A U.S. federal appeals court in Washington, DC has dealt a serious blow to musicians, the music community and others eager to maintain a level online playing field. On Jan. 14, the three-judge panel struck down the Federal Communications Commission’s rules designed to keep the Internet open to free expression, entrepreneurship and innovation. Citing the FCC’s decision in the early 200s to reclassify broadband as an “information service” rather than a more closely regulated “telecommunications service,” the court maintained that the FCC lacks the legal authority to enforce its Open Internet Order that was issued in 2010 and challenged by Verizon.
The Future of Music Coalition, a national nonprofit education, research and advocacy organization that seeks a bright future for creators and listeners, was quick to blast the decision, noting that the FCC’s rules were the only thing keeping Internet Service Providers (ISPs) from picking winners and losers online based on business or other preferences.
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“Musicians and other artists depend on the ability to compete alongside the biggest companies,” notes the FMC in a post on it website. “We know what it’s like when just a few powerful corporations control our access to audiences. That’s why thousands of musicians and independent labels have gone on record in supporting basic rules of the road preserving “net neutrality” via the Rock the Net campaign.”
FMC asks those who might not consider the court’s ruling a big deal for artists to think again.
“Maybe you’re one of those musicians [who] thinks Spotify is a bum deal for artists. Perhaps you like the flexibility afforded to you by Bandcamp. What happens when an ISP decides that Spotify can pay more and blocks or otherwise interferes with your music getting to fans on your preferred platform? What if an ISP charges overages for data on your favorite apps but exempts traffic from their corporate buddies? Musicians have been down this road before. We saw what happened when Clear Channel and their ilk were allowed to gobble up all the mom-and-pop radio stations around the country. To paraphrase Johnny Rotten, without clear rules of the road prohibiting discrimination of lawful content by ISPs, you’re being cheated.
The FCC created this problem when it chose previously to reclassify broadband Internet as an ‘information service’ rather than a ‘telecommunications service.’ This move, upheld in a Supreme Court decision from 2005, put the Commission’s regulatory authority under question. And [this] decision affirms as much,” according to the FMC’s website.
“The court’s decision is disappointing, but not entirely unexpected,” said Casey Rae, FMC’s interim executive director, in a prepared statement. .”FMC has said since the beginning of the last decade that the FCC’s decision to classify broadband Internet as an information service would have poor consequences, and it doesn’t get much worse than the inability to guarantee a level playing field for creators and other innovators.”
However, there is a bright side, according to Rae. “The FCC, under the direction of newly-appointed chairman Tom Wheeler, now has the opportunity to fix a problem of its own making. It has never been more important to have basic rules of the road preventing ISPs from blocking content delivered over the Internet, regardless of how users connect. Thousands of musicians and independent labels are already on record in support of a level online playing field as part of FMC’s Rock the Net campaign. This decision will surely inspire countless other creators and entrepreneurs to make the case for an open and accessible Internet.”
“Of course,” she continues, “Congress could always step up to the plate and write laws ensuring that the Internet remains a place where a great idea, a great song or an amazing innovation has a chance to get off the ground. Until then, the FCC has the obligation to act to protect all Americans—including creators—from the whims of just a few big corporations.”
In a Feb. 17 op-ed in The New York Times, Susan Crawford, a visiting professor at Harvard Law School and the author of Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age, expresses similar sentiments. “[R]ather than despair, this is a moment of opportunity. The court didn’t make its decision because it was opposed to net neutrality, but because the FCC had painted itself into a regulatory corner, having developed a convoluted, contradictory set of rules regarding Internet access over the last decade,” she wrote.
“The decision now forces the commission to go back to square one and reverse the industry-compromised decisions that set it on this path in the first place and that have long undermined its authority over this crucial infrastructure.”
Just a day earlier, a Times editorial, noting that congressional action to prohibit broadband companies from discriminating or blocking content was unlikely given industry opposition, implored the commission to reclassify broadband as a telecommunications service.”
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