The FCC decided today to treat the Internet as a public utility and to (therefore) enforce net neutrality. This means that ISP’s won’t be able to favor one form of content over another by offering (for example) higher transmission rates for a fee. It also means that ISP’s can’t interfere with the transmission of content they don’t like (say, by a competitor). Assuming it holds up in court (and the major telecom companies are prepared to spend a lot of money trying to get it overturned), this is a big deal.
The big ISP’s want to be able to charge more for different Internet uses because they see a money-making opportunity: commercial entities will be willing to pay for faster or more exclusive service. Since many ISPs are also content providers, they also could prioritize their own content over competitors. As should be fairly obvious, this willingness-to-pay model tends to force non-commercial activity to the margins; it also might very well (further) marginalize “controversial” content, or content that an ISP doesn’t want to associate with. As Brett Frischmann explains, this presents a vision of the Internet as primarily a system for the delivery of commercial content.
The neutrality view, on the other hand, views the internet more like infrastructure: part of the basic way that our society organizes itself and its economic activities. The regulatory model for neutrality is the common-carrier rule applied to telephones, or the equal access rules applied to roads. The telephony comparison is important, because it answers one of the standard arguments that the telecoms make, that competition between ISP’s will somehow address the problem. The problems with this argument are of course that most Americans don’t have more than one broadband provider to choose from, and that in the event they have two, both of those providers have strong incentives to prioritize their own content or that of higher-paying customers.
As Frischmann, building on the work of scholars like Tim Wu, Jonathan Zittrain and Yochai Benkler, notes, “the benefits of the Internet are generated at the ends. Like a road system, a telecommunications network, an ocean, and basic research, the Internet is socially valuable primarily because of the wide variety of productive activities it facilitates” (336). Or, as Wu – whose work has been tremendously influential – put it more concretely, “for the consumer, that means it will continue to be where new things come from. For business, it remains the easiest place to start a business.” This diversity of activity is directly threatened when ISPs are allowed to pick and choose content they prefer, since they will tend to prefer content that pays them for access. Today’s decision is an important step in the right direction.
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