[Who can resist a good conspiracy theory?]
July 18, 2005
Web of Deceit: How Internet Freedom Got the Federal Ax, And Why Corporate
News Censored the Story
A BUZZFLASH GUEST CONTRIBUTION
by Elliot D. Cohen, Ph.D.
BuzzFlash.com
http://www.buzzflash.com/contributors/05/07/con05238.html
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
movesincluding 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
capability" 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 caris, 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 vs. Portland)?
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 from cyberspace.
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, whitewashed propaganda.
When the London Times leaked the so called "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 NBC's 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 the 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 in numbers.
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 Center for Digital Democracy's Digital Destiny Campaign, a grass roots
effort to protect Internet freedom and diversity. Other organizations like
the 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
alternative independent, search 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, March 2005).
================================
George Antunes, Political Science Dept
University of Houston; Houston, TX 77204
Voice: 713-743-3923 Fax: 713-743-3927
antunes at uh dot edu
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