control a similar percentage of the cellular telephony market. This group of companies has generously financed think tanks and foundations that propagate anti-regulatory discourse. There is no doubt that the companies with enormous economic resources turned their support towards defeating the decision. Others, like Facebook and Google, did not openly take a side.
While this position embodies the Goliath of large corporations, it does not imply that the other side is merely the humble David of public interest. There was an unequal alliance that included the giant Sprint, increasingly important companies like Tumbler (but which are miniscule compared to the economic power and political influence of the telecommunications giants), progressive and liberal associations, civil society activist organizations, and academics. The partial triumph thus has a special flavor considering the differences of power between the two sides.
But we cannot forget that there is a cast of intersecting and opposing interests in the regulation of the Internet. The decision favors dominant actors in specific areas such as Facebook (social media), Amazon (commerce), Netflix (movies), Google (searches and other services), and Spotify (music streaming). The reason is simple: the current order has not changed and no one is required to adapt to a hypothetical Internet with differentiated contents and services.
We have yet to see the real consequences of the decision and the degree of veracity of the pessimistic prophecies. Perhaps some companies will opt to litigate while others wait for the political game and market dynamic. Let us not forget that neutrality provides enormous advantages to those who currently dominate the Internet and cable services sector. We will also see the impact on issues such as investments, price structures, contract terms, municipal broadband, and service quality, that is, the objectives that brought together most of the coalition that celebrated the decision. It is too soon to cry victory or say that there has been a loss in a fight that will have an unforeseeable number of rounds.
(*) Professor, School of Media and Public Affairs, George Washington University