- The days are now numbered for surfing an uncensored,
open-access Internet, using your favorite search engine to search a bottomless
cyber-sea of information in the grandest democratic forum ever conceived
by humankind. Instead you can look forward to Googling about on a walled-off,
carefully selected corpus of government propaganda and sanitized information
"safe" for public consumption. Indoctrinated and sealed off from
the outer world, you will inhabit a matrix where every ounce of creative,
independent thinking that challenges government policies and values will
be squelched. Just a wild conspiracy theory, you say? No longer can this
be rationally maintained.
- Federal government--from the Federal Communications Commission
(FCC) to the White House--and corporate mainstream media have worked cooperatively
to quietly block open access to cyberspace. Seizing its infrastructure,
corporate mainstream media have censored and covered up its logistical
moves"including lobbies in Congress and the FCC, the filing of suits
in state and federal courts, and quid pro quo with the highest government
officials--to commandeer, monopolize, and turn the Internet into an extension
of itself. From Fox News to CNN, there has been dead silence as the greatest
bastion of democracy in history is being torn down and resurrected in its
own image. Now, as the corporate newsrooms remain mum, it has gotten the
green light from the highest federal court in the land.
- On June 27, 2005, in a 6 to 3 decision (National
Cable & Telecommunications Association vs. Brand X Internet Services)
the United States Supreme Court ruled that giant cable companies like Comcast
and Verizon are not required to share their cables with other Internet
service providers (ISPs). The Court opinion, written by Justice Clarence
Thomas, was fashioned to serve corporate interests. Instead of taking up
the question of whether corporate monopolies would destroy the open-access
architecture of the Internet, it used sophistry and legally- suspect arguments
to obscure its constitutional duty to protect media diversity, free speech,
and the public interest.
- The Court accepted the FCC's conclusion reached in 2002
that cable companies don't "offer" telecommunication services
according to the meaning of the 1996 Telecommunication Act, which defines
telecommunication purely in terms of transmission of information among
or between users. According to the FCC, cable modem service is not a telecommunications
offering because consumers always use high speed wire transmission as a
necessary part of other services like browsing the web and sending and
receiving e-mail messages. The FCC maintained that these offerings are
information services, which manipulate and transform data instead of merely
transmitting them. Since the Act only requires companies offering telecommunication
services to share their lines with other ISPs (the so-called "common
carriage" requirement), the FCC concluded that cable companies are
exempt from this requirement.
- However, the FCC's conceptual basis for classifying cable
modem services as informational was groundless. Not even the FCC could
deny that people use their cable modems to transmit information from one
point to another over a wire, regardless of whatever else they use them
for. The FCC's classification could not possibly have provided a reasonable
interpretation of the 1996 Telecommunication Act since it was inconsistent
with it. Section 706 (C) (1) of this Act defines "advanced telecommunications
- without regard to any transmission media or technology,
as high-speed, switched, broadband telecommunications capability that enables
users to originate and receive high-quality voice, data, graphics, and
video telecommunications using any technology.
- Broadband cable Internet offers "advanced telecommunications
capability" since it clearly fits this legal definition. Therefore,
cable modem service must legally be regarded as telecommunications service.
- To classify it as an information service is instead to
treat high-speed broadband Internet as though it were similar to cable
services such as Fox News and CNN. These networks send information down
a one-way pipe unlike Internet transmissions, which, in contrast, are interactive,
two-way exchanges resembling telephone conversations. The 9th Circuit Court
of Appeals made this quite clear in its decision in AT&T v. Portland:
- Accessing Web pages, navigating the Web's hypertext links,
corresponding via e-mail, and participating in live chat groups involve
two-way communication and information exchange unmatched by the act of
electing to receive a one-way transmission of cable or pay-per-view television
programming. And unlike transmission of a cable television signal, communication
with a Web site involves a series of connections involving two-way information
exchange and storage, even when a user views seemingly static content.
Thus, the communication concepts are distinct in both a practical and a
technical sense. Surfing cable channels is one thing; surfing the Internet
over a cable broadband connection is quite another.
- The Supreme Court had to strain to find some alleged
legal basis to defer to the FCC's classification of high-speed Internet
as an information service. So it put the entire weight of its argument
on the FCC's claim that cable companies do not "offer" the telecommunication
aspects of its services to consumers. Instead, it "offers end users
information-service capabilities inextricably intertwined with data transport."
Justice Scalia, writing the minority opinion in Brand X, analogized, you
might as well say that a pizza service doesn't deliver pizzas because it
also bakes them! Countering with its own analogy, the majority rationalized
that you might as well say that a car dealership "offers" engines
to consumers because it offers them cars. According to the majority's perspective,
since the finished product is the car and not the engine, it makes more
sense to say they offer consumers cars rather than engines. Similarly,
it argued, the finished product that cable modem customers seek is Internet
services such as being able to surf the net, not simply a transmission
over a wire.
- The Court's claim is makeshift and oversimplified. It
obscures the scope of consumer motivation by assuming that consumers have
just one broad perspective that defines what a company "offers"
them. Realistically, consumers are also interested in the quality of the
engines they get when they purchase cars (whether it's a V-8, V-6, 3.8
liter, 2.0 liter, etc). From this consumer perspective, the car dealer
is indeed "offering" engines to consumers (and bucket seats,
antilock breaks, dual air bags and all other components that determine
the car's drivability, safety, comfort, design, durability, speed, and
so forth). Similarly, from the perspective of average cable Internet consumers
who care about how reliable and fast the cable connection they purchase
is, the cable company can, in a very practical sense, be said to be "offering"
a telecommunication service. The FCC's distinction that cable modem data
transmission service is inextricably bound up with information services--just
as an engine is inextricably bound up with a car"is, in this instance,
a distinction without a difference.
- In the end, the Court retreated to the claim that the
Telecommunication Act was ambiguous. So why did it side with the FCC's
interpretation even though there was clear, prior legal precedent for classifying
cable modem services as telecommunication offerings (AT&T Corporation
- Citing its own decision in Chevron U.S.A. Inc v. Natural
Resources Defense Council, the Court maintained that "if a statute
is ambiguous, and if the implementing agency's construction is reasonable,
a federal court [is required] to accept the agency's construction of the
statute, even if the agency's reading differs from what the court believes
is the best statutory interpretation." Therefore, it argued, since
the FCC's construction is reasonable it should determine what counts as
"offering" telecommunication services.
- In the first place, the Court provided no legitimate
legal, moral or conceptual basis to think the FCC's construction was reasonable.
If it really cared about what consumers wanted, it would have determined
what was reasonable for purposes of regulating competition of an Internet
that was designed to provide free, unfettered access to information in
a democratic society. Instead, the Court rested its substantive case on
a specious argument advanced by the FCC:
- The Commission concluded that ...broadband services should
exist in a minimal regulatory environment that promotes investment and
innovation in a competitive market.... This, the Commission reasoned, warranted
treating cable companies unlike the facilities-based enhanced-service providers
of the past.We find nothing arbitrary about the Commission's providing
a fresh analysis of the problem as applied to the cable industry, which
it has never subjected to these rules. This is adequate rational justification
for the Commission's conclusions.
- What "rational justification" is the Court
talking about? The FCC made an unsupported claim that giving cable companies
monopolies on broadband Internet cable service, thereby doing away with
open access, will spawn more competition. Where is the empirical evidence
that would justify the claim? In reality, such deregulation portends less
competition, not more, from independent service providers.
- Even if giving giant cable corporations monopolies on
cable modem service could encourage more investment in relevant technologies,
not all "innovations" are worth having and some may be grotesquely
anti-democratic, for example, using innovative filtering technologies to
build a wall around the Internet, and increasing the speed and efficiency
by which government propaganda reaches consumers. The Court's decision
simply covered up the fact that there was in fact no justified defense
given by the FCC for its construction. The more plausible explanation (not
at all a justification) is this: by giving big cable business what it wants
(namely, big money), big government will get what it wants in return: control
over what people are permitted to know.
- By deferring to the FCC instead of exercising its own
judicial discretion in determining what really was reasonable, the Court
mooted the point of having an independent, ultimate court of appeals in
the first place. This is to provide checks and balances on the activities
of the other two branches of government, and to settle controversial, politically
significant cases with far-reaching social consequences. Instead, it abandoned
its constitutional charge to protect the First Amendment right of all Americans
to freedom of speech in cyberspace from encroachment by big business acting
in tandem with federal government.
- In the second place, the Court's appeal to Chevron may
not have been lawful by its own admission. Said the Court:
- A court's prior judicial construction of a statute trumps
an agency construction otherwise entitled to Chevron deference only if
the prior court decision holds that its construction follows from the unambiguous
terms of the statute and thus leaves no room for agency discretion. This
principle follows from Chevron itself.
- In 1999, before the FCC rendered its construction in
2002, the U.S. 9th Circuit Court of Appeals, in AT&T v. Portland, held
that its construction of the 1996 Telecommunication Act followed from the
unambiguous terms of the statute:
- Under the Communications Act, this principle of telecommunications
common carriage governs cable broadband as it does other means of Internet
transmission such as telephone service and DSL, "regardless of the
facilities used." 47 U.S.C. S 153(46). The Internet's protocols themselves
manifest a related principle called "end-to-end": control lies
at the ends of the network where the users are, leaving a simple network
that is neutral with respect to the data it transmits, like any common
carrier. On this rule of the Internet, the codes of the legislator and
the programmer agree.
- Here the 9th Circuit Court was quite clear that there
was no ambiguity about whether cable broadband must be regarded as a telecommunications
service and hence subject to common carriage. It stated that "the
codes of legislator and the programmer agree." The only one who claimed
any ambiguity was the Court.
- According to Chevron, agencies' constructions are "given
controlling weight unless they are arbitrary, capricious, or manifestly
contrary to the statute." As you can see, the FCC's construction is
all of these things. As a result, giant cable companies can now enjoy a
monopoly on high-speed, cable Internet. Not only are these monoliths poised
to noncompetitively control the price of their services, thereby preventing
poorer citizens from broadband access, they are now able to monitor and
control the content of information that can be accessed by millions of
American through these pipes.
- The main alternative to high speed Internet (broadband)
via cable is presently slower modem connectivity via Digital Subscriber
Line (DSL) service over telephone lines. Telephone companies have traditionally
been required by government to share their lines with other ISPs, thereby
assuring greater competition and diversity in content. But the Court has
now given the FCC the right to abandon this common carriage requirement
to render it consistent with the broadband cable industry; and, as FCC
Chair Kevin Martin has already given the nod to the telephone companies,
it should only be a matter of time before the telephone lines are also
deregulated and alternative, independent commercial ISPs are banished altogether
- Broadband and DSL are therefore on their way to becoming
extensions of corporate mainstream media. In fact, the companies that have
taken control of the Internet are themselves part of an intricate web of
corporate media ownership. For example, Time Warner and Comcast, have recently
purchased Adelphia. Moreover, companies such as Google are in a strategic
position to become front men for mainstream corporate Internet. This financially
prosperous dot com, which now rivals Time Warner in net worth, has advertising
relations with Verizon and partnerships with companies such as News Corp.
There have also been a number of documented instances in which Google has
engaged in questionable censorship practices. It is therefore no stretch
to imagine this company taking its place as gatekeeper of a government-friendly
mainstream corporate Internet.
- The logistics of this well organized assault on American
democracy by corporate mainstream media can be summed up in this one simple
principle: Whoever controls the conduit controls the content. Media broadcast
corporations like CBS, ABC, and NBC control the spectrum that carries their
broadcasts; they are therefore able to determine the content of their programming.
Cable TV news networks like News Corp's Fox News and Time-Warner's CNN
own the cables that carry their news shows, and therefore can control what
passes as "news." Gigantic radio empires like Clear Channel and
Infinity have crowded out the smaller broadcasters and now determine the
content of mainstream radio. The Corporation for Public Broadcasting, now
on a campaign to restrict "liberal" programming, controls National
Public Radio (NPR) and the Public Broadcasting System (PBS). Colossal media
corporations like Time Warner, which also own mainstream movie distribution
companies, also control the content of the movies most Americans watch.
Publishers of books are also part of this intricate corporate media web.
For example, News Corp. owns Harper-Collins.
- All of these companies have interconnected corporate
boards with a relatively
small number of officers. And they have well entrenched business
relationships with the government, for example, dependence on government
officialdom for the content of their news reports; enormous financial incentives
to receive government contracts (for example, General Electric's NBC has
interests in military contracts to produce jet engines); interests in government
deregulation of media ownership caps and cross-market ownership, and lucrative
tax incentives. As a result of this intricate web of quid pro quo, the
mainstream media is to America what Pravda used to be for the now defunct
Soviet Union: disseminators of an array of government-friendly, self-censored,
- When the London Times leaked the so called "<http://www.timesonline.co.uk/article/0,,2087-1593607,00.html>Downing
Street Memo," the Internet buzzed with how Americans were deceived
and lied to about the Bush Administration's reasons for going to war in
Iraq. While at first, the mainstream media gave scant attention to this
memo, the shockwaves sent out from the Internet were simply too strong
to be ignored indefinitely. Even so, the mainstream broadcast media, from
Chris Matthews to Fox's O'Reilly, still ignored the substance of the
memo (namely that "the facts" about the threat to U.S. security
posed by Saddam Hussein were being "fixed" to fit a policy of
preemptive war). Instead, it focused on peripheral issues (such as whether
the Bush Administration had an exit plan) and it largely dismissed the
memo as "nothing new."
- So what if the Internet blogs were themselves walled
off and thereby prevented from sounding the alarm in the first place? No
American would then have even been aware of the memo's existence! And the
Bush Administration would have avoided being placed in the position of
answering to th e American people. Without a free Internet, Americans are
therefore vulnerable with no defense against media and government propaganda.
The government is protected against the people instead of conversely. Walled
off from a free Internet, America is walled off from the truth, and there
is no longer freedom in America.
- The mainstream media have systematically played down
the Supreme Court's decision to deregulate broadband cable Internet just
as it has ignored the Downing Street Memo. The decision was not even mentioned
by cable TV networks like Fox and CNN. The New York Times covered it only
on the bottom of C1 of the business section while the details of the BTK
killer got front page press along with other decisions handed down by the
Supreme Court on June 27 (including the Grokster file sharing case). The
Palm Beach Post, which is published by Cox--another mainstream media company
in the cable business--didn't cover it at all. Censoring stories that have
potential to subvert corporate and government interests has already become
the rule in this brave new world of corporate media coverage. And with
open-access Internet now on its last leg, things promise to get even worse.
Unless we are prepared to do something about it before it's too late!
- What can we, the people, do to save the Internet from
becoming the latest casualty of the corporate mainstream media?
- Americans can no longer afford to sit back and permit
others to defend freedom of speech for them. We are all the victims of
the same concerted effort by the corporate political establishment to amass
power and wealth for the few at the expense of the many. We can no longer
afford to wait until all of our outlets of free speech have been shut down.
The collective American voice can be a powerful one. There is great strength
- This power can be harnessed if we all take the time to
write letters to our congress persons, letting them know our opposition
to corporate monopolistic control of the Internet. History has shown that
these protests can produce change. In 2003, when it was deluged with millions
of letters from constituents protesting the FCC's deregulation of corporate
media ownership rules, Congress responded by legislatively reducing the
FCC's proposed market ownership cap. Now, with the demise of open-access
Internet hanging in the balance, this problem of media consolidation is
more crucial than ever. By our collective efforts, we can make a difference.
- You should also send e-mail messages, including chain
messages, to friends and associates alerting and educating them about the
attack on the free architecture of the Internet. You can also join organized
efforts such as the <http://www.democraticmedia.org/>Center for Digital
Democracy's Digital Destiny Campaign, a grass roots effort to protect Internet
freedom and diversity. Other organizations like the <http://www.freepress.net/>Free
Press have well organized and successful outlets for making your voice
heard in Washington.
- While they last, you should support diversity in search
engines by using engines. Google
is not the only comprehensive search engine, and by supporting alternatives,
we make it harder for one search engine to usurp the authority of others.
Given that there are biases internal to the selection criteria of search
engines, reliance on one engine to the exclusion of all others renders
us more vulnerable to organized attempts at censorship, propagandizing,
and control over what we can know.
- You should also contact your federal, state and municipal
leaders and let them know that you are concerned about the effects of corporate
media consolidation of the Internet and that you would like to see municipal
Internet service ensuring access for all residents of your community. Dominant
cable and telephone companies have successfully lobbied state legislatures
to forbid such competition and there have been at least fourteen states
that have already banned or restricted municipal telecommunications utilities,
and bills are presently being introduced in other states outlawing the
offering of free or discounted access to Internet service by municipalities.
A bill has also been introduced in the House that would prohibit such community
and municipal services. You can join the Free
Press initiative against it. On the other hand, the Community
Broadband Act has been introduced in the Senate that would protect the
right of communities to offer affordable broadband access.
- Defenders of deregulation of corporate media have always
pointed to alternative technologies in order to justify further deregulation.
Before the present deregulation of Internet, the FCC pointed to the Internet
to justify further deregulation of commercial broadcast TV and radio. Now
the friends of deregulation, including the Supreme Court itself in the
Brand X decision, are claiming that there are other platforms like wireless
terrestrial and satellite as well as municipal Internet. But if the future
resembles the past, these too will fall under corporate control with the
help of the federal government. To see this you need only consider who
now owns the satellites and controls the spectrum for wireless Internet
and how vigilant mainstream corporate media have been in attempting to
thwart the development of municipal and community Internet. It is therefore
essential that we stand firm in our conviction and not fall for the old
line. Affordable, uncensored Internet for all Americans is presently in
danger of becoming a pipe dream. Unless we act now, the outlook for survival
of democracy in cyberspace is dismal, and it grows dimmer with each successive
conquest by mainstream corporate media.
- A BUZZFLASH GUEST CONTRIBUTION
- Elliot D. Cohen is a media ethicist and author of many
books and articles on the media and other areas of applied ethics. His
most recent book on the dangers of corporate media is News Incorporated:
Corporate Media Ownership and Its Threat to Democracy (Prometheus Books,