How Verizon’s Challenge to FCC Net Neutrality Rules Could Silence Minority Voices

Rashad Robinson is the executive director of ColorofChange.org, the nation’s largest online civil rights group, which uses the power of the internet to launch online campaigns that hold the government accountable and amplify the voices of black people in our democracy. You can visit the website and sign petitions, urge companies to divest from the private prison industry, or report police misconduct in New York City, where a majority of the people police “stop and frisk” are black and Latino men.

(Also see the SpeakOut video by John Wooley “LEAKED: The Internet Must Go.”)

“In the process, by utilization technology, we can hopefully, at times, make the voices of the young people who are being stopped and frisked in New York as powerful as [that of] the billionaire mayor who supports that policy,” Robinson told reporters this week.

Robinson is worried that the black community’s ability to be visible online is in danger. On Monday, a federal court in Washington, DC, heard arguments in Verizon’s legal challenge of the Federal Communication Commission’s (FCC) net neutrality rules. If successful in challenging the FCC’s ability to regulate the internet, Verizon and other big providers could usher in an online era where providers could “edit” what you see online.

Much like cable television, advocates say, the providers want to choose what content you can see online, charge different prices based on the content that you get, and charge companies like Google and Facebook extra fees for “fast lanes” to reach users at high speeds. Net neutrality rules have prevented such a tiered system, allowing small startups to compete on a level playing field with giants like Yahoo and Google.

Without net neutrality protection, the companies also could have the power to silence dissenting voices, or at least disfavor them with slower speeds to reach the public. So activists such as Robinson have every reason to be concerned.

“Major companies’ interest in restricting our voice, restricting our access, is of ultimate concern to an organization like Color of Change and the future of organizing in our democracy,” Robinson said.

In 2010, the FCC issued net neutrality rules demanding that service providers operate in a transparent manner. The rules also say that fixed broadband providers cannot block lawful websites and applications, such as those offered by their competition, and mobile providers cannot block websites or apps such as Facetime that compete with their voice services. Finally, providers cannot discriminate against lawful traffic by creating tiered speed systems like “fast lanes” for those who can pay and “slow lanes” for those who cannot.

In court on Monday, Verizon argued that the rules are arbitrary and the FCC lacks the authority to enforce them under existing communications law. The company’s lawyers went even farther, arguing that the rules violate providers’ First and Fourth Amendment rights.

In their legal filings, Verizon argues that the First Amendment protects those who transmit the speech of others. “Just as a newspaper is entitled to decide which content to publish and where,” the company argues, “broadband providers may feature some content over others.”

During the early years of the Bush administration, the FCC gave away much of its authority to regulate internet providers by refusing to classify them as “common carrier services” like traditional telecommunications such as phone lines, according to analysis by the pro-neutrality group Free Press.

The FCC’s failure to classify broadband as a “common carrier,” which Free Press calls a “misstep,” backs Verizon’s argument that the FCC does not have the authority to enforce its net neutrality rules and prevent selectively blocking and slowing web traffic. The oral arguments presented Monday suggest that the case may rest on whether it appears that the regulators are wrongly imposing “common carrier” stipulations on internet providers.

The three-judge panel seemed to accept that the FCC has some authority over internet providers but was more skeptical about the FCC’s authority to craft net neutrality rules, according to reports and other observers. The judges specifically asked lawyers for both sides if the court could uphold the rules that prevent providers from blocking access to websites while taking issue with the anti-discrimination rule, which prohibits “pay for priority” agreements that give preferential treatment to web services that can pay extra fees.

Michael Scurato, policy director for the National Hispanic Media Coalition, told reporters that the FCC got caught up in loopholes it created in its net neutrality rules.

“For instance … the panel of judges had a lot of questions as to how the anti-discrimination principal worked. You know, would companies actually be able to accept payment to prioritize traffic?” Scurato said. “And, unfortunately, a lot of responses were, yes, there could be ways worked out where that could happen. And that seemed to really confound judges on the panel who thought they were up here hearing arguments on these supposedly strong internet rules.”

Advocate groups like Free Press worried that the rules were too weak when they were introduced. And in court, the FCC all but conceded that big internet providers could charge web companies for preferential “fast lanes” to reach consumers at higher speeds. The agency was forced to concede this point to avoid arguing that it had created a “common carrier” rule, according to Jennifer Yu at Free Press.

The “common carrier” loopholes could lose the case for the FCC, according to TechFreedom, an anti-regulation think tank. Net neutrality rules, TechFreedom argues, do not protect consumers and are simply the FCC’s attempt to stay relevant in a world that no longer needs its regulatory authority. The non-discrimination rule, they argue, effectively bars “innovative arrangements for new services.”

By the time this article was posted, a spokesperson for TechFreedom had not responded to questions from Truthout about how striking down net neutrality would impact minority voices online.

Those “innovative arrangements,” however, are exactly what internet freedom advocates fear could harm startup and minority business as well as grass-roots and minority voices that don’t have the resources to pay for preferential, high-speed fast lanes to deliver their message to the public.

Imagine, for example, that Fox News and CNN websites could afford priority “fast lanes” to deliver content, while independent news sites could not. The corporate media websites would load faster than the independent websites.

“This difference would likely have the long-term effect of fewer people relying on independent web sites or news and information and make it difficult for them to compete with the big guys,” said Chancellor Williams of Free Press. “As a consumer, you wouldn’t know that your internet service provider is interfering, you would just believe that somehow the independent sites don’t work as well.”

This could also have a big impact on minority communities, which have been able to find a voice online in a world where they are often ignored by corporate media.

“The internet works really well right now, and people have become accustomed to it,” Scurato said. “There are low barriers to entry, and we can have content produced by people of color that is bypassing the traditional gatekeepers like the cable companies.”

In a world where big players can pay for preferential access, he said, the “haves” will be able to operate in a business-as-usual manner, while the “have nots” may not have access to developing technology.

A decision in the case is not expected for several months, and it’s unclear how the judges will rule. If the net neutrality rules are struck down, advocates say, there will need to be a push on Congress to give the FCC authority to regulate big internet providers once again.