Today’s post was co-authored by FMC Google Policy Intern Alexandra Wood.
On July 14, Future of Music Coalition submitted comments to the Federal Communications Commission regarding the legal framework it uses to support its broadband policy. The FCC opened this Notice of Inquiry after the April court decision in Comcast v. FCC undermined the Commission’s ability to enforce open internet rules and bring broadband internet access to rural communities. We know that all sounds ridiculously wonky, so let us break it down for you.
FMC, like many others, is concerned about telecommunications and cable companies wanting to maximize revenues by the favoring content of their business partners while discriminating against competitors or independent voices. If you couldn’t afford to — or didin’t want to — pay a “toll” to the ISP you could be stuck in the slow lane. That’s why net neutrality — the principle that preserves the open internet — is so important to musicians and fans. Today’s artists are essentially entrepreneurs who depend on the web to manage pretty much every aspect of their careers. We know this issue matters to musicians, because thousands of them — including R.E.M., OK Go, Pearl Jam, Kronos Quartet, Boots Riley of the Coup — have made their voices heard via our Rock the Net campaign.
What Can the FCC Do?
At the moment, not a heck of a lot. But that doesn’t mean they haven’t tried: In 2008, the FCC found that Comcast was interrupting web traffic delivered via the BitTorrent protocol. Although BitTorrent can be used to share unauthorized music (and movies, etc.), it also has perfectly legitimate uses. In fact, many mainstream and fully-licensed content providers use the technology as an efficient way to get their stuff to consumers. The Comcast story blew up when a reporter unsuccessfully tried to upload and download a copy of the King James Bible via BitTorrent. When the FCC issued an order preventing the cable giant from discriminating against lawful content without its customers’ knowledge, Comcast sued. Ultimately, Court of Appeals for the DC Circuit ruled that the FCC lacks the authority to do pretty much anything involving broadband. At least according to the legal theories the Commission had been using.
Oh, crap, we’re getting wonky again…
The heart of the problem stems from the FCC’s decision in 2002 to reclassify broadband as an “information service” rather than a “telecommunications” service. Previously, the internet was regulated under “common carrier” provisions —like the phone lines, which have clear non-discrimination rules. Picture this: It’s Friday night, and you just finished band practice. You want a pizza from your favorite local joint, Joe’s. You call to place your order, but suddenly an operator comes on and says, “Please hold while we prioritize calls for Domino’s.” This doesn’t happen with your telephone. And it shouldn’t happen with the internet. Unfortunately, the FCC’s 2002 switcheroo made it difficult for them (and us) further down the line.
At the time, the FCC believed competition in the broadband marketplace alone would prevent ISPs from engaging in unjust and unreasonable practices, meaning policy intervention would be unnecessary. FMC disagreed. In 2005, when the Supreme Court supported the FCC’s decision to deregulate broadband, we argued that this gave “cable companies much more leeway in controlling the applications and content that travels over their internet services.” That’s essentially where we are now. And competition isn’t so hot, either — a lot of Americans only have one or two options for high-speed internet service, and some don’t have any option other than dial-up.