It’s hard sometimes to know where to start when trying to figure out which criticism of Net Neutrality is the most misguided. Bullying and threats are always a good standby. The telephone companies have done it for decades as an all-purpose answer to anything they didn’t like. Pass X regulation and we won’t invest. Pass Y rule and we won’t deploy. Pass Z and jobs will be lost. Regulators are to be blamed for lower earnings.
The big media companies have it in their playbook also. If they don’t get another, bigger, badder protection/penalty against “piracy,” then all their wonderful content will be shut down. The penalties have increased steadily for years and they are still complaining and threatening to withhold content or even not create some new masterpiece. 60 Minutes ran a Nov. 1 segment on “piracy” that made some of the same claims, despite the facts to the contrary. More movies are being made than ever, and box office receipts are up – just the opposite of what is “supposed” to occur under the threat of “piracy.” Viacom threatened in 2002 to withhold high-definition content without copy controls on broadcast signals. Never happened.
It doesn’t matter which industry does it. The health care industries threaten death and doom if they get some real competition. Oil and gas companies threaten the end of our lifestyle if climate change legislation is passed. Pick an issue and some big industry bullies and threatens. It’s a wonder that anyone takes any of this seriously after all is said and done, or not done. But as long as feckless legislators believe it, there’s no reason to stop, is there?
In the Net Neutrality debate, there is another issue with another dimension. It’s not a basic fake economic issue. In a way it’s more dangerous because it’s political and pushes one of the conservative hot buttons – the Fairness Doctrine. And making Net Neutrality out to be the new Fairness Doctrine is right up there on the misguided list.
The Fairness Doctrine is one of those red flags sure to raise right-wing temperatures, from the most prominent broadcasting bloviator to the most obscure rabid web site. For the conservatives, the Fairness Doctrine is a government plot to curb right-wing radio. Glenn Beck told his listeners last year that, “They are going to do everything they can to silence our voices.” “They” of course are the Obama Administration and Congressional allies, who have said they won’t bring it back. Sen. Jim DeMint (R-SC) introduced legislation to ban the Fairness Doctrine. In doing so, DeMint said, “Democrats want to impose an unfair doctrine that destroys talk radio and silences the voices of millions of Americans who disagree with their vision for America.”
As a general matter, it’s a shame that “fairness” has become such a pejorative expression to conservatives and it’s too bad that in their paranoia they view any discussion of bringing the views of progressives or liberals to the mass media as a plot to shut them up.
Federal Communications Commissioner Robert McDowell was one of the first to suggest that Net Neutrality is a latter-day version of the Fairness Doctrine, thus combining one flash point with another. In a speech to the Media Institute on Jan. 28, 2009, McDowell discussed the potential return of the Fairness Doctrine and suggested: “Should it return again, as several current Members of Congress have called for, I doubt it would wear the same label. That’s just Marketing 101: if your brand is controversial, make a new brand. The Doctrine could be intertwined into other communications policy initiatives that are more certain to move through the system, such as localism, diversity or net neutrality.”
Rep. Marsha Blackburn (R-TN) picked up the theme more recently. Kim Hart reported in The Hill on Blackburn’s October 20 speech in which Blackburn said, “Net neutrality, as I see it, is the fairness doctrine for the Internet.”
Speaking to a group representing Tennessee songwriters and entertainers, Blackburn is quoted as saying that content creators “”fully understand what the Fairness Doctrine would be when it applies to TV or radio. What they do not want is the federal government policing how they deploy their content over the Internet and they want the ISPs to manage their networks and deploy the content however they have agreed on with ISP. They do not want a czar of the Internet to determine when they can deploy their creativity over the Internet. “They do not want a czar to determine what speeds will be available….We are watching the FCC very closely as it relates to that issue.”
Net Neutrality Is The Opposite of The Fairness Doctrine
Without understanding either concept, many conservative commentators and legislators picked up the meme. Search “fairness doctrine” and “Net Neutrality” and a rash of rabid sites pop up. On one hand, the Doctrine, repealed 22 years ago by the Federal Communications Commission (FCC), which created it in 1949, is the antithesis of Net Neutrality. Looked at another way, however, the Fairness Doctrine has some valuable insights into why Net Neutrality is necessary. The Fairness Doctrine, and the reasons behind it are much more nuanced than conservatives give credit for.
The Fairness Doctrine is an affirmative obligation given to broadcasters by the FCC. As then-U.S. Supreme Court Justice Byron White wrote in the 1969 Red Lion opinion upholding the Doctrine, “The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.”
In its original 1949 order setting out the Fairness Doctrine, the FCC said that broadcasters needed to be active participants in making certain that the public received many sides of an issue: “It is clear that any approximation of fairness in the presentation of any controversy will be difficulty (sic) if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints.”
To be clear, broadcasters were required to insert themselves into the process of determining which viewpoints were presented in order to maintain the required balance of views. There is no doubt this was not as easy a task as that 1949 order assumed. The Commission could, and did, tie itself in knots over striving to maintain fairness in a whirl of complaints and counter-complaints over all sorts of issues, particularly surrounding the Vietnam War. The adjunct to the Fairness Doctrine, the rules which allowed responses to personal attacks, were the basis of the case that led to the Red Lion decision. Those rules required broadcasters to offer a “reasonable opportunity to reply” if there was in the course of covering a controversial issue an “attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group.”
Net Neutrality, on the other hand, is the polar opposite of the Fairness Doctrine. Perhaps the best legal expression of Net Neutrality so far was the condition the Commission imposed in its order approving the AT&T takeover of BellSouth: “AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This commitment shall be satisfied by AT&T/BellSouth’s agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth’s wireline broadband Internet access service based on its source, ownership or destination.”
Another version is the legislation (HR 3458) introduced by Reps. Edward Markey (D-MA) and Anna Eshoo (D-CA). Their bill provides, in part that Internet Service Providers (ISPs) shall “not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet.” ISPs also could not “provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service.”
Here is the difference between the Fairness Doctrine and Net Neutrality. One, the Fairness Doctrine, requires active participation by a broadcaster in determining content. The other, Net Neutrality, requires the service provider to stay out of the way. Is that a “government mandate?” as some conservatives claim? Perhaps. But it’s a mandate to let traffic flow without attempting to judge the worth of one person’s traffic over another. They have no relation to one another. People who opposed, and oppose, the Fairness Doctrine should support Net Neutrality.
What The Fairness Doctrine’s History Can Teach Us About Net Neutrality
The Fairness Doctrine was created in an era of scarce public access to mass media – a condition that still exists to some degree today and, depending on the outcome of some deals being negotiated, may be even more scarce. Net Neutrality was created in an era of infinite access to the Internet and unparalleled opportunities to speak and to be heard. On that basis as well, the two ideas could not be more different.
At the heart of each of them, however is a strikingly similar philosophy about the relationship between the government, business and the American people. It’s a philosophy that connects Net Neutrality back to the very beginnings of mass media in this country and applies both in industries or scarcity and of abundance.
Herbert Hoover, then Secretary of Commerce, said this about radio in 1925: “Four years ago we were dealing with a scientific toy; to-day we are dealing with a vital force in American life. We are, I believe, bringing this lusty child out of its swaddling clothes without any infant diseases.” Stretch out the time line a little and the description isn’t so different from the origins and development of the Internet. In that same speech, he added: “The use of a radio channel is justified only if there is public benefit. The dominant element for consideration in the radio field is, and always will be, the great body of the listening public, millions in number, countrywide in distribution.”
The idea that a communications medium, any medium, exists to serve the public, is at the core of our communications laws. It carried through into the Communications Act for radio and telephone, which exist to serve the “public interest, convenience and necessity.” The 1949 FCC order similarly recognized that the “right of the public to be informed” trumped the interests of government and of private business, saying at one point that radio stations should not be used for the “private interest, whims or caprices of the particular persons who have been granted licenses, but in manner which will serve the community generally.”
Justice White, in upholding the Fairness Doctrine, put the relationship into perspective: “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.”
That’s why when DeMint and his colleagues had it backwards when their legislation to prohibit the Fairness Doctrine is called the “Broadcaster Freedom Act of 2009.” Under our system, the freedom of the public trumps the freedom of broadcasters. In the Internet age, we can do nothing less. The freedom of the public to hear what it wants to hear, to see what it wants to see, and to create what it wants to create should not be subject to the business plans of the telephone and cable companies.
That’s what our traditions and laws demand; that’s what the public deserves. That’s why Net Neutrality is so important.
Net Neutrality is nothing
Net Neutrality is nothing more than ensuring the thought cops at places like the Anti-Defamation League don’t nullify the First Amendment and shut down websites they don’t agree with under the guise of hate speech.
Cowards of Competition
To claim that content competition on a level playing field, enabled under net neutrality, is instead its opposite in the form of a Fairness Doctrine, is an astounding contradiction that attempts to smear competition itself as socialist regulation.
The very cowards of competition who spew this propaganda are the same ones who fiercely opposed the Fairness Doctrine in the past, on grounds that competition in the content market made it unnecessary.
Now that competition has flourished in the content market, they’ve reversed position, and decided that the very competition they once supported has morphed into “fairness regulation” by way of rules that preserve a level playing field for anyone who wants to compete in the content market.
To enable competition with net neutrality is the exact opposite of attempting to offset and compensate every point of view with an opposing view, in order to achieve “fair balance”.
The cowards of competition behind the “net neutrality is a fairness doctrine” claim would have you believe the myth that the internet is structured opposite to what it is, with thousands of ISPs competing in the same service area, so forcing all those ISPs to be “net neutral and fair” with their content is unnecessary, because there would be enough competing ISPs to provide many, multiple, diverse, points of view.
Of course it’s the exact opposite. That’s what the content market does now, with thousands and millions of competing content providers, for which the content flows over a physical infrastructure, controlled by only a few or single non-competing facility-based ISP providers of content delivery service.
The cowards of competition need to get their story straight. They were either for content competition and against the Fairness Doctrine in the past, or they’re against content competition and the Fairness Doctrine now, but they can’t be for both.
You left-wing interest
You left-wing interest groups really are trying hard to construct an alternative universe. Both the fairness doctrine and the internet regulation scheme that PK and its funders support make political appointees in the government the decision-makers over what is fair and open. Of course, those political appointees can be pressured by left-wing interest groups and non-profit shake-down organizations when Democrats are in charge. Supporters of freedom and the free markets don’t need propoganda to win arguments and voters and therefore they don’t need to control the messenger.
Great column! Hit the nail
Great column! Hit the nail on the head!
Politicization
I never understood why net neutrality needed to become so politicized. If MoveOn.org had stayed out of the debate, we’d be a lot closer to net neutrality right now. But since anything they touch gains the taint of their liberal agenda, no party-line Republican will support it now.
And it’s really unfortunate, too, because net neutrality is about ensuring personal and corporate freedoms, both things that conservatives ought to be in favor of.
"Network Neutrality" really is the Fairness Doctrine for the Net
The truth is that “Network Neutrality” truly is nothing but the Fairness Doctrine repackaged for the Internet age. It insists that every application — no matter how wasteful or abusive of the network — get equal treatment, even though this may cause new, innovative, or time-critical ones not to work. It insists that every Web site run at equal speed, when this is simply impossible to begin with (sites buy different amounts of bandwidth, and you can’t deliver a site faster than it can supply the data). It insists that “bits are bits” when in fact some bits really do need priority over others.
The fallacious argument that “The idea that a communications medium, any medium, exists to serve the public, is at the core of our communications laws” neglects to mention that unlike the public airwaves, communications networks are privately built and owned. They’re not a public resource and do not exist to “serve the public” (in fact, many of them are entirely private). Thus, this argument — which was originally made to support the Fairness Doctrine — holds no water in the case of the Internet.
The same political forces that favored the now-discredited Fairness Doctrine when it was first instated many years ago are now pushing for “Network Neutrality” regulation, hoping that the public will not recognize that it amounts to the same thing. And, now that their game plan is exposed, they are denying it.
Art, thou protesteth too much.
Net Neutrality != Fairness Doctrine
Fairness doctrine: Media outlets have to broadcast opposing viewpoints, regardless of whether there is demand for both viewpoints.
Net neutrality: ISPs have to provide connectivity to all services, but only have to provide bandwidth to those services demanded by the customer.
Speaking of protesting too much - the poster “ISP” above is the one presenting some quite fallacious arguments.
For example, the straw man of “every application, no matter how wasteful or abusive of the network, gets equal treatment”: only insofar as every abusive and wasteful application gets equal treatment to every other abusive and wasteful application. Net neutrality doesn’t deny an ISP the ability to regulate the bandwidth that a customer uses. It only requires that the regulation of bandwidth be neutral to the content that the customer is accessing. So, whether it’s BitTorrent, video streaming, or what have you, as long as the customer is using those services commensurate with their paid-for bandwidth limit, they get the bandwidth they paid for.
Another straw man, “It insists that every Web site run at equal speed, when this is simply impossible to begin with”: Not true - net neutrality only requires that an ISP provide the bandwidth paid for by the customer. If the remote host has paid their ISP for lower bandwidth, then that host will naturally be slower than, say, Google.
And a third straw man, “It insists that “bits are bits” when in fact some bits really do need priority over others”: Again, net neutrality doesn’t prevent an ISP from regulating the bandwidth a customer uses. If a customer is using more than their fair share, then set their traffic at a lower priority.
But this last argument reveals one truth: that most ISPs have been slow to upgrade their networks, and on a local level, they have been selling the same capacity to several customers, betting that those customers won’t all use that capacity at the same time. They are woefully unprepared for the day when video-on-demand - from third-party providers - is commonplace and even Grandma streams stuff from Netflix or Hulu.
Well...
I’d like to address the comparison between the FD and NN directly. In response to ISP.
The Fairness Doctrine insisted that every viewpoint get equal treatment. Is this a bad thing? Of course not. The idea of the Fairness Doctrine was spot on. However the problem came in implementation. There were far to many problems with its enforcement. Finally, it was only really useful where there were scarcity problems. When if one viewpoint dominated a radio station, then that’s the only viewpoint you would here. Obviously this is not a problem anymore.
The idea behind net neutrality is the same. To prevent sites (viewpoints) from being silenced. In an extreme example (the one that savetheinternet.com uses) where a site like google could be blocked, because your ISP made a deal with microsoft, so everyone one their network would use Bing.
However Neutrality falls into a problem where there is scarcity. Scarcity of Bandwidth. Some applications require higher quality/speed (say VoIP, Video Streaming, or Gaming). While some require very little (Say e-mail). If bandwidth were not an issue, Neutrality would work with flying colors.
However, in most cases, scarcity does not apply to non-application based uses (everything you can do in a browser).
You equate Absolute Neutrality with Net Neutrality. Which is not the case. It is certainly possible that FCC/Congress will pass rules/laws which have full neutrality for websites with a QoS stipulation for applications. Or even QoS stipulations for websites as well. This would still be partial neutrality. Even just a “You may not block any website, for any reason” rule would be great.
I think alot of the problems on the anti-NN side come from the idea that there’s either absolute neutrality or no neutrality at all. While full absolute neutrality with unlimited bandwidth is the ideal, that will be awhile before it will come into reality. In the mean time we must navigate this grey area and manage to get some legistlation/rules passed so that we have at least something, while not making our more heavy bandwidth applications boned.
Read again...
ISP said that Net Neutrality requires that EVERY program—no matter how abusive to the network—be allowed to operate on the network without hindrance. That is only half true (something that the ISP’s are good at). It clearly states LAWFUL use is to be unhindered. Thus, if, for example, the p2p programs that the ISP’s are afraid are being conducted in an illegal matter—such as pirating stuff—then they would be exempt (whether such programs are legal or not is not the issue here). The point is, it forces ISP to NOT prefer one providers content over another. For example, if I wanted to get my movies from Netflix instead of iTunes, there should be no difference between Netflix and iTunes (as far as speed) unless of course their respective servers are slow. What the ISP’s REALLY want to do is not make it fair. They want to be able to decide what you can and can not see by what makes them the most money. In otherwords, they will continue to charge you $40-$50 plus dollars a month while at the same time taking money from the content providers. If they are going to decide what I see, why should I have to pay them for it. In that case, I should be able to access the internet for free because they already would have their network access paid for.