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Public Loses Brand X Case at Supreme Court

Many creative artists and members of the public hoped that the high speed broadband Internet would enable them to link up and share creative works directly over the Internet, eliminating the Big Media gatekeeper/distributor that stifles independent artists access to radio, television, and cable. The Supreme Court's decision in Brand X to permit cable companies to discriminate in providing broadband Internet access dealt those hopes a potentially devastating blow. Despite its underwhelming name, Brand X 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 or telephone "gatekeeper" that provides broadband access to the Internet?

As a result of Brand X, cable broadband providers now 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 independent 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. In other words, not only is the dreaded Big Media gatekeeper back, thanks to Brand X, but now there may be just TWO gatekeepers (cable and telephone company) to the Internet.

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 back in 2003 is open to debate. But the Brand X decision makes that reasoning ancient 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 the Brand X decision, one of its primary justifications for relaxing the prior ownership rules no longer exists. Americans may no longer have the freedom or opportunity to "access virtually any information, anywhere, on any topic" on the Internet.

What's Creative Voices doing about it? At the FCC and on Capitol Hill, we're educating policymakers about the dangers of a closed, proprietary Internet, as is now possible under Brand X. Along with companies like Apple and Yahoo, we're advocating "net neutrality," giving the consumer freedom to surf wherever he/she wants on the net, free from discrimination by the cable or telecom broadband provider. And, we're encouraging policymakers to promote other ways for Americans to receive broadband, so that the U.S. will no longer be mired in 16th place among developed nations in terms of broadband penetration. For example, we want consumers to have the freedom to use unlicensed spectrum to create wireless broadband networks. We want localities, should they so desire, to have the freedom to create their own municipally-owned broadband networks. And, at the FCC, we are asking the Commission to limit the size of cable monopolies and their ability to discriminate on both their cable television systems and their broadband Internet access.