A citizen’s guide to the latest at the FCC, Net Neutrality and the Comcast-NBC merger

“The FCC released some very bad news for the future of American media and, in my view, for the future of American democracy.” Rep. Bernie Sanders wrote in response to reports that Chairman Genachowski and the FCC will be greenlighting the merger of the largest cable provider, the largest Internet provider, and one of the largest producers of content in the United States in the Comcast NBC merger. He goes on to say, “Once we allow companies to become this powerful, the FCC does not regulate them.  They regulate the FCC.”

As 2011 dawns the future is looking bleak for an open internet and deconsolidating media corporations. Just when you would think that the publics’ needs couldn’t be any less met by the FCC, the FCC releases a convoluted order on Net Neutrality. Here is a link to the order: http://www.scribd.com/doc/45847940/FCC-Net-Neutrality-Order

The order does not meet the demands of the 2 million Americans who communicated to the FCC that Americans need real Net Neutrality that embodies open access to websites, services and applications. The FCC built a new site looking to engage the public by allowing docket comments, the public utilized this new feature and the FCC ignored their requests.

Media Reform groups are frustrated and baffled by the lack of clarity in the order and progress on the Net Neutrality issue, which has surmounted to a 5 year process and where media reform public interest groups have offered many recommendations to the FCC.

Jonathan Zittran, a Internet Law Professor at Harvard writes in his paper, “Net Neutrality as Diplomacy”: “No party, public or private should have the unchecked ability to abridge an individual’s lines of communication over our generic global Internet. If the government ran the Internet the way it maintains the highways, we would see this in the United States as a First Amendment right, but because private parties offer Internet access, we do not view it that way, at least not doctrinally”.

Harold Feld, Legal Director at Public Knowledge writes: “On every single important and controversial question on what an “open Internet” actually means, — such as whether companies can create “fast lanes” for “prioritized” content or what exactly wireless providers can and cannot do — the actual language of the rules is silent, ambiguous..Such vast unknowns hardly amount to “regulatory certainty,” beyond the certainty that there is a process and that it will require a great deal of time and expense to litigate.”

Free Press is taking a strong tone with their statements on the order as well saying, that the opportunity for real Net Neutrality has been squandered by FCC Chairman Genachowski, who was appointed by the Obama Administration to oversee rules for Net Neutrality.

Managing Director of Free Press, Craig Aaron made the following statement:
“We are deeply disappointed that the chairman chose to ignore the overwhelming public support for real Net Neutrality, instead moving forward with industry-written rules that will for the first time in Internet history allow discrimination online. This proceeding was a squandered opportunity to enact clear, meaningful rules to safeguard the Internet’s level playing field and protect consumers.”

“The new rules are riddled with loopholes, evidence that the chairman sought approval from AT&T instead of listening to the millions of Americans who asked for real Net Neutrality. These rules don’t do enough to stop the phone and cable companies from dividing the Internet into fast and slow lanes, and they fail to protect wireless users from discrimination. No longer can you get to the same Internet via your mobile device as you can via your laptop. The rules pave the way for AT&T to block your access to third-party applications and to require you to use its own preferred applications.”

Barbara van Schewick, the Director, Center for Internet and Society at Stanford Law School and one of the foremost experts on Net Neutrality writes in her latest blog:

“In particular, the text of the order:

•  sets out important principles that will guide the commission’s interpretation of the non-discrimination rule and the reasonable network management exception;
•  explicitly bans network providers from charging application and content providers for access to the network providers’ Internet service customers;
•  stops just short of an explicit ban on charging application and content providers for prioritized or otherwise enhanced access to these customers (this second practice is often called “paid prioritization”); and
•  keeps alive the threat of regulation with respect to the mobile Internet.”

On the topic of ISP’s blocking applications and services, the order states: “A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or nonharmful devices, subject to reasonable network management.” This offers space for countless arguments on what “reasonable network management is and whether content that has been discriminated against is  “lawful content”.

Legal analysis of the order is starting to crop up and will continue too. The vague language of the order begs for legal cases in the months and years to come. This language barely safeguards the consumer. It would benefit the FCC and citizens to have more clear language on the order since millions of people utilize the Internet and depend on it to be open in order to innovate, educate and communicate.

Comcast-NBC Merger

Enhancing the public interest is the basic mandatory rule when the FCC approves a license. The truth about the Comcast-NBC deal is that is does nothing to enhance the public interest, which the LA Times has pointed out recently.

Bernie Sanders, representative of Vermont who has more than proved his dedication to protecting the public, released a statement on the Comcast-NBC merger. He starts his statement: “The FCC released some very bad news for the future of American media and, in my view, for the future of American democracy.”

Bernie Sanders accurately describes this merger monster as: “this new media giant will be the largest cable provider, the largest Internet provider, and one of the largest producers of content in the United States.”

“Some take solace in the fact that Chairman Genachowski’s order would approve the merger only subject to certain conditions and regulations.  This in no way changes my opinion about the scope of the damage.  If this merger is approved, I have little doubt that Comcast-NBCU will retain hundreds of attorneys and lobbyists to exploit gaps and loopholes in any conditions and regulations.  Once we allow companies to become this powerful, the FCC does not regulate them.  They regulate the FCC.”

The FCC has struggled back their power to regulate in the past year and are with the exception of Commissioners Clyburn and Copps are not strongly advocating for the American public. You might say I am exaggerating in saying we are are taking the fast track to dystopian reality, but when mergers continue and corporate media companies power grow larger and larger, this description seems realistic. Communication is absolutely critical for humanity’s evolution and the majority of citizens are shut out of understanding the media policies that shape freedom and suppression of expression.

I sincerely hope that those of us working on communicating ICT policies can collaborate to bridge the learning and engagement gap on these issues. People around the world have the right to be knowledgeable on communication polices and rights and help shape the legislative process.

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