Monday, June 27, 2005
BRAND-X DECISION: Statement of Center for Creative Voices in Media
Date: Mon, 27 Jun 2005 13:23:21 -0400 (EDT)
From: Jonathan Rintels <jonr@creativevoices.us>
Statement of Jonathan Rintels, Executive Director, Center for Creative Voices in Media, on the Supreme Court's 6-3
decision in the Brand X case holding that cable companies do not have to share access to their lines with competing
Internet Service Providers.
The Supreme Court's decision in Brand X to permit cable companies to discriminate in providing Internet access is a
potentially devastating blow to the wide diversity of viewpoints and voices upon with our democracy and culture
depend. Despite its underwhelming name, today's Supreme Court decision is overwhelmingly significant. It is nothing
less than the opening shot in what promises to be an ongoing war over whether the future Internet will be "open" or
"closed." Will Americans enjoy the freedom to visit any website, as they do today, or will they be restricted to
visiting sites approved by - or in business with - the cable, telephone, or media conglomerate "gatekeeper" that
provides broadband access to the Internet?
Extreme media consolidation and concentration have eliminated many independent voices and visions from much of
America's media. Many creative artists fervently hoped that high speed broadband would empower them to share their
creative visions directly with their audience over the Internet, eliminating the Big Media gatekeeper/distributor.
Today's Supreme Court Brand X decision may have dashed those hopes. Here's why. Cable broadband providers will have
the power to discriminate as to which websites their customers visit. They can demand payment from content creators
for access to their broadband customers. They will have the power to divert their customers to sites they own and
operate, or that pay them "carriage." Or they can simply block customers from accessing programming that competes with
websites or TV networks that they are in business with. And no doubt the FCC will soon extend this power to
discriminate to telephone company DSL broadband services ! as well.
Thus, the implications of Brand X and the ongoing battle over whether the Internet will be "open" or "closed" can
hardly be overstated. As FCC Commissioner Michael J. Copps has observed, "This Internet may be dying. It may be dying
because entrenched interests are positioning themselves to control the Internet's choke-points and they are lobbying
the FCC to aid and abet themÂ… We seem to be buying into a warped vision that open networks should be replaced by
closed networks and that traditional user accessibility can be superseded by a new power to discriminate. Let this
vision prevail and the winners will be entrenched interests with far greater power than they have today to design and
control the Internet of the future."
In its controversial 2003 media ownership proceeding, the FCC majority claimed that, "via the Internet, Americans can
access virtually any information, anywhere, on any topic." Therefore, the Commission majority justified and permitted
ever greater media consolidation and concentration. Fortunately, that decision was reversed by a US Court of Appeals
as "arbitrary and capricious." Whether the Commission majority's claim was valid in 2003 is open to debate. But
today's Brand X decision makes that reasoning history. With the FCC now poised to take up these media ownership rules
again, it must take into account the fact that as a result of today's Brand X decision, one of its primary
justifications for relaxing the prior ownership rules just vanished. Americans may no longer have the freedom or
opportunity to "access virtually any information, anywhere, on any topic" on the Internet.
Today, the Supreme Court helped make the cable and telephone companies' vision of a closed Internet a reality. Most
Americans have no choice for broadband access other than a cable or phone company gatekeeper. Now, their Internet may
bear more resemblance to a "souped-up" cable television system or the early "walled garden" days of America Online,
where customers were limited to AOL content. For many Americans, their only broadband Internet may be the cable
company's walled garden Internet or the phone company's walled garden Internet.
We hope that the FCC and the Congress will seriously examine the harmful implications of this Supreme Court decision
and immediately act to preserve and protect the free, vibrant and open Internet, full of diverse and competing voices,
that has become the lifeblood of America's democracy and culture, as well as an engine of growth for its economy.
Additional information and background on Brand X may be found in our article in the upcoming Journal of the Caucus for
Television Producers, Writers & Directors, which is posted on our website,here.
If you have any questions or comments, please don't hesitate to contact me.
Jonathan Rintels
Center for Creative Voices in Media
www.creativevoices.us
www.creativevoices.typepad.com (blog)
Center for Creative Voices in Media
1220 L Street, N.W., Suite 100-494
Washington, DC 20005
(202) 448-1517 (voice)
(202) 318-9183 (fax)
jonr@creativevoices.us
