Net Neutrality and Civil Rights: No Closer Connection

The most important decision the Federal Communications Commission (FCC) has had to make in years is upon it. How this decision comes down will significantly affect the future of our nation’s communications networks. It will profoundly affect each of us as individuals -- and no one more profoundly than America’s minority and diversity communities. That’s because this is not only a communications issue. It is also a critically important civil rights issue. All of us who support the expansion of civil rights need to be in the thick of this decision.

The issue is the future of the Internet and whether that future will be open and accessible to all of us -- or, will the Internet become the playground of a few gate-keeping, powerhouse communications giants? The term "network neutrality" doesn’t begin to do justice to this issue. This is about Internet Freedom. This is about ensuring that the most opportunity-creating communications tool of the twenty-first (or perhaps any) century is open to every American -- regardless of who they are, where they live, the color of their skin, the nature of their ethnicity, or the particular economic and social circumstances of their individual lives. The Internet should be and can be the highway to expanded opportunity for 330 million Americans -- but it will require positive policy action to make it so.

No American can be a fully-functioning citizen, nor can our country be a fully-functioning democracy, with an Internet where both access and content are controlled by gatekeepers more interested in the bottom line than in helping create opportunity for the rest of us. When an Internet Access Provider like Comcast or Verizon or a powerful online behemoth like Google can favor its content over the content of others; determine where you can go on the Net; prioritize the traffic of those willing to pay all that the traffic can bear; block content they don’t like; and extract outrageous prices from consumers and small businesses, then something has gone amiss.

Increasingly, people understand that the Internet is where we go to find jobs, pursue our education, care for our health, manage our finances, conserve energy, interact socially and -- importantly -- conduct our civic dialogue. All of which is to say that the Internet is central to our lives and our future.

Anyone not having these opportunities is going to be consigned to second-class citizenship. I think America’s minorities and diversity communities have had enough of second-class citizenship. Minority Americans, Native Americans, disabled Americans, and many others of different cultural and life-style backgrounds come immediately to mind. So, too, do citizens of the inner city and rural countryside, where the Internet’s tools are either unavailable or too costly to write into the household budget.

The FCC is the government agency charged with responsibility to ensure that every American can access the advanced tools of the digital age and enjoy transparent and non-discriminatory treatment in a competitive communications environment. The Telecommunications Act is clear that reasonably comparable services should be provided at reasonably comparable prices throughout the land and that these services should come replete with consumer protections, rights to privacy, and the certainty of reliable emergency and public safety communications.

Unfortunately, the FCC lost sight of its obligations. Doing the bidding of the communications industry powers-that-be, the George W. Bush era Commission decided to not even call access to the broadband Internet “telecommunications.” Instead it would be an “information service.” That may strike some as a distinction without a difference, but it was a distinction that made a huge difference. Information services are dealt with -- barely -- in a section of the statute that doesn’t explicitly contain those consumer protections that we came to rely on in our traditional telephone service. So the Commission told us that those statutory requirements for consumer protection mentioned above didn’t really apply to broadband access. This decision was right up the big telecom company’s alley, of course -- a world beyond meaningful government oversight, with no necessity to offer a credible menu of consumer safeguards, or any requirement to build out broadband infrastructure. So the companies could go about the task of cherry-picking where to build, amassing gatekeeping power, charging higher prices, and not worrying about providing all those bothersome benefits to consumers.

Network neutrality (Internet Freedom) means that consumers should be able to determine, to the maximum extent possible, their online experience, rather than having somebody else control the content they wish to access or limit the apps they want to run. It means broadband Internet providers cannot favor their own businesses, affiliates, and friends at the expense of others. This is to protect consumers and encourage competition. But that’s not all: it is to guarantee the free flow of information and dialogue that underpins viable self-government. You and I want to select our own information sources, and we want all of them to be readily and comparably available to us. We want to select our own news rather than have an ISP or Google selecting it for us. Or, worse, denying it to us.

Think of the civil rights implications. Say that an ISP doesn’t like the message of a certain civil rights or social justice group. Or suppose that the ever-growing Comcast (what’s in their water anyway?), now controlling both distribution and content, thinks a certain anti-Comcast or anti-corporate message isn’t really what its subscribers should be hearing. Or another gatekeeper doesn’t want to encourage groups with different outlooks from organizing to galvanize change and reform at the grassroots. Without Internet Freedom, all these groups, individuals, and initiatives can be blocked, slowed, and, in truth, destroyed. Inconvenient truths about voting rights, criminal justice reform, and overhauling immigration can be silenced. Is this how the Internet should end? As an obstacle to progress rather than the tool of liberation it is capable of being?

The FCC did enact, upon the coming of a Democratic majority following Barack Obama’s election, some net neutrality rules. I found them meek and mild, too filled with loopholes, and far short of the kind of guarantees that real Internet Freedom requires. But -- give everyone their due -- they were something. BTW, an important explanation for the meekness of the rules was that industry was invited in to help craft them. Yet these big companies are never happy with less than everything they want, so they contested the rules in court. And the court over-turned the rules, arguing (with no little irony) that the FCC does indeed have the authority to protect Internet access -- but not if the Commission treats it as an “information service.” The court was saying that if the FCC had just called broadband “telecommunications” in the first place, it could have avoided this whole mess and won approval of the rules. And not just approval of the meek and mild version -- but strong and loophole-free rules.

Now the FCC has the opportunity to correct its mistake. It can reclassify broadband access as telecommunications and then write meaningful rules to keep the Internet open and free from gatekeeping. This is the single greatest test facing the new Chairman of the Federal Communications Commission and his four colleagues. Are there trainloads of money and planeloads of lobbyists pushing from the other side? Of course. But it is time to assert the primacy of the many over the power of the few. An FCC making the right call on this issue will go down in history as a champion of civil rights and the public interest.