Net Neutrality and Independent Media

What is Net Neutrality?

Net neutrality is the principle that similar internet traffic gets treated in similar fashion. Imagine that someone wants to get on the internet from home or office. That person is dependent on an internet provider (ISP: internet service provider). This ISP has a lot of power in regards to how a person uses their internet connection; in that it can easily peer into that person’s internet activity. Armed with that knowledge, the ISP can target the consumer with narrow casted marketing. In other words, the ISP recognizes a consumer’s particular activity and then informs the consumer that they will have to pay extra for that particular service. However, it can also work in the reverse. When the ISP realizes the consumer is making use of the said service, it can then offer it up free as part of another package. So there’s the rub.

Things may change drastically in the way American consumers get their news, in regards to freedom of informational flow. President Trump has appointed a Republican FCC commissioner, Ajit Pai, to FCC Commissioner. In the past Pai has vowed to use a “weed whacker” to FCC rules. Net neutrality falls under FCC purview.

Senator Al Franken

Senator Al Franken from Minnesota has been in the vanguard of politicians trying to curb the dismantling of net neutrality. In a recent press release he had this to say:

“Net neutrality is a principle that says all content on the internet should be treated the same by service providers. Content from big corporations should be available to you in the same way as content from a blog, or a little mom-and-pop store.”

An era of fake news, post truth and alternative facts has merged with a witch hunt on credible news sources. Much of the vitriolic language has emanated from the White House and especially from Steven Bannon. He was the former executive chair of the ultra-conservative Breitbart News; and is now Chief Strategist and Senior Counselor to President Trump. Is this becoming the new reality?

Well, it sort of has already become a reality. One example is the integration of Netflix with Comcast. Netflix is a content provider and Comcast is a cable/internet access provider. Comcast, incidentally, owns the media giant NBCUniveral. There are others as well. All the more reason that an impartial ombudsman or overseer keeps the rights of consumers in balance with the financial might of large corporations. What is at the core of the net neutrality discussion?

Rejo Zenger

Rejo Zenger is researcher and policy advisor with the Dutch non-profit, ‘Bits of Freedom’. The advocacy group, situated in Amsterdam, is committed to defending the digital humans’ right of citizens. Zenger explained, that when net neutrality is curtailed, the end game is that start up or independent news and media outlets can’t break into the artificially truncated market. Moreover, said Zenger, the startup companies don’t have the financial capacity to cut a deal with the ISP, which would lend preferential internet routing to their sites. These deals are often called ‘fast lanes’ by which companies with deep pockets can pay for preferential access to particular sites. Innovation, variety, and personal privacy become the sacrificial lambs in such arrangements.

It’s been widely reported that only 6 major corporations own 90% of mainstream media. In addition, another public secret is that nearly 80 percent of the top 20 online news sites are owned by the 100 largest media companies. This was one of the major tenets in the documentary, ‘Democracy on Deadline: the Global Struggle for and Independent Press’. This hardly seems like a competitive market. Doesn’t America have any anti-monopoly (antitrust) laws in place that would stave off the kind of mergers of content and distribution? The short answer is, yes. The longer answer is best explained by an expert; a law professor.

Mark Bauer

Mark Bauer is a professor at Stetson Law School in Gulfport, Florida, about 10 minutes from downtown Saint Petersburg. He said there are lots of antitrust laws on the books but the “big three”, as he called them are; section 7 of Clayton Act and sections 1 &2 of Sherman Act. The antitrust laws “just try to tweak the natural market phenomena to make sure that competition remains viable; Bauer said. So how does this apply to net neutrality and the media?

Law professor Mark Bauer said that the theory behind not taking legal action against these mergers and acquisitions is that, it is assumed that there are so many alternatives to any single source of news. This means to say, that consolidation in media is irrelevant for competition or access to information, again as Bauer sees it. That may be theoretically sound, but pragmatically, it doesn’t seem to have worked out that way. What is the U.S. Department of Justice’s Antitrust Division analyzing as it determines if competition is being strangled? One is market power; the ability to exclusively, even at lower prices, and make a profit. Another is blatant price fixing. The third involves putting really big mergers under the loop. Once these mergers have finalized, it becomes difficult, if not impossible, to untangle the conglomerate. Mark Bauer quipped; “it’s hard to unscramble an egg.”

Final Stop

The final stop for any legal battle in the United States, if it makes it there, is the Supreme Court. Where does the Supreme Court stand on antitrust laws? It’s hard to know exactly. Bauer said that the current Supreme Court is made up of a bunch that doesn’t have the vast experience nor background, which others have had for the past 50 years, to take on antitrust cases.

The most troubling to those who advocate for net neutrality is that, according to law professor Marc Bauer, since Justice Stevens’s retirement in 2010, the court has not “spoken with a particularly coherent voice towards antitrust.” In other words, partisan news might be something we will be dealing with for the foreseeable future.