Why both the FCC and the Judge are wrong
A short history of communication and commerce
The recent ruling against the Federal Communucations Commission is grabbing headlines everywhere. Advocates of “net neutrality” — who believe that ensuring that the overall cost of carriage of information stays the same, no matter whether paid by ordinary citizens or giant telecommunications firms, is essential to a functioning democracy — have cried foul. Those who, on the other hand, believe that there ought to be a paid “fast lane” on the information superhighway, hailed the decision as the final blow against an intrustive Federal commission, and a good thing for small and large info-users alike.
But how did we get here? What’s the relationship between information and democracy — or, for that matter, between information and any sort of government? It’s a long history.
Clearly, the ability to communicate through “media” — loosely defined as anything other than face-to-face conversation — has been essential to civilization itself. The Egyptian Pharaohs erected steles to announce their victories in battle and promulgate their laws; cuneiform script was vital for recording everything from business correspondence to the Epic of Gilgamesh; without writing, nothing of the teachings of the Greeks — even Plato’s warning that writing things down would make us worse at remembering them — would have survived. In every empire, roads, canals, rivers, and railways carried not only commerce but information, a role so vital that, in the early days of the American Republic, the Postmaster General was a cabinet-level office, whose first holder was no less a man than Benjamin Franklin.
But what did the mail convey? Information, yes, surely, but also commerce; an envelope could contain not only personal missives and love letters but notes, checks or financial agreements. The “mail,” thus understood, was both commerce and communication, right from the start. It comes as no surprise, then, that some of the earliest, and strongest Federal laws regarding communication were against fraud conducted via the mail — on the one hand — and against violating the privacy of the mails, on the other.
When radio, arguably the first and most revolutionary means of instantaneous and ongoing communication, came into being, it was regarded in much the same light as the mail. Indeed, in many countries, the same government agency that had been concerned with the mail became the authority for radio broadcast and reception. In Britian, to give but one example, the General Post Office or GPO became the governing agency for the earliest broadcasts, not only of radio but television as well; similar arrangements prevailed in Germany and most European countries.
And yet, in the United States, things skewed a little differently. It’s ironic in retrospect that radio, in its pre-commericial days, was governed by the Commerce Department under the terms of the Radio Act of 1912, which remained in force until the creation of the Federal Radio Commission in 1926. Radio, at first, seemed to the American government to be a different kind of entity. It could, like the mail, carry both information and commerce (which was also true of the wired telegraph system before it). And yet, unlike the mail or the telegraph, radio worked by “broadcasting” — a system in which a single, powerful transmitter sent the identical signal to hundred or thousands of receivers in its range. The commercial airwaves, unlike the mail, were also limited; only so many stations could fit in the established radio bandwidth, some of which had to be set aside for the military, and point-to-point radio such as the “citizen’s band” (perhaps the most mail-like of the radio era).
When the FRC became the FCC in 1934, its bailiwick expanded, including early television broadcasts, ship-to-shore radio, shortwave, citizen’s band, and even wired communications (previously the domain of the Interstate Commerce Commission). The issues were, in many ways, similar: how much of our comminication is commerce? How much is even “commercial,” in the loosest sense? And how much, on the other hand, is a vital part of the essential democratic privilege of one person sending, or receiving, information to and from another?
The trouble begins with the false distincion between commerce and communucation. To begin with, if to be able to communicate is worth something, then it’s already a commodity, and to the extent that it’s measurable, the ability to communicate more or faster is worth more. Secondly, the content of communication is rarely pure; if in the course of a personal letter, a writer happens to mention a tourist destination, a brand of luggage, or an airline, who is to say that these aren’t tacit endorsements, even if never intended as such? Google’s Gmail service exploits this very possibility with the targeted ads it places in the margins of its user’s inbox screens. Radio used to be divided into commercial stations — commercial because advertisements from paid sponsors covered their costs — and noncommercial, such as college radio and NPR. And yet, as anyone can attest, an hour of public radio today is jam-packed with mentions of the program’s and the station’s “underwriters.”
The other model, that of a public “utility,” is even more nonsensical. Utilities deliver a only measured commodity — electricity, natural gas, or water — and are decidedly not a means of communication, despite the (now infamous) silliness of tech-challenged Senator Ted Stevens comparing the Internet to a series of “tubes.” What’s changed is that mass communication, which used to be similarly one-way and readily measurable (how much bandwidth can an FM station have without causing interference with nearby broadcasts? How many watts can an AM station transmit at?) is now seemingly non-measurable. I say “seemingly” since of course one can still measure, and speak of, Internet “bandwidth” — but to 90% of its end users, there’s little sense of how much data they’re actually consuming. The fact that even a lengthy e-mail with a family photo attached takes up far less data space than a single second of HD video is not readily apparent.
Of course, to those who built or maintain the Internet’s “backbone,” or who pay the electrical bills of the server farms on which the “cloud” lives, this data space is very readily measurable, and increased capacity means increased cost. These companies, it’s been argued, would only charge more to their heaviest users, such as streaming HD video providers or large vendors of online music sales or streams, not the “little guy” sitting at home in front of a laptop — at least until the little guy gets his cable bill. But what gets lost in this is that the Internet is not a broadcasting system (with a limited number of fixed points of origin, and a potentially unlimited number of free passive receivers), nor is it a utility, with a measurable asset distributed over transmission lines, then metered and billed by volume at every home or business. It’s also not a system in which commerce and communication can possibly be kept separate, and regulated using different rules. There’s no fair or just way to regulate — or regulate the regulators — of this unprecedented, personal/private, communicative/commercial hodge-podge of decentralized flows.
The only real precursor of the Internet, when you get down to it, is the mail. And the mail was recognized as a unique resource, deserving of unique protections against fraudulent use, and worthy of something no other medium required: direct government sponsorship of its physical plant, along with legal safeguarding of its affordable, private access. Sure, the mail could be used for commerce — but it wasn’t essentially commercial or non-commercial—it was public. I’m sure that, in the age where the NSA has been (rightly) criticized for overreaching and invading privacy, and any public good organized in any way by the government brings cries of “socialism,” it wouldn’t (at first) be a popular idea. But I believe that the Internet is a unique resource, much too important to be in private hands. I’d propose that a cabinet-level office be established to regulate it, protect privacy, and ensure that it’s permanently open and affordable to all. You could call it the Post Office, if you like.
