Historical Context for the Imminent Demise of Network Neutrality

On December 14, the Federal Communications Commission will vote 3-2 along party lines to obliterate the regulations that preserve the principle of network neutrality in the United States. Many have written more eloquently than I can on the policy implications; some excellent examples reside here, here, and here.
But the spectacularly misnamed “Restoring Internet Freedom” Order represents much more than a big wet kiss to internet service providers, giving them carte blanche to engage in data-discrimination dependent on content-creators’ – and your – ability to pay to send and receive. It functionally removes the FCC from having any role to play in making sure that ISPs don’t balkanize the online world to extract maximum revenue, pushing that responsibility into the lap of the Federal Trade Commission – though one Commissioner has already gone on record saying the FTC doesn’t have the legal authority or technical expertise to handle it.
As added bonuses, the Order also preempts any and all state laws that might seek to preserve the principle of network neutrality going forward, and allows ISPs to play fast and loose with the disclosures they must make regarding what you actually get when you pay for broadband service.
In the short term, the loss of net neutrality will spur new rounds of vertical integration in the media and tech industries, as ISPs acquire content-creators to construct proprietary walled gardens of information/entertainment products and services that favor their platforms over all others, and cut what deals they can with the platforms they can’t fully own or control to provide “privileged” access to them. This is precisely why Comcast acquired NBC/Universal, Verizon purchased Yahoo! and AOL, and AT&T wants Time Warner.
The FCC’s vote will also trigger judicial challenges, which could take years to play out. It will be very important to remain vigilant in the wake of net neutrality’s repeal and highlight/document the differential treatment of data that internet service providers will engage in going forward.
What’s more troublesome than the destruction of net neutrality itself are the methods used to make it happen. Keep in mind that FCC Chairman Ajit Pai, a former Verizon lawyer among many other things, announced his intent to do this back in April – and took the opportunity to preemptively tar the critics who would oppose his crusade, which completely unmasked the ideological nature of the exercise.
Pai’s unabashed market fundamentalism colors every corner of his worldview, and he sees his role as a regulator not about making sure there’s a fair market so much as there’s a free market – free in the sense of being unencumbered by any constraints or limits. The words and deeds of the FCC over the last seven months have made this crystal clear. But this is the work of a disciple in a multigenerational campaign waged in business, politics, and education for more than four decades.
Lewis Powell, the architect of this campaign, wrote a manifesto in 1971 about the need for corporate America and those most well-off to go on the offensive against what, after the tumult of the 1960s, Powell viewed as an existential threat to the American ideal of “free enterprise.” “The most disquieting voices joining the chorus of criticism [of capitalism] come from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians,” Powell wrote. “One of the bewildering paradoxes of our time is the extent to which the enterprise system tolerates, if not participates in, its own destruction.”
How to counter this? Powell suggested an ambitious and multi-pronged approach. “The overriding first need is for businessmen to recognize that the ultimate issue may be survival – survival of what we call the free enterprise system, and all that this means for the strength and prosperity of America and the fredom of our people. . . .If our system is to survive, top management must be equally concerned with protecting and preserving the system itself.”
Powell suggested corporations appoint executives whose sole responsibility would be to work at the intersection of politics and economics. He recommended the establishment of “a staff of highly qualified scholars in the social sciences who do believe in the [capitalist] system.” These scholars would be charged with publishing “a fairly steady flow of scholarly articles presented to a broad spectrum of magazines and periodicals. . .and to the various professional journals,” which would offer a more “attractive, well-written” defense of “‘our side.'”
Think-tanks, both internal and external to corporate America, could sustain a “speaker’s bureau which should include the ablest and most effective advocates from the top echelons of American business” to spread this gospel. These efforts should be supplemented by paid advertisements in a variety of media outlets to reinforce the free-market message.
Powell sketched out a corporate invasion of higher education: he recommended critical evaluation of and organized protest against “social science textbooks, especially in economics, political science, and sociology” which did not provide enough fealty to free enterprise ideology. This should occur in conjunction with an effort to insist that campuses allow market-friendly speakers in the name of “equal time,” and the exercise of pressure to ensure that friendly faculty got hired, including the creation of schools of business. He suggested many of the same tactics be applied to the K-12 education system.
Furthermore, Powell suggested that media “be monitored in the same way that textbooks should be kept under constant surveillance. . . .Whether this criticism results from hostility or economic ignorance, the result is the gradual erosion of confidence in ‘business’ and free enterprise.” He recommended that “Complaints – to the media and to the Federal Communications Commission – should be made promptly and strongly when programs are unfair or inaccurate.”
Finally (for our purposes here), Powell outlined an effort to help corporate America reverse its status as “the ‘forgotten man'” in the policymaking process. He justified this statement by noting lawmakers’ and regulators’ natural inclinations at the time to support laws and rules “related to ‘consumerism’ or to the ‘environment.'” To him, “political power is necessary. . .such power must be assidously [sic] cultivated; and that when necessary, it must be used aggressively and with determination – without embarrassment and without the reluctance which has been so characteristic of American business.” This could be complemented by “a highly competent staff of lawyers” who would be authorized “in special situatons. . . to engage, to appear as counsel amicus in the Supreme Court” and other legal venues to advance the ideals of business in matters of law.
“While neither responsible business interests, nor the United States Chamber of Commerce, would engage in the irresponsible tactics of some pressure groups,” Powell concluded, “it is essential that spokesmen for the enterprise system — at all levels and at every opportunity — be far more aggressive than in the past. There should be no hesitation to attack [those] who openly seek destruction of the system. There should not be the slightest hesitation to press vigorously in all political arenas for support of the enterprise system. Nor should there be reluctance to penalize politically those who oppose it.”
Mere months after penning this manifesto for the U.S. Chamber of Commerce, Lewis Powell was nominated by Richard Nixon to serve on the Supreme Court, which he did until 1987.
46 years have passed since Powell penned his manifesto, and in that time a robust, interlocking network of “free market” policy shops and media watchdogs have thrived, with representatives in Washington, D.C. and every state capital. The right wing, which includes corporatists like Pai, even has its own media ecosystem now, whose influence on our public sphere was definitively proven in the 2016 election-cycle. Corporations are now people in the eyes of U.S. law and money is speech in our political process.
2017 has been the the ultimate payoff-year for these campaigns of ideological avarice. That’s why Chairman Pai and his cronies feel perfectly comfortable peddling outright lies to justify their policy positions, and have no compunction demonizing those who oppose the net neutrality proceeding in particular. Meanwhile, they make jokes behind closed doors with their industry pals about how corporatism actually runs things.
It’s also why Pai et al. did nothing to stop multiple efforts designed to corrupt the public record in the net neutrality proceeding: this included poisoning the docket with spam-comments, some of which legitimately constitute identity theft, and excluding information that did not support the agency’s regulatory intentions. So far, the FCC has actively hindered investigations into these efforts.
The delegitimation of public comment and agency in the policymakng process has implications far beyond the net neutrality proceeding, and even the FCC itself.
If there is one commentary that sums up the convergence of anti-democracy in the United States most clearly, it’s that of Sarah Kenzidor, who sees the FCC’s repeal of net neutrality, in conjunction with other FCC policies designed to further corporatize and politicize our media environment, as a killing blow for any chance to turn the tide of history. “For nearly a year, America has stood at the crossroads of a damaged democracy and a burgeoning autocracy,” she writes. “If net neutrality is destroyed, we will cross firmly into the latter, and our return is unlikely.
“The erosion of freedom of speech and assembly has always been a hallmark of dictatorship, one traditionally associated with formal decrees of censorship or dramatic acts like book burning. In Mr. Trump’s corporatized administration, overt state censorship is unnecessary and undesirable: Instead, technology can be manipulated while excessive litigation can force the media into self-censorship. The subtler gesture of removing the neutrality of the internet allows constitutional rights to remain intact on paper but demolished in practice.”
Seen in conjunction with the ongoing plunder of the executive branch more broadly, assaults on the judicial branch and a citizen’s fundamental right to vote, Kenzidor’s outlook is dire. “What can we Americans do? Talk about it – while we still can. Call our representatives, organize in our community, and have a plan for what we’ll do should these repressive initiatives pass. Over the past year, citizens have had success exerting public pressure on officials and raising consciousness over social issues. The internet was key to these endeavours, which is precisely why the administration wants to eliminate equal access to it. If we, as Americans, want to retain our voice, we must speak up now, or forever, involuntarily, hold our peace.”