Published in Pop + Politics dot com, July 07, 2005

Upon closing the docket for summer recess, the Supreme Court released numerous decisions concerning the technology of the future. The case which has by far been highlighted in the media has been the Grokster decision (Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.), which mandated that a company inducing customers (by marketing or advertising) to use their products for copyright infringement could be held liable.
Whereas the Grokster decision has to a certain degree created more ambiguity than resolution (what exactly is “inducement?”), another case, National Cable & Telecommunications Assn. v. Brand X Internet Services, has created broad implications on the future of the Internet and ultimately, the future of the access to information.

To understand what is at stake in the Brand X decision, you have to understand exactly how the Internet works. The Internet is millions of users connected via a central network. This central network distributes the information sent to it from one user and directs it to the proper recipient. So if you send an email, the central network locates the recipient and forwards the email onward. Most importantly, what it does not do is look at the information.

The vitality of the Internet is based on this fundamental principle of “blindness.” A “blind” Internet allows technologies to:

1. Compete perfectly

2. Gives control to the end users (you and I) by, for example, allowing the user to choose which plug-ins to install

3. Negates the potential for censorship by one party. At least this is true for Internet provided over telephone lines (modems).

But the future of the Internet is not telephone lines, it is cable or “broadband” and it is here that the Brand X decision is so pernicious.

Telephone companies, as telecommunications providers, are required by law to provide access to their wires to competing companies. One can get his/her Internet over telephone lines from any number of Internet Service Providers (ISPs) in the area. These ISPs then compete with each other for your business, driving down the cost of access and ensuring no one company controls the central network (hence leaving it “blind”).

Cable and DSL companies on the other hand, have no such legal restrictions and do not need to provide competitors with access to their wires. The negative results of this can be seen nationwide, with higher than average costs for broadband access and little to no incentives to improve speed or area of coverage (many towns in America still do not have the infrastructure to provide residents with high-speed Internet access).

The National Cable & Telecommunications Association brought the case to the Supreme Court, after having lost in the lower courts. Their goal was to maintain their exemption from the regulations of the Telecommunications Act of 1996. In a hotly debated 6-3 decision, the Supreme Court upheld the FCC’s 2002 classification of cable broadband as a deregulated “information service” and not “telecommunications service.”

In a scathing dissent, Justice Antonin Scalia stated, “After all is said and done,... and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is 'offering' telecommunications.” The net effect of the ruling kept cable companies exempt from the regulations of the Telecommunications Act and effectively locked out small ISPs from competing.

The outlook for broadband penetration in the United States is not good. By maintaining the monopoly status of the broadband industry, the Supreme Court has ensured little to no incentive for the incumbents to innovate and provide access to neighborhoods where profits are low (rural and poor areas) and potentially defeated the intended blindness of the Internet.

With emerging technologies like Voice-Over-Internet-Protocol (VoIP) slated to have profound effects on the way we communicate, the decision seems heavy handed and favors the technologies of the past, as opposed to the potential of the future. Moreover, the decision for cable companies looks to spread to telephone companies as well. Many are predicting that the open access regulations currently mandated for telecommunications companies are a thing of the past, and with VoIP competing directly against their interests, telephone companies would seize the opportunity to control the information passed over their wires.

The decision’s impact on free speech may be the most troubling. By giving one, two or at most a few broadband providers complete control over its customers’ access to the Internet, these providers "could censor their (customers) ability to speak, block their access to disfavored information services, monitor their online activity, and subtly manipulate the information sources they rely on."

How ironic then that the Internet, what Justice Stewart Dalzell of the United States District Court for the Eastern District of Pennsylvania described as, “...the most participatory form of mass speech yet developed...” might well become a top down, monopoly driven, glorified reflection of cable television or FM radio.