AT&T’s perversion of ‘free speech’ would let it control the Internet

Poor AT&T. First, we get the official word courtesy of Consumer Reports that Ma Bell is the planet’s worst major wireless carrier. Now we hear the embattled giant is worried its First Amendment rights are about to be violated by those meanies at the Federal Communications Commission.

No, I’m not making this up. AT&T and its ally/rival Verizon are claiming in legal filings with the FCC that regulation of the Internet would deprive them of the right to free speech. Other big quasi-monopolies have used that argument to get what they want; the very same claim years ago by cable TV operators succeeded in allowing Comcast, Time Warner, and all the others to keep an iron lock on programming, says Chris Witteman, a communications attorney in San Francisco.

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Now that the U.S. Supreme Court has decided that corporations do indeed have First Amendment rights to donate money to political causes, the climate has never been better to extend that logic to the Internet.

“Let us be clear: If the cable or telecommunications network owners are allowed to control the entirety of what transpires on ‘their’ networks, that is the end of the Internet as we know it,” writes David C. Bergmann of the National Association of State Utility Consumer Advocates, an advocacy group for ratepayers.

AT&T-style free speech means control over everyone else’s What would the right to AT&T/Verizon-style free speech mean? It means the companies that provide Internet access would be free to choose what content moves on the network at what speeds and for how much money. If your company has an app or a service that competes with one of those giants — too bad. The carriers’ claim of free speech says you have no right to route that app or service through AT&T’s or Verizon’s network. (Never mind your free speech rights, of course.)

Perhaps AT&T will next follow Comcast’s lead and decide to tell you what devices your company can attach to the network. You may find your thin clients, VPN-equipped PCs, VoIP devices, or iPads one day disallowed ostensibly because they cause harm but in reality because their use isn’t to AT&T’s own financial benefit.

The FCC’s knight in shining armor has given up the fight The federal rule maker we thought would stop this kind of nonsense — FCC chairman Julius Genachowski — is playing right into the carriers’ hands. Genachowski has surrendered to the special interests, putting forward a withered version of Net neutrality that will protect almost no one and give the big carriers nearly all of what they want. For that, he’s the Tech’s Bottom Line Bozo of the Month.

I’m not happy to do this. When Genachowski was appointed by President Barack Obama, there was hope he’d fight to rein in the huge corporations that control both the wired and the wireless Internet. He hasn’t done it. After a federal court ruled that the way the FCC was trying to regulate the Internet was out of bounds, he proposed his “third way,” a smart strategy that would have allowed the FCC to regulate the big Internet providers as telecommunications carriers, which is what they are.

But he’s backed off from the third way — way off. While paying lip service to the principle that carriers should not discriminate against different types of content moving over their networks, Genachowski’s proposal has no teeth. He gave hints of what he will propose at the FCC’s meeting on Dec. 21, but not the details.

Washington Post columnist Cecilia Kang described what’s cooking in the backroom:

A source who has seen the draft rules said the FCC would view paid prioritization of content as “a negative thing,” but the agency doesn’t put the burden on a carrier to show that the activity is reasonable. That means the FCC wouldn’t automatically presume violations of Net neutrality when a company like Verizon Communications gives better delivery of online video from partner YouTube than, say, to Netflix or Hulu. On a case-by-case basis, the agency would take up investigations of alleged discrimination and apply its rule on “unreasonable” network management.

The problem with a case-by-case approach is that it doesn’t establish a clear line and so opens the door for years of litigation about every single instance of alleged misconduct by carriers.

Genachowski knows better. In a speech earlier this month, he said, “Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet. The record in the proceeding we’ve run over the past year, as well as history, shows that there are real risks to the Internet’s continued freedom and openness.”

How much clearer could it be? “He’s caving in to pressure,” says attorney Witteman. “Few people realize that AT&T and Comcast filed comments with the FCC saying they have First Amendment rights. And that means they have the right to throttle traffic. It’s similar to what the cable companies have done.”

It would be one thing to tolerate authoritarian behavior by access providers if consumers, both residential and commercial, had lots of choice — but we don’t. In most parts of the country, there are generally only two choices: a cable company and a telephone company.

The FCC also will allow companies to experiment with “special services” like medical services or home security that could be given priority over other traffic. While those exceptions might be reasonable, they could also become a foot in the door for carriers that want to favor their own content over that of the competition.

Mobile users will be completely at the carriers’ stingy mercy I’m sorry to present a laundry list of sins, but there are so many problems with what Genachowski wants to do, and it’s even worse for mobile broadband. The big carriers don’t want the FCC to regulate wireless services, including mobile broadband, and it appears that the proposed rules are filled with loopholes favoring them.

Genachowski says he will allow for flexibility in the application of rules to wireless services but will “address anticompetitive or anticonsumer behavior as appropriate.” Baloney — addressing issues “as appropriate” isn’t close to a serious regulatory posture.

While it’s true that there is competition in the wireless market, the major players all act as if there isn’t — which is why regulation is so badly needed. For example, all the major carriers lock their phones to keep subscribers from bringing them to a new provider, something you don’t find in Europe, and nearly all charge high early termination fees to keep subscribers from jumping ship. Simply put, those are anticompetitive practices. But it looks like the FCC won’t be stopping them, much less focusing on the quality of service, or more aptly, the lack of quality we’ve all experienced.

There you have it. The Internet is in serious danger, and our supposed watchdog is looking more like a lapdog every day. Maybe Genachowski will surprise us and stand up for principle, but I’m not betting on it.

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This article, “AT&T’s perversion of free speech to control the Internet,” was originally published by InfoWorld.com. Read more of Bill Snyder’s Tech’s Bottom Line blog and follow the latest technology business developments at InfoWorld.com.