The commission's longest-serving member, who opposes the decision to roll back protections, discusses what's at stake
When the Federal Communications Commission voted this month to gut internet neutrality protections, Commissioner Mignon Clyburn did not hold back her outrage. The FCC, in her words, had “pulled its own teeth” in passing what she called the “consumer-harming, corporate-enabling Destroying Internet Freedom Order.”
Clyburn, along with fellow Democratic Commissioner Jessica Rosenworcel, were the two dissenting votes in a party-line, 3-2 decision to roll back 2015 protections against blocked, throttled or prioritized internet access.
First sworn in in 2009, Clyburn is the longest-serving member of the FCC. With this recent vote, she said, the commission had abandoned its pledge to serve the American people. And that if history offers any lessons to the future, consumers – notably people of color and marginalized populations – will likely see greater barriers to internet access in the future.
“When the current protections are abandoned, and the rules that have been officially in place since 2015 are repealed, we will have a Cheshire cat version of net neutrality,” she wrote in her dissenting opinion. “We will be in a world where regulatory substance fades to black, and all that is left is a broadband provider’s toothy grin and those oh so comforting words: we have every incentive to do the right thing. What they will soon have, is every incentive to do their own thing.”
Inexplicably during her interview with Street Roots – just as Clyburn began addressing the critical need for Americans to be able to access the internet, uninterrupted – the landline phone connection went dead: Straight to a dial tone, without any clear culpability on either end. We resumed the call, but it was hard not to sense the harbinger of an unfettered market and the power it now has over our lives.
Joanne Zuhl: Leading up to the vote, you’ve described it as the most difficult week of your career on the FCC. You’ve referenced threats and intimidation, personal attacks, Nazis cheering, russian influences, fake comments. And you’ve noted repeatedly that the majority on the FCC ignored the public at large, and even lawmakers who were calling for a delay of the vote.
This doesn’t sound like garden-variety capitalism at play here. What was going on, and how does it compare to a couple of years ago when you were debating net neutrality in 2015?
Mignon Clyburn: One of the things I have to note is that the emotions are very piqued right now. You’ve got individuals and companies in the debate that seem to be entrenched, extremely emotional and rigid when it comes to their positions. And when you have an atmosphere where there is no room for give or take, you can find yourself in a place of great discomfort. I can think of never in my 19 years of public and regulatory service have I seen as significant display as on this particular item.
I consider that unfortunate, because it often clouds what the merits or demerits of the issue are. Which to me are pretty simple. We were faced with a couple of questions as to whether people like you and me, businesses large and small, should be able to reach the online applications and the services of our choice, without interference. The issue and the question before us were simple: Whether all data, all information that travels over the internet should be treated equally. To me it was a very simple question, and the (commission’s) answer, to me, was one that’s troublesome: That we don’t think that the expert agency in telecommunications should be the referee on the field or a cop on the beat when it comes to protections to what has become an essential service and platform in our lifetimes. That we don’t think protections are necessary for a service or an offering that, in too many places in this country, is a monopoly.
Between 50 and 70 percent, depending on the stats you see, of those of us who wish or do subscribe to high-speed internet at home have only one option. This is not a competitive market for the majority of citizens.
And so for an agency to say it’s going to take itself out of the day-to-day regulatory construct I find problematic. Agencies like the FCC were put into place to be a substitute for competition. We are supposed to be the public’s eyes and ears and protection when competitive forces don’t allow those market regulatory opportunities. We’re supposed to be there protecting. And we’ve taken ourselves out of the game. The fact of the matter is, all of the emotions and all of us being so rigid in the debate really took our focus off of what is important, and whether or not consumers need protection when it comes to this essential service.
You work with communities that more than anybody need the options and opportunities and platforms and finding out about essential services. They often get that from a mobile device – mobile broadband access. If that is not protected or treated the same way – which in 2015 we said it would be, that you deserved to have protection over your mobile device and mobile broadband access as well as fixed or wired access – it will be disadvantaged communities and individuals who don’t have a permanent home, that rely on that mobile device as literally their lifeline to the world. It leaves the most vulnerable even more vulnerable, by treating mobile access differently and not offering the same levels of protections, and treating all of us differently when it comes to punting regulatory protections. When I took my oath of office, that’s not what I signed up for.
J.Z.: The proponents say repealing the net neutrality rules will foster more competition among broadband providers and greater access. Obviously you don’t agree with that position.
M.C.: I do not. I look at the way of the world as it is. Whatever the barriers or the markets, there’s a reason why the majority of us have only one provider for high speed access where we live. There are incentives for those internet services providers, who don’t look the same as they did 10 or 15 years ago.
And remember, internet service providers, particularly the ones who have the majority of the market share, they own and produce content. They have competing or ancillary businesses that may be the same as my business or your business or any person’s who is trying to thrive in this economy. And some of them even own media companies. So they have content, these ancillary businesses, they have these interests that compete with those scrappy startups, those entrepreneurs in the market. And if they are allowed to favor their interest over mine, in terms of access online, and how I’m treated online, they can slow down my traffic. They can cause disruption at interconnection points. If they can slow down, or throttle, and block and charge me a toll for access, that’s problematic, and it’s going to put me as a competitor at a disadvantage. Because I don’t have the economic wherewithal to wait it out. I don’t have the other ancillary business that I can rely on as a source of income to pick up the difference.
It leaves all of us who don’t have a lot of money, who don’t have a lot of resources, don’t have a lot of business friends or interests, more vulnerable.
J.Z.: In protesting this vote, you brought up Ferguson, Mo. It was a powerful reference to events that the nation learned of only through social media because the legacy news outlets were ignoring this. It became a hashtag, and it took off. What do you think then that this decision will have for not just future Fergusons, or future #MeToo movements, but for all marginalized populations and communities of color?
M.C.: That all you have to do, if you are an internet service provider, is to tell me in the fine print, when I sign up for services, that I’m going to block, favor or disfavor or slow down your traffic, and I might not ever get to learn about the next Ferguson or the next #MeToo movement, or the next hashtag. That in and of itself is the risk here. For people who say these internet service providers don’t have any incentive to do that, if “past is prologue” is true, they absolutely do because they have.
Let’s go back to 2005, because that was a significant year. Internet service providers, the FCC and other interested parties knew there were some issues, that there was blocking, that there was preferential treatment. People were complaining that they did not have the same level of access in speed, that the companies were playing favorites. So they came together, and they crafted internet principles or internet freedoms. This was a sort of gentleperson’s agreement saying we’re going to abide by certain rules.
Those rules included that you can use a device of your choice, as long as it’s not harmful to the market. That helped with the competitive forces; I wasn’t tethered to one or two devices. And it said that when it came to content online, the ISP cannot block me, as long as it’s legal content – all of this prefaced on it not being harmful and being legal.
And if those principals that were agreed to in 2005 sound familiar, it’s because they were the basis of what we did in 2015. We just made the agreement the rule. We saw too many exceptions going on in terms of ISPs not abiding by the gentleperson’s agreement. We thought it was significant enough, and there were enough complaints that came to our attention to warrant what we did in 2015.
So for those who say we don’t need it, for those who say that it will stifle investment, I say show me where that has happened. Internet service providers, particularly large ones, have to file with the (U.S. Securities and Exchange Commission) any type of rule or regulation administration that is a barrier to their business interests, a barrier to their earnings or a barrier to them to thrive. I have not seen any of them point to our net neutrality rules, to our open-internet rules, as being negative or being a barrier for them realizing their economic or investment goals.
Secondly, these companies have periodic earnings calls. And those don’t stay secret. I have not seen any reports that pointed to the open-internet rules or net neutrality rules as being problematic. In fact, I can show you that for as many people who say there have been issues or challenges when it comes to investments, I can show you counter examples. Keep in mind, when people talk about investment in companies, it’s not just what they spend. It’s what we spend every month. That is an investment where those companies have an opportunity to grow their balance sheet and do other things. You can’t point at any one particular silo or economic indicator to say whether or not something is stifling or even fueling investment. You have to look at the bigger picture. And the pundits are out there pointing at one quarter or one report, or a couple of companies, and ignoring everything else that is going on, including some of those companies buying up each other and trying to say we’re not investing. No, you might not be investing in infrastructure if you’re buying up your competitors. We need to put it all on the table.
J.Z.: You’ve very publicly emphasized that this is not the final word. So what should people be doing here on out? What’s left to happen to make it final, and where can people get involved?
M.C.: A number of parties, grassroots organizations and, as of last count, at least 18 states have made it clear they’re going to challenge, or sue, the FCC in court. You have small internet service providers and technology companies that have taken issue and made it clear that they might exercise their legal issues.
You as an individual are surrounded by influence and decision-makers – some look like me; some look like your neighbors. You’ve got halls of influences all around you. Individuals can always continue to make their voices heard to those decision-makers, those policymakers, those others who may have the final, final word.
There has been at least one bill, and there will be more bills, no doubt, introduced by Congress. There has been talk of a Congressional Review Act that might be forthcoming. So again, we don’t have the final word, because luckily, when it comes to our system of government, there are a whole host of checks and balances to make sure that none of us veer too far one way or the other. That’s the beauty of this country, and that’s why I remain hopeful.
FURTHER READING: Sen. Ron Wyden: Net neutrality prevents 'information aristocracy' (March 2017 interview)
J.Z.: I have to say, though, that because the decision the FCC made and this past year of decisions, for a lot of people, they don’t have that faith in the system anymore.
M.C.: I understand. You and I can talk all day in terms of how some of your readers and the people you give voice to feel.
But I can think of no one or no community, speaking in general here, that can benefit more from broadband connectivity, telecommunications and technology inclusion than people of color, those who are on the other side of the economic and opportunity divide, and rural communities. It’s a broad brush because numerically, it makes up the bulk of us.
We have to look at the objectives of agencies like ours and what we’re supposed to do. We’re supposed to be there as an influencer, as a backstop for markets and places and things that do not work optimally. If monies are not flowing to communities, and they don’t have the opportunity for broadband infrastructure to be built, we’re supposed to be there, shoring up the gap. If there are disconnects between people in urban communities that need a communication device, because when was the last time you saw a pay phone? Maybe one in the hospital, maybe one on one corner, maybe one in a museum. We’re supposed to be there.
If your school or your library cannot afford connectivity or broadband, we’re supposed to be there bridging the gap. But if we do certain things, not looking at what the needs of the communities are, where the markets are not addressing the needs or have fallen short, then we fall short.
We’ve got an incredible opportunity, the five of us, to bridge the communications, technology and opportunity divide. How we do it, how we approach it based on the needs of the communities who are without, that’s the key to whether or not we’re successful or whether or not we get a failing grade.
I’ll be the first to admit I don’t have a law degree or a Ph.D., but I have a degree in human interests. I have a degree in attempting to do everything I can to close these gaps. I’ve excelled at those. And so this is what we’re challenged with. And those things, I will never allow any partisan interest, personal prejudices or hang-ups to come in the way of serving communities who go without. I will never do that. Never.
J.Z.: So you’ll be staying on the FCC a little longer, then.
M.C.: The answer is an interesting one. My term was up in June, and with appointments like mine, we can technically serve until this particular Congress adjourns, which is December 2018. So I’m here until or unless someone is appointed in my place – or I win the lottery, whichever comes first.
I’m not governed by a date or a term of service. I am wired this way to hopefully do what I can to be a conduit and a bridge to opportunities, regardless of my title or where I work or where I am. I am hard-wired for public service and however long that I am fortunate enough to continue to serve, I will, regardless of where I end up.
Email Executive Editor Joanne Zuhl at joanne@streetroots.org.
