And then there were two. That, at least, is the stark prospect facing us in the area of broadband communications, with the Supreme Court’s decision in National Cable & Telecommunications Association v. Brand X Internet Services setting the stage for just two companies – the local cable monopoly and the incumbent telephone giant – to control the “last-mile” broadband connections to our homes and businesses.
This broadband “duopoly” stands in sharp contrast to the vast numbers of Internet service providers (ISPs, some 7,000 of them at their peak) who plied their trade during the ’90s. The dial-up connections they offered may have been slow in comparison to the swift cable and DSL networks of today, but competition and innovation online were fast and furious throughout the ’90s, when the sheer diversity of applications and services made the Internet what it is today.
While the Brand X decision hinged on technical and legal considerations (specifically, whether cable modems should be classified as regulated “telecommunications” or as unregulated “information” services, and whether the Ninth Circuit Court should have deferred to the FCC’s purported expertise on this issue), now that the decision has been rendered, the task for media reformers is clear: The battle for broadband open access may have ended, but the battle for network neutrality has just begun.
ISP choice may now be a dead issue, in other words, since the FCC is likely to extend cable’s exemption from line-sharing requirements to the telephone companies’ broadband networks as well. But content and application choice remains very much alive. No longer a novelty or a luxury, the Internet is simply too important – to our economy, our culture, our democracy – to be left to the whims of the marketplace – particularly when that marketplace is dominated locally by two corporate behemoths.
Either by legislative fiat or by regulatory policy, we now need a guarantee of nondiscriminatory transport of all information in the high-speed Internet. Whatever else the cable and telephone companies elect to do with their broadband networks (and both seem bent on the so-called triple play of video, voice, and data), one thing they should not be permitted to do is tamper in any unnecessary way with the data we choose to send and receive or the applications and services we desire to employ.
Thus even as the old battle for “open access” has ended, the new battle for net neutrality and for freedom of choice online must now begin.