Net Neutrality Wars, Episode II: The Empire Strikes Back

Posted by Mitchell - May 15, 2010 (entry 645)

In 2002, the Federal Communications Commission -- led by policy supergenius (cough) Michael Powell -- reclassified the internet from a telecommunications service to an information service. This mattered because it removed the internet from the realm of law most closely related to universal accessibility to one potentially less so. This change dovetailed nicely with plans from big corporations -- which studies show are the cause of 95.8% of all the ills in the world -- to turn the internet into another kind of commercial carpet-bombing, money-saturated, medium with little public direction. You know, like the rest of American media.

Activists responded by suing the FCC in a court case named for a California internet service provider called Brand X -- a case which went all the way up to the U.S. Supreme Court. And in 2005, the Supreme Court ruled that the FCC was in its bounds to maintain the reclassification. So then, it became incumbent to escalate the matter further, to respond with a new law that would require content neutrality by internet service providers who would itch to prioritize content, typically on moneyed grounds. That was the die cast in the Net Neutrality wars of late 2005 and much of 2006.

CMA has been a participant in the Net Neutrality wars ever since, particularly since we got burned by an ally-turned-turncoat -- Congressional Representative Bobby Rush. In late 2005, CMA was invited by Rush's staff to participate in his District Wide Assembly, and we agreed to what we thought was a successful event. However, within months, Rush had been the first Democratic party co-sponsor to the dismal COPE Act of 2006, which would have all but snuffed out net neutrality (along with public access television via the proposed national video franchise agreement within the COPE Act). It then became public knowledge that Rush had accepted a bribe $1 million donation from SBC (the predecessor to the new AT&T) for a community non-profit project in Rush's district. Rush thereafter became a dutiful puppet. Irony: Many of the people in Rush's underserved communities would be left out of internet deployment by the COPE Act he co-sponsored.

CMA struck back by working to galvanize opposition: We had proposed a series of protests on the COPE Act, which coalesced into an event called the National Day of Outrage in a half-dozen cities around the country. Thereafter, further activism, mostly in the PR, public lobbying, and internet meme realm, continued for the subsequent summer. Net neutrality opponents responded, outspending freedom fighters by a rate of 15 to 1. As a result, The U.S. House of Representatives easily approved the COPE Act, with a Republican-dominated house mouthing industry talking points, and Bobby Rush providing the bipartisan figleaf.

But activism from freedom fighters continued, and started to turn the tide when the COPE Act got to the U.S. Senate, shepherded by then-Alaska-Senator Ted Stevens. Ostensibly, the Evil Empire had another win in the Senate, as the COPE Act's Senate equivalent passed in a series of Commerce Committee votes, but in the course of those votes, Ted Stevens heightened awareness to a new level by opening his damn fool mouth. A single blogger from the group Public Knowledge recorded an MP3 of Stevens and posted it on the series of tubes:

"Ten movies streaming across that, that Internet, and what happens to your own personal Internet? I just the other day got...an Internet was sent by my staff at 10 o'clock in the morning on Friday. I got it yesterday [Tuesday]. Why? Because it got tangled up with all these things going on the Internet commercially.[...] They want to deliver vast amounts of information over the Internet. And again, the Internet is not something that you just dump something on. It's not a big truck. It's a series of tubes. And if you don't understand, those tubes can be filled and if they are filled, when you put your message in, it gets in line and it's going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material."

In a matter of days, bloggers and internet commentators howled in response, deeming Stevens and his minions as a bunch of know-nothing fuddy-duddies. Ironically, the corporate hacks got what they wanted from the committee -- a vote of the bill out of committee, but the response scared people from bringing the bill to a vote before the full Senate, lest everyone scream bloody murder. So the bill never got brought up, and died through inaction. A dramatic win for our side.

One argument that was leveled by pro-corporate hacks in 2006 was that network neutrality was a hypothetical fear, an exaggeration by digital Chicken Littles. But in the years since, big corporate ISPs had been caught violating network neutrality in a number of high-profile instances. One of those violations, by the blocktastic cable provider Comcast against Bittorrent traffic, evoked to a complaint by Public Knowledge and Free Press asking the FCC to enforce network neutrality violations. Then FCC-chair Kevin Martin, despite his Republican pedigree, responded to the complaint and in 2007 fined Comcast $7,000 for that violation of network neutrality.

Comcast then sued the FCC and pro-democracy forces, arguing that it had no right to rule that way in light of the 2002 reclassification of the internet as an information service. The suit was argued in the First Circuit Court of Appeals, a court with a notorious reputation for being full of pro-corporate hacks cleverly disguised as judges. And to little surprise, the court in March 2010 ruled in favor of Comcast, and struck down the FCC's enforcement authority on net neutrality, thus putting the very future of network neutrality in doubt.

Of the various responses by the FCC and pro-democracy forces (and Wow! who knew four years ago that you'd put those two terms in the same sentence?), the fastest and most reliable option would be to undo the classification done by Powell back in 2002. On May 3, 2010, it was reported that FCC chair Julius Genachowski (appointed by one of the few Illinois politicians at the federal level to support network neutrality in the 2006 Net Neutrality Wars, Barack Obama) was leaning to NOT reclassify the internet as a telecommunications service. In the wake of this report, the pro-net-neutrality forces lost their collective shit, responding swiftly to what was deemed to be another capitulation to our corporate overlords. The response so was great that in just four days' time, when the FCC announced its plans for follow-up to the Comcast lawsuit, it was far better for pro-democracy forces than expected -- ranking an 8 out of 10 by one analyst (with 10 being the best).

And now, indeed this week, the anti-neutrality forces have begun organizing a response back to this faceslap at the FCC, with a massive smear and disinformation campaign backed by a $1.4 million budget. It evokes the outspending we faced in 2006 but were still able to defeat, and it appears we'll have to do again. But, as we've seen time and again, the way to defeat organized money is with organized people. So, time for us to get to work. You can take action here today, and expect more details for follow-up actions in the weeks ahead.

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