Steve Effros

Commentary by Steve Effros

This gets complicated. It’s a mix of policy objectives, politics, personal relationships, conflicting interests and power. As Lord Acton noted, however, the one seeming constant in all this is that “…power corrupts, and absolute power corrupts absolutely.”

Gigi Sohn, the former head of the Public Knowledge advocacy group and now the ubiquitous voice of FCC Chairman Tom Wheeler’s office, said a very interesting thing the other day. She, correctly, noted that “…governing is very hard, and governing wisely is even harder.” She was talking about what she has learned moving from “one side” of the advocacy equation to the other. As a policy advocate you can be, as she so rightly points out she often was, totally absolutist and sometimes intentionally provocative. But on the “governing” side you have to take into account all sorts of points of view, and balance them all, presumably “…in the public interest.” But that’s where things get sticky.

Everyone acknowledges that this FCC, and indeed this government and most of the world is focused on the promotion and development of the Internet… or more broadly, broadband. It is seen as constituting the new industrial revolution. Now whether that is a smidgen of an overstatement or not is irrelevant. That’s the focus. And from the point of view of the FCC, that development has to be “open” and “transparent” and not controlled by any entity to the degree that new entrants or innovative new ways of employing the technology are impaired. That’s been the entire argument surrounding “net neutrality.” So, for instance, whether we like it or not (I think, from an economic and consumer perspective, it’s a mistake) “paid priority” whatever that is, has been proscribed. The objective being to keep the Internet “open.” But it’s only the ISPs that are banned from offering enhanced forms of service, like “priority mail.”

As we are now seeing, however, companies far bigger, with far more control and impact on the Internet, like Facebook, are openly touting the fact that they are providing priority, faster delivery of certain, selected content. Facebook has agreements with—and now facilitates “news feeds” of—companies like the New York Times, with faster rendering on anyone’s Facebook page. This is quintessentially “paid priority.” It is one company reaching a commercial agreement with another company to deliver faster, better service over its platform than the same platform delivers other content. And let’s be real: the Facebook or Google platform reach far more folks and have far more impact on “new, innovative” upstart competitors than any ISP. The same thing is true for Apple, Twitter or Instagram, YouTube, etc. The overwhelming dominance of these players dwarfs the impact of the delivery infrastructures. Yet so far, “governance” to protect “openness” has been restricted to the facility providers. Why?

Well, there are lots of reasons, suffice it for now to say it starts with the fact that those who perceive they have governance power over broadband/Internet recognize that at some point their jurisdiction is limited, so they use their power where they can. But is their alleged objective being met? I don’t think so, not by a long shot. If they’re going to be honest, and attempt to “…govern wisely,” it’s time they came out and said so, too. They should be the first ones to raise these other problems that clearly interfere with their claimed “neutrality” objective, not stay silent, exercise their alleged existing power and remain mute about what else would clearly be required to actually achieve it.

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