If the FCC Doesn’t Regulate the Internet: Predicting a possible history of cyberspace

by Matthew L. Schafer

Note: Last week, Jack Shafer over at Slate wrote a piece entitled, “If the FCC had regulated the Internet: A counterfactual history of cyberspace.”  Shafer’s piece essentially lays out a doomsday scenario of what would have happened if the FCC had regulated the Internet since the early 90s.  Shafer paints a picture where the malefic (and government supporter) “Microsoft Bob,” a V-Chip enabled Web browser, controls the market, stifling innovation and development.  It’s only appropriate then to postulate what a future without regulation will look like.  So, let’s give making stuff up a try.

It’s April of 2010 and Comcast is taking the FCC to the mats in the D.C. Court of Appeals.  There, Comcast argues that the FCC has no authority to prevent it from throttling P2P traffic.  The court agrees, declaring that the FCC’s regulation is not “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.”

In June, the FCC–still reeling from its slap in the face from the D.C. Court–begins its notice of inquiry into net neutrality rules in an attempt to reinforce its authority.  AT&T, Verizon, Google, and Comcast spend millions of dollars lobbying the FCC and the legislature in hopes of winning one or both over.  Advocacy and civil liberties groups are left on the wrong side of the closed doors, while industry executives meet with FCC Chairman Genachowski.

While industry and the FCC iron out the details of a “net neutrality” order that isn’t net neutrality, AT&T hangs a carrot in front Sling Media in an attempt to convince it that Slingbox will finally be offered on its network.  Seeing that the industry lobbying efforts at the FCC are going well, Comcast starts throttling BitTorrent traffic again.  Downloads creep along at 1 Kb/s.

Thousand of concerned citizens send comments to the FCC begging for an open Internet, while other citizens argue that net neutrality is a solution in search of a problem.  T-Mobile and AT&T block text messages from organizers advocating for strong net neutrality, while opponents text messages and data flies through.

December finally rolls around, and the FCC passes “corporate net neutrality.”  The new rules are riddled with loopholes, which allow the same people who helped draft the rules evade the rules.  The rules fail to enforce a no discrimination rule for mobile broadband, despite American’s increasing use of the Internet on the go.  Sixty days after the rules end up in the register, the rules go into full effect.  Republicans decide not to attempt to repeal the rules after realizing the new rules actually help the telecommunication campaign donors.

With the rules in place, Netflix’s streaming service suddenly hits the skids on cell phones across the country, as AT&T and Verizon are demanding that Netflix pay for preferential treatment–a practice not explicitly dealt with to any real extent in the FCC order.  In February of 2011, Netflix slips off the S&P 500 after just three months on the list.  Later that month it closes its doors, as users are forced to purchase movies and TV shows through iTunes only.

Netflix later says, “I told you so,” citing a December 13 letter to the FCC where it stated that “a wireless regime that merely prohibits blocking of websites is especially incomplete inasmuch as the future of wireless innovation is based more and more on applications.”

In March, Vonage, one of the last independent VoIP services alive, is blocked after it too refuses to pay extra for access to the pipes.  The FCC investigates, but determines, after much prodding from Verizon, that the blocking is considered “reasonable network management,” which does not violate the new rules.

March also spells trouble for WikiLeaks, as ISPs decide to drop the hot potato, because of the controversy surrounding a now on trial Julian Assange.  Citizens around the United States notice the slow access to WikiLeaks.ch, and proceed to file complaints with the FCC.  The FCC receives millions of complaints, essentially paralyzing the bureaus–nothing is resolved.

Finally, in June, the inevitable happens when Comcast again files suit against the FCC arguing that the FCC lacks the authority to regulate ISPs.  Its argument hasn’t changed since the case a year before; it argues that section 230 of the 1934 Communications Act does not give the FCC “ancillary authority because the… [provision] amounts to nothing more than a congressional ‘statement of policy.'”  Comcast wins at the district court level.

The FCC appeals, but loses.  Despite commentators’ belief that the Supreme Court will grant a writ of certiorari, it does not.  The telecommunications industry applauds as the rules it had a hand in crafting crumble, leaving no substantive regulation.

As the world rings in 2013, Cox and Comcast are the first large ISPs to begin offering tiered access based on usage, charging for the amount data usage on wired broadband.  Comcast launches three different plans, 200mb for $25, 5 GB for $60, and the ultimate 10 GB plan for $200.

Cox and Comcast also decide to package up the Internet.  The “News Max” package gives users access to The New York Times, BBC, The Guardian, and several others.  (It used to include the Los Angeles Times, but it went out of business.)  The “Social Butterfly” package, which costs three times the “News Max” package’s $10, gives users access to Flickr, Facebook, and Twitter.  Don’t worry, if you want both, you can get the “Social and Smart” package for ten bucks less.

In February, Wired revisits its much acclaimed 2010 article, “The Web is dead.  Long live the Internet,” and declares that the Internet is now dead.  Wired declares, “The once free and open Internet is now a long ago fantasy that few imagine will ever be reality again.”


Flickr/kyz (top) and patriziasoliani (bottom)

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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