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Will net neutrality take effect on November 20th?

Approximately sixty days ago, the FCC published its net neutrality rules in the Federal Register, thus setting in motion a formal review process that ends on the 20th. Adopted in December 2010, only now, nearly a year later, they will go into effect. Given the enormous pressure exerted by the communications trust, the rules have not only been significantly watered down, but face powerful challenges from the Congress and in the court.

Under fierce pressure from corporate lobbyists and hefty payoffs to Congresspersons on various oversight committees, net neutrality will likely be killed. The big losers in this action will be America’s commitment to free speech and, most assuredly, independent media makers, particularly long-form indie moviemakers.

Net neutrality consists of three basic Internet features. First, no data-speed discrimination; wireline data transport providers cannot discriminate in the management of network traffic. Second, no content blocking; network providers are prohibited from blocking lawful content, applications or services, including services that compete with a provider’s voice, video or other services. Third, transparency is guaranteed; broadband data transport providers, whether wireline or wireless companies, are required to disclose their management practices and terms of service.

Progressive politicians, free-speech advocates, smaller content providers and even some big-dog companies have championed net neutrality as a means to keep the Internet open and the media “playing field” fair. As Senator Al Franken (D-MN) noted, net neutrality assures that “a blogger should have the same ability to find an audience as a media conglomerate.”

The communications trust, the huge combine of cable and telephone companies along with the major content providers, has long fought net neutrality. Other then homilies to the 1st Amendment, the trust couldn’t care less about free speech or democracy, let alone competition. They insist that the Internet, with its underlying digital-data transport network, is private property, theirs to do with as they wish.

A century of taxpayer dollars (including DARPA funding) built what is technically known as the Public Switched Telephone Network, the infrastructure upon which America’s network of wireline and wireless communications is built, as well as the Internet. A public utility operated by regulated monopoly has given way to a free-market duopoly. Billions upon billions of taxpayer dollars in the form of subsidies, tax write-offs and subscriber rate increases have been all-but-forgotten in the effort to kill net neutrality.

The Internet, and the infrastructure of online and mobile transport technologies through which it is accessed, are the result of enormous amount of public (i.e., taxpayer) investment. In the decades since the “Reagan revolution,” in which public investments have been privatized, the nation’s vitality has been eroded. (The U.S. now rates 15th in broadband speed.) This erosion contributed to the Great Recession and the ongoing depression now gripping the nation.

The FCC is an agency is crisis, reflecting the deeper crisis in which a basic American right, free speech, becomes subservient to private, corporate interests. The crisis is the result of what is known as “regulatory capture,” a phenomenon gripping most federal (and state) ostensible-oversight agencies.

Regulatory capture is endemic to corporate-controlled American political system. Writing in Bureaucracy (1989), the political scientist, James Q. Wilson, found that it “occurs when most or all of the benefits of a program go to some single, reasonably small interest (and industry, profession, or locality) but most or all of the costs will be borne by a large number of people (for example, all taxpayers).”

Regulatory capture is endemic to a host of oversight agencies, including banking and finance, medical devices and food safety. The most shameless example of capture involving the FCC occurred in May 2011 when, following its (and the Justice Department’s) approval of Comcast’s takeover of NBC-Universal, Commissioner Meredith Attwell Baker left the agency to take a senior position at Comcast.

One of President Obama’s campaign promises was to strengthen Bush-administration rules of online equity and telecom-industry competition. Sadly, like so many other Obama campaign promises, these have gone unfulfilled. His inaction is due to a combination of factors, including the FCC’s inherent commitment to deregulation, court rulings and direct Congressional intervention.

In April 2010, the U.S. Court of Appeals for the District of Columbia Circuit blocked an effort by the FCC to penalize Comcast for slowing data traffic of subscribers using peer-to-peer file-sharing services to download large files. The Court insisted that the FCC did not have the authority to protect net neutrality; efforts to date to pass legislation giving it such authority have gone nowhere. A month after the FCC announced its net-neutrality rules, Verizon filed a challenge in federal court to block the FCC net neutrality rules. It based its challenge on the Comcast decision. In all likelihood, a federal court will block the November 20th implementation of net neutrality as it faces litigation.

In December 2010, the FCC issued its “Open Internet Order” (OIO) that set the stage for the ending of net neutrality. OIO formally blocked Internet data-transport companies from setting-up fast lanes, thus privileging certain content over other. However, it did not prohibit service providers from establishing tiered-pricing models (i.e., “data caps”) analogous to the different cable programming tiers. Most insidious, it allowed service providers, the telcos and cable operators, not their customers, to decide which content to prioritized.

Adding fuel to the fire, in April 2011, Tea Party Congressman Fred Upton (R-MI), House Commerce Committee Chairman, spearheaded the telecom trust’s war against net neutrality. As TechCruch reporter Nicholas DeLeon discovered earlier this year: “… Five congressmen who voted against Net Neutrality, the top three ISPs gave their campaigns some $868,024 over the past four election cycles.” Upton was a recipient of telecom trust largess, receiving over $45,000 over the preceding four Congressional races. A loyal son of the fast buck, Upton pushed through legislation in April (H.J. Res. 37) to end net neutrality; the House, in a 240-179 vote, dumped data equality; the resolution in now before the Senate.

A year or so ago, the issue of net neutrality galvanized indie media makers, the progressive community and many within corporate America. Today, it has all but vanished for the political agenda. A word to the wise: Keep you eyes on what happens on the 20th.

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David Rosen is a writer and business-development consultant. He is author of the indie classic, Off-Hollywood: The Making & Marketing of Independent Films (Grove), originally commissioned by the Sundance Institute and the Independent Feature Project. For more background information, check out DavidRosenWrites and DavidRosenConsultants.

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