Talk is Cheap; Speech is Costly

When the FCC has closed-door meetings on the future of the openness of society, you know that something dastardly is afoot.  That degree of largely unreported irony bespeaks true political power.  Indeed, when the fate of the converged and bottlenecked transportation of news, speech, culture, thought, and all other forms of communication, and when those markets are largely oligopolistically structured, the stakes run higher than most Americans are capable of imagining.  That’s why the telecommunications industry represents one of the largest sectors of political contributions in the country, since unregulated markets in the contexts of natural last-mile monopolies and heavy investment barriers to entry can mean massive profits for these utilities’ monopolistic behavior.  So, whether or not this series of tubes is effectively regulated has massive ramifications on the politics of speech.  Under Bush, that game was constantly being rigged in favor of Internet Service Providers who used the fodder of ineffective and unreasoned attempts at regulation as evidence of the FCC’s incompetence to regulate such a highly complex industry.  But, after some Hegelian dialectics and the rise of an FCC Commissioner who heeds the lessons of history, a third way may have opened up.

Though I’ve already written a more detailed explanation of the plan, in essence, the “third way” proposes to regulate ISPs as though they were regular telephone companies, meaning that they would not be allowed discriminate between or meddle with the data they transport.  Such a plan would treat ISPs as “common carriers,” charged with taking care of the public at a higher level of duty than your average unrestrained service provider.  Like most lobbying dynamics where much is at stake, there are very few moderate or neutral positions staked out in this polarizing debate; there are only doomsayers.

The Open Internet Coalition, which represents the perspective of eBay, PayPal, Facebook, Amazon, and other content services, concurs with the FCC that classifying ISPs as Title I “information services” doesn’t make a whole lot of sense any more. Most consumers don’t subscribe to Comcast or AT&T to get “information” from these companies—that is, to browse an ISP provided search engine or to get an e-mail account.

“What consumers want from their broadband Internet access providers—and what these providers market to consumers—has to do with the speed and price of their broadband Internet access connection,” OIC notes. Thus Title II logically applies in this instance.

Agreed, says the American Civil Liberties Union.

“Individuals who use Facebook, Google, voice or text chat, e-mail, or online games expect, accurately, to be able to access those services regardless as to whether they might be connected to the Internet through their home DSL provider, their friend’s cable subscription, or a Wi-Fi hotspot at their local coffee shop,” the ACLU warns.

“Since access to the Internet is provided by private corporations (enabled by government), free speech principles dictate that the government should create strong, clear policies that will prevent speech-restrictive abuses by companies that are fundamentally profit-seeking rather than civic-minded.”

To link Obama to this policy, the nomination of Julius Genachowski as Obama’s proxy and implementer of internet policy speaks volumes.  Here have an FCC commissioner who is willing to stand up to the vested commercial interests, in stark contrast to the Republican approaches of Michael Powell and Kevin Martin who had supported policies that were “good for business.”  When it comes to ISPs’ monopolistic behavior, you can more or less equate the phrase “good for business” with “bad for consumers,” in the sense that those policies almost invariably reduce consumer surplus and undercompensate the reduction of positive externalities.  The [Republican] political players opposing Genachowski’s plan are extremely vested with campaign contributions.  To voice their disapproval of the prevailing FCC, several Senators have proposed a bill that would block the FCC from implementing the proposed plan as part of a dog-and-pony-show of their impotent support of ISPs screwing over consumers:

The bill’s main sponsor is Senator Jim DeMint. Over the course of his career… AT&T is the second largest contributor to his campaigns. Ditto for Senator Tom Coburn. John Cornryn no doubt knows that AT&T is the 4th biggest contributor to his campaigns over the years, and Orrin Hatch must be happy that AT&T is the fifth largest contributor to his campaigns over the years (amusingly, AT&T is the only non-healthcare company in the top 8 on Hatch’s list).

With so much freedom of speech at stake, with all of its positive externalities and dispersed benefits, it is no surprise that the proponents of those values are less organized, calculating, and motivated than the vested commercial interests with budgets to spend to continue the concentration of benefits of monopoly.  The founding fathers had conceived of a republic that could protect individual rights in the face of a sovereign majoritarian democracy.  But when democracy has trumped republicanism (notice the lower case), and corporations are people too, industry can and does wield extensive power to control of even majorities for profoundly perverse results.  The only question is whether those politicians at the height of their political security can use their moment of political insulation and freedom from influence to strike out against the tides for the betterment of human history.