Comcast-Time Warner Cable and the Open Internet: One Issue, Not Two

It’s now a two-front people’s crusade to prevent gatekeepers from wresting control of our nation’s communications ecosystem. One front is preserving and protecting the Federal Communications Commission’s (FCC) historic passage of real net neutrality rules two months ago. The other is stopping the Comcast-Time Warner Cable merger in its tracks. Victory on both these fronts is essential if we are to have media that serve the needs of our diverse democracy.

Here is the state of play:

Open Internet
Lawsuits were filed before the ink was even dry on the Open Internet rules. Without taking any time to lick their wounds, the huge Internet Service Providers (ISPs) sent their lobbyists and lawyers to Capitol Hill to push for legislation to nullify the decision and to throw up every roadblock they can devise to halt implementation of net neutrality. If they can’t get reversal of the rules, they will try to cut the agency off at its knees by denying it funding to implement net neutrality and otherwise slashing the agency’s appropriation. Chairman Wheeler and his colleagues are regularly dragged up to the Hill for hearing after repetitive hearing -- to such an extent that it takes the Commissioners away from other important FCC business they need to be doing. The mega-ISPs are also pumping heavy resources into public relations via all sorts of ridiculous ads and media spin that seriously under-estimate the intelligence of the American people.

I knew this was coming. So did most of you. Nevertheless, it still makes me angry. But I keep reminding myself of Eleanor Roosevelt’s maxim: don’t get mad; get even. Getting even here means making sure these efforts fail.

Before the Commission voted, there was nothing on the books -- no rules against blocking, throttling, degrading, or prioritizing content. The court had thrown out the Commission’s timid 2010 net neutrality rules because they rested on shaky and indefensible legal foundations. The February 2015 decision gave us strong and viable rules against blocking, throttling, and paid prioritization. For the first time, the agency included strong protections for wireless connectivity, so no matter where or how consumers connect, their communications will be protected from ISP gatekeeping. And the majority (Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel) made sure the new rules were built on the most solid legal bedrock: Title II of the Telecommunications Act.

It was a really big, totally historic deal. And it felt spectacularly good after all those years -- 13 of them -- between the Powell Commission’s disastrous mis-classification of cable modem Internet and this year’s corrective action. Having been the lone vote against the 2002 decision made it all the sweeter for me.

But let’s be clear. Defeat can still be snatched from the jaws of victory. A huge consumer and citizen win can still be upended, consigning the Internet to irreparable gatekeeper control. Fast lanes for the few and slow lanes for the rest of us is the likely outcome should the entrenched ISPs win. And given their outrageous influence, it would be both foolhardy and dangerous for us to bask very long in the victory that has been won. They know the kind of Internet they want -- and it’s not the Internet that you and I want.

Make no mistake; the Internet they want is one where they exercise market power without any meaningful public interest oversight. That’s what this is all about. It’s not about the technical interpretations of a telecom statute or the fine print of FCC rules. This is a fight about whether the communications ecosystem our democracy relies upon will be under the gatekeeping thumb of a few all-too-powerful companies or whether the American people -- as consumers and as citizens -- will insist that their need for independent and diverse media is safeguarded. It’s an old fight with new verbiage, but at its heart it’s the kind of small “d” democracy battle that every generation has to fight again and win again.

Comcast-TWC
The proposed merger between Comcast and Time Warner Cable (TWC) is the same fight about gatekeeper control, consolidated media power, and the future of the Internet. This $45 billion transaction is about a lot more than cable programming. It’s about control over bringing broadband and the Internet to our homes and businesses. And it goes beyond controlling the distribution of broadband; it goes also to the content and programming that will (or will not) be available to us. That is why I voted as a Commissioner against the Comcast takeover of NBC Universal a few years ago. (Unfortunately I was the only vote against it.) Now Comcast is back again with $45 billion more to take over TWC and its extensive networks.

Allowing the nation’s largest cable company to purchase its next largest competitor is an insult to the public interest. With over 50% of the home broadband market, the combined Comcast-TWC giant would be the gatekeeper of all gatekeepers. The proposal would grant Comcast dominance in the overwhelming majority of the largest media markets. It’s a tie-up that would inflict serious harm on independent voices and further squelch content diversity. Hopefully the Department of Justice, which must approve or disapprove the deal on anti-trust grounds, will deny it because of its blatant anti-competitiveness. There is no way that extending the massive Comcast foot-print onto TWC’s vast territory can be judged pro-competitive or competition-neutral.

The merger proposal comes just as we are seeing exciting new developments in online content delivery that could create a whole new world for consumer choice, but it’s all subject to whether gatekeepers are invested with still more gatekeeper consolidation to hinder the innovation and entrepreneurship the marketplace would otherwise provide. There is a lot of talk these days about how people are cutting the cable programming cord and the challenges that cable consequently faces. But what about the cable itself that brings broadband and all this potential new content into your home? The companies may not be adding cable programming customers like they used to, but they are adding lots of broadband customers, and that’s where the real money lies.

ISP control of the pipes, fibers, and airwaves on which the Internet travels is an insurmountable mountain to a competitive marketplace, a denial of broadband’s awesomely transformative potential, and a body blow to the diverse news and information a free society needs to survive.

I said last year, as soon as this deal was proposed, that it should have been DOA with regulators right then and there. There are no conditions or “concessions” the companies can make that would allow this combination to serve the public interest.

I do believe that this merger may not come to pass. I’m not predicting that because it’s still a steep climb with all the money and horsepower being spent on the other side, but some 800,000 comments, overwhelmingly against the merger, have already been filed at the FCC. We are within striking distance of 1,000,000. Add your voice today.

The FCC has never approved a transaction with this much opposition. Not only are concerned citizens around the country speaking out and rallying against it, but an increasing number of knowledgeable folks in Washington, as well as on Wall Street, seem to believe that the chances of Commission and Department of Justice approval are no better than 50-50, and perhaps declining every day. Even Comcast shows signs of getting nervous.

I have a theory why the future of the Internet and this particular merger have risen to public consciousness over the past year. The Comcast-TWC proposal came just a few months after the DC Circuit Court of Appeals overturned the FCC’s 2010 net neutrality rules. I believe this double-barreled assault -- the cable deal coming on top of the court decision -- woke a lot of people to a danger we all had not yet come fully to appreciate. Let me explain.

As an FCC Commissioner from 2001 until 2012, I devoted a lot of effort to putting the brakes on television and cable mergers, as well as, of course, all those telecom deals that the FCC loved to bless. Back then, a lot of folks thought that the Internet would never go down the road of consolidation and gatekeeper control that TV and cable took. The Internet was so dynamic and transformative, many people thought, that it was somehow exempt from the laws of economics and the quest for market control. Power was at the edges of the Internet, not in the cables, fibers, and airwaves that brought it to us. Sure, TV and cable were in trouble, but they were history; the broadband Internet was the future; and it was imagined to be on auto-pilot that would keep it forever free and open.

Fast forward to 2014 and a whole generation had become dependent upon the Internet, and now understood, because of the joint threats to the Open Internet and yet another gigantic Comcast deal, that our communications platform -- the way we communicate every day, the infrastructure we rely on -- was indeed in peril. Not only was the Internet threatened by gatekeepers, but the number of gatekeepers was shrinking as monopoly power spread its tentacles into market after market across the land.

Once the media gave some coverage to these two stories (and media doesn’t cover media very well), people “got it”. They realized the threat and millions went into action. They demanded an Open Internet, and now they are rallying against Comcast-TWC and the other big ISPs.

And you know what? I don’t believe these issues are red state-blue state, Republican or Democratic, even conservative or liberal. In Washington nearly everything is partisan and polarized, but most Americans, happily, do not live in Washington. Where they live (and there are surveys to document this) as many Republicans as Democrats are opposed to a fast lane-slow lane Internet, and I don’t believe GOP consumers are any more enamored than Democrats over rising cable/broadband rates and poor cable company service. Many in the elected class would do us a big favor if they woke up to this realization.

My Common Cause colleague, Todd O’Boyle, recently testified before the California Public Utilities Commission as that agency considers its approach to the Comcast-TWC proposal. We should all be concerned about not just the quality of customer service, he said, but the implications for our democracy. “This merger presents the question of whether Californians will have a champion. Whether the cable dial will reflect this state’s abundant diversity. Whether the Internet will remain a mechanism for voters to inform themselves, activists to organize themselves, and community members to hash out their differences. Or whether two of the largest, most powerful firms in the land will once again call their own shots. Our (Common Cause) founder, that great Californian John Gardner once said, ‘We are all faced with a series of great opportunities disguised as insoluble problems.’ The Commission is faced with a great opportunity that has a mercifully straightforward solution.”

We can prevail on both these fronts and thereby win the battle -- if we continue to push and rally and tell those in power they will be held accountable if they fail to make certain that our communications ecosystem is made safe for democracy. Because democracy depends so profoundly upon our ability to communicate freely, openly, and uninhibitedly.