Years of lobbying and litigation has made it clear Comcast wants to turn the Internet into a toll road and run the booth
If you have signed onto Twitter and have been following the network neutrality debate, you’ve probably seen Comcast’s campaign to rewrite its history of opposition to the Open Internet. But the company’s own statements to Congress, the FCC, and to the courts make Comcast’s true goal abundantly clear: free rein to use its market power to become an Internet gatekeeper.
Converting the Internet into a Pay to Win System
In the early legal battles over network neutrality, Comcast challenged a Republican FCC’s ability to enforce open Internet principles. In repeated legal filings, the company made clear that it did not believe the FCC could prevent providers from data discrimination unless it reclassified them as common carriers. After all, Comcast itself said in court that “nondiscrimination obligations are the hallmark of common carrier regulation (page 12).” In other words, Comcast was saying that the FCC couldn’t impose nondiscrimination rules unless it reclassified Comcast as a common carrier – which is exactly what the FCC did in 2015 and exactly what Comcast is fighting now. “Common carrier regulation” is code for Title II of the Communications Act. “nondiscrimination obligations are the hallmark of common carrier regulation” -Comcast’s 2009 court filing in Comcast vs FCC
The Comcast Plan If Network Neutrality Is Repealed
At the FCC, Comcast doubled down. In 2010, Comcast told the agency that one of the “benefits” that would be lost under an Open Internet Order would be the ability for cable and telephone to strike exclusive deals with Internet companies – in other words, paid prioritization, or “fast lanes” for those who can afford them.
“The proposed rule could prohibit Internet content, application, and service providers from improving their existing offerings with the assistance of a broadband ISP, regardless of whether doing so would be pro-competitive and beneficial to consumers.” –Comcast FCC filing, Jan 14, 2010 (page 40).
While Comcast attempted to make paid prioritization sound like something that would be good for online service competition, it is pretty obvious how these types of exclusives and priority access deals will play out in reality. In practice, what we will see is the biggest Internet companies getting premium access to bandwidth while every mom-and-pop business and tech startup will get relegated to inferior infrastructure because they do not have the excess capital to pay for access. For example, even as the FCC was actively pushing a new Open Internet Order in 2014, Comcast started rerouting and degrading Netflix traffic despite the demand coming from Comcast’s customers. Today, Netflix says it can pay for fast lanes – but the next Netflix won’t be able to survive in that world.
Setting up the FCC to Fail
In its PR campaign, Comcast claims that its decision not to challenge the 2010 Open Internet Order is evidence of its support for network neutrality. In reality, it’s likely the company stayed quiet because shortly after the Open Internet Order was approved Comcast was required to operate neutrally as a condition of its merger with NBC Universal. It had little to gain from publicly opposing the 2010 Order because they could not lift network neutrality obligations over their network even if they won in court due to merger conditions. Those Comcast NBCU merger conditions will expire in 2018. Here is what they said following the merger during consideration of the FCC’s second defeat under Verizon vs. Comcast as they were asking for approval of yet another merger (this time with Time Warner Cable).
“Comcast agreed to be bound by the FCC’s Open Internet rules until 2018. These protections will now extend to the acquired TWC systems, giving the FCC ample time to adopt (and, if necessary, to defend) legally enforcement Open Internet rules applicable to the entire industry.” -Joint statement by David L. Cohen (Comcast) and Arthur T. Minson (Time Warner Cable) to the Senate Judiciary Committee regarding the Comcast-Time Warner Cable merger
Translation: Don’t worry about our merger because we are bound to respect the Open Internet Rules for now, and by the time the agreement expires, the FCC will have found a legally enforceable basis for net neutrality protections. As Comcast indicated way back in 2009, that path required the FCC to do exactly what it did in 2015: reclassify broadband as a common carrier service. So Comcast’s record is pretty clear: the cable behemoth has known for years what the FCC had to go to get legally sound neutrality rules. Now the FCC has done it, Comcast is fighting tooth and nail to reverse it.
If we want to stop the Comcast plan to repeal network neutrality and convert the Internet into a pay-to-win system where only the largest players can compete for access to subscribers, squeezing out innovative and competing services (not to mention libraries, hospitals, schools, and political organizations), then we must act now.