A New Troll at the Bridge

In December of 2010 the Federal Communications Commission (FCC) adopted regulations directed at broadband providers which were designed to maintain a free and open internet. [1] Under the new rules broadband providers were prohibited from blocking lawful content or engaging in unreasonable discrimination in the transmission of internet traffic.

One such broadband provider, Verizon, took exception to these restrictions, and appealed the FCC’s order to the United States Court of Appeals for the District of Columbia Circuit. [2] There the court held that the FCC had no statutory authorization to do what it did. Why? Because Congress had only authorized such rules for common carriers, and the FCC itself had classified broadband providers as something other than that.

The cleanest and simplest way to get what the FCC wanted would be for Congress itself to enact a law requiring an open internet, or, as it has come to be known, “net neutrality.” But it is not altogether clear that there is a sufficient will in Congress to do that, although there are good reasons why there should be such a will.

Information flows freely on the internet because there are no gatekeepers to keep it from happening. That does not mean that such gatekeepers might not arise, and broadband providers are well situated to take on that role, whether the rest of us like it or not. In fact, the FCC has actually encountered some of them blocking or degrading content, and failing to mention the fact to their customers.

Why would broadband providers do such things? Because they could charge fees to those transmitting over the internet for access to the broadband providers’ customers. They could work out arrangements to bar access to the competitors of those who paid the required fee. They could bar access to competitors of services they themselves provide. They could charge their customers an extra amount for the ability to go to the sites of those that have not affiliated themselves with the provider, or who have paid only for a second or third tier status. Most perniciously, if a broadband provider came under an ideologically driven ownership, it could block access to sites promoting a religious or political opinion different than its own.   

Of course, broadband providers aren’t charities, and they shouldn’t be expected not to try and make money. But they already make money, and the ill effects of allowing them gatekeeper power over the internet outweigh their interests in making even more of it.

The ability of broadband providers to block their own competitors and those of their affiliates would obviously have adverse effects on competition. They could stipulate terms of access that might be too expensive or troublesome for smaller transmitters of internet content. Worst of all, they could disrupt the free flow of information and ideas that the internet has become known for. 

In issuing its order, the FCC laid out what is at stake:

“Openness also is essential to the Internet’s role as a platform for speech and civic engagement. An informed electorate is critical to the health of a functioning democracy, and Congress has recognized that the Internet “offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” Due to the lack of gatekeeper control, the Internet has become a major source of news and information, which forms the basis for informed civic discourse. Many Americans now turn to the Internet to obtain news, and its openness makes it an unrivaled forum for free expression. Furthermore, local, state, and federal government agencies are increasingly using the Internet to communicate with the public, including to provide information about and deliver essential services.”

The Catechism of the Catholic Church tells us that the common good and “a truly human life” require access to suitable information. [3] If broadband providers are able to act as gatekeepers to the internet this vital interest will be threatened. Congress should act to prevent it from happening.

Jack Quirk