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THE PARADOXES OF NETWORK NEUTRALITIES

by

Russell Arthur Newman

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements of the Degree
DOCTOR OF PHILOSOPHY
(COMMUNICATION)

December 2013

Copyright 2013 Russell Arthur Newman
ii
Acknowledgements

This dissertation emerged from and was only possible thanks to a longstanding
relationship I have had with the national nonprofit advocacy organization Free Press. I want to
thank my longtime colleagues with whom I had the privilege of working, even as many of them
have moved on to other pastures: Josh Silver, Craig Aaron, Ben Scott, Ben Byrne, Yolanda
Hippensteele, Kimberley Longey, Kate McKenney, Stevie Converse, Tim Karr, Candace
Clement, Mary Alice Crim, Amy Martyn, S. Derek Turner, and Jordan Carduner. Others, who
have joined the organization since I left for USC, welcomed me as if I never left on the numerous
occasions I had the pleasure of joining them at such venues as subsequent National Conferences
for Media Reform. In particular, I thank Robert McChesney and John Nichols, who started as
intellectual inspirations before giving me an opportunity to work full-time on these issues we all
cared about. McChesney was willing to take a chance on a near-complete unknown when he
invited me to co-edit a book with him and Ben Scott. I can only hope that this dissertation begins
to live up to his standards; his voice was in the back of my head the entire time I worked on it.
Hannah Sassaman, who I met when she was an organizing powerhouse at the Prometheus Radio
Project, was an early significant influence, as was Lauren-Glenn Davitian. Thanks are also due to
a number of people from my year spent as part of Suffolk University: Barbara Zheutlin, Jody
Santos, Rick Gregg, and Bill Mosher all inspired me to take the path I have.
I thank my dissertation committee: my co-chairs Larry Gross and Manuel Castells, Sarah
Banet-Weiser, Ernest Wilson III, Jonathan Aronson, and Paul Adler. Their very productive and
positive input into the final product forced me to think very hard about where this work ‘fit’ into
the broader scheme of the field (and beyond), and it is the better for it. Larry Gross, in particular,
was always a source of both support and opportunities too numerous to name. Sarah Banet-
Weiser was willing to make time in her increasingly busy schedule to work through numerous
iii
issues. I owe her a tremendous debt. Paul Adler was a willing participant in a madhouse
independent study I proposed; he suggested bringing others aboard and turned it into one of the
best experiences I had while at USC. Outside my committee proper, Herman Gray turned my
entire world upside down in two courses flat. I am fortunate to have caught him during the year
he spent at USC. G. Thomas Goodnight affected my thinking more than he knows.
The various members of the FCC who granted me time to ask them sometimes naïve
questions were incredibly gracious. The Washington public interest community writ large was
also very generous with their time; I thank in particular Mark Cooper and Harold Feld. These
folks are unsung heroes. My old undergraduate colleague Jeremy Warren was generous enough to
give a long out-of-touch friend on a relatively modest stipend access to his Dupont Circle
apartment for the fall of 2010 as I commenced the frustrating early stages of this project. Victor
Pickard and Sascha Meinrath were always grounding forces. I’m lucky to count them as friends.
My parents, Robert and Anna Marie Newman, were stalwart bastions of support
throughout. My sister, Gweneth Newman-Leigh, provided distant encouragement from across the
ocean in Australia. Debbie Hedgecock provided exactly the kind of wisdom I needed when I
needed it. Hands down, however, this would have been impossible without the backing and help
of my longtime partner, Mary-Frances Cusick. She was a vital source of inspiration throughout,
both directly and indirectly sparking numerous epiphanies that influenced my overall argument.
She less kept me sane than provided channels for the madness. Thank you so much.

iv

Table of Contents
Acknowledgements ii

Abstract vi

Introduction 1

Network neutrality, the quandary 8

Where network neutrality loses itself 17

Locating erasures 29

Method and chapter breakdown 33

Chapter 1: Toward a New Framework 42

Common questions 47

Presence in absentia 56

New background 59

Knowledge, and its material buttress 65

The use of economic theory 77

A return to Wu 81

Chapter 2: Portland as Neoliberalism’s Mirror 84

Considering a break 87

Casus belli 99

Washington, D.C. public interest groups make the connections 106

The wildfire spreads 115

Assemblage articulated 117

Chapter 3: Knowing the Net (1) - Apex 122

Finding a space between capitals: constructing a conceptual frame 125

Flesh on ‘open access’ bones 130

Expanding their purview 141

AT&T sets its sights on MediaOne 145

Consumer advocates on the move 151

The FCC attempts to thwart local efforts and consumer arguments 156

Apex 164

Chapter 4: Knowing the Net (2) - Nadir 166

From vague directive to the core 172

AOL buys a wire of its own 180

You’ve got the petulant, angry Andy Schwartzman here today, I’m afraid 187

Wearing down, ramping up 196

Localities lose the issue 199

A double-edged sword: the Ninth Circuit decides 203

AOL-Time Warner as ambiguous consolation prize 208

Conclusion 218

Chapter 5: Erasure 224

Media reform and broadband 228

Farrell and Weiser set the tone 233

Wu sketches out net neutrality 238

v
Stepping into the trap 244

Brandeisian populism and economic efficiency 249

Blowing down the door Wu kept ajar 253

Two sides, one coin 261

Conclusion 265

Chapter 6: Aftermath – Toward a New Problematic 270

Advocacy responds 271

Conclusion 284

Appendix: Necessary evils 291

Understanding networking technologies 291

The policy prelude to our tale 299

References 314

vi
Abstract

Perhaps the preeminent communications policy debate of the first decade of the 21
st

century was, and continues to be, network neutrality. Few issues are more basic to those
concerned about information exclusion and censorship on numerous levels. To be sure, from
numerous public-interest advocates’ perspectives, the Federal Communications Commission’s
final “Open Internet” proceeding of late 2010 was a particularly frustrating affair. The FCC’s
rules stand in contrast to the efforts of other nations in this arena. Noncommittal in their
commitments, disappointing in their outcome, declaring the agency’s weak commitment to “one
Internet” while carving it into wired and wireless segments with different rules applied to each
with loopholes yet to be explored. All of this was buttressed by logic almost surely soon to be
struck down in court; AT&T’s recent petition calling for a rulemaking proceeding to release it of
the remaining vestiges of consumer protections, interconnection requirements, and beyond is the
natural end of the last decade of activity at the FCC.
An examination of the development of the network neutrality debate in the early aughts is
revealing of the manner in which neoliberalism renews and reconstitutes itself. Much of the work
that exists on network neutrality tends to begin its analysis in the latter half of the first decade of
the twenty-first century; this, unfortunately, commences much too late to capture the real cultural
labor performed by the debate. By linking the epistemological foundation of the network
neutrality debate to recent archival work surrounding the construction of the neoliberal project
itself, this dissertation presents historically based and participant-observatory research that
highlights several paradoxes surrounding mobilization around this issue. The neoliberal project
was not a merely pro-corporate initiative: what the benefactors of that movement obtained for
their funds was a set of theory which called for the all-encompassing system, capital included, to
be transformed. Even as movements in support of network neutrality appeared counterhegemonic
vii
to the dominant logics of neoliberal capitalism in a networked, financialized environment, they
were largely moving the process along, since the broader formation was never at issue. It served
the needs of a newly-revved-up commercial Web beautifully in an historical irony. The
emergence of the concept of network neutrality in its original formulation by Tim Wu was less a
weapon than a shoehorn for broader developments long operative barely below the surface. At
the same time, advocates could not approach the problem any differently than they did once the
issue was redefined as it was. They did what was necessary to gain entrance to those places where
the ontic content of their arguments could be set aside and real bargaining could commence;
theirs were no reactionary moves. They were moves that made perfect systemic sense in their
ambivalence: they explored the possibilities of turning neoliberal logics back on themselves
which stemmed from their own contradictions while realizing the limits of this as a strategy,
something of great relevance to those who continue to fight these fights today. The network
neutrality debate revealed the shortcomings—if not the limits—of particular forms of activism.
Theories of regulation and stories which limit their tale of network neutrality to the last half of the
aughts mistake the function of the debate for the debate itself: that is, they miss what
undercurrents were in play at propelling this debate forward in a seemingly inexorable direction.
Network neutrality, as an issue and as a discourse that presented players no options but
the ones they took—channeled as they were into an arena with limited tools—stemmed from and
depended wholesale upon an erasure of those things which threatened the platform itself; this
finished, the game was largely over before it even began. The fights play out in a form of
‘dynamic stasis’ at one level featuring seeming constant action of seeming consequence—the
play of which ignores the ground moving beneath everyone’s collective feet via other currents
entirely. This presents a fight beyond the bounds of open and closed: a much bigger problematic
viii
is at stake, a class struggle of a unique variety. It is a perfect example of how debates themselves
find themselves ‘channeled’ aboard socially and epistemologically constructed platforms.

1
Introduction

“Regulators do not really care about theory but about outcomes, along the lines
determined by the political system. ...[P]rices are the tool; economic theorists
merely provide the rationale.”
—Eli Noam (from Interconnecting the Network of Networks)

“As in judo, the best answer to an adversary maneuver is not to retreat, but to go
along with it, turning it into ones own advantage, as a resting point for the next
phase.”
—Michel Foucault (as quoted by Jean Baudrillard in Forget Foucault)

“The current Administration has been frozen in the past. It has conducted no
auction of spectrum, has offered no incentives for investment, and, through the
FCC’s net neutrality rule, is trying to micromanage telecom as if it were a
railroad network.”
—2012 Republican Party platform statement

As Barack Obama won his second presidential term in November 2012, the post-mortems
of the past four years of activity at the Federal Communications Commission were being written.
All struck polite tones of triumphalism or melancholy, save one. Craig Aaron, leader of the
advocacy group Free Press, wrote for the Huffington Post, “Here’s the truth: Genachowski may
pride himself on playing the ‘compromiser in chief,’ but his tenure has been a series of major
disappointments for those expecting real change. …[Other publications portray] Genachowski as
a card shark at the poker table, but his strategy at the FCC has been to fold, fold, fold anytime
industry comes calling.” Aaron mercilessly branded the soon-outgoing Chairman a “serial
2
capitulator.” He excoriated Genachowski for not taking on the quandary of “meaningful
competition” in broadband; in particular, for failure in “mov[ing] a three-year-old proposed rule
to collect accurate data about the broadband market,” since “You can’t fix what you don’t
measure.” But worst of all:

Genachowski missed the opportunity to reverse failed Bush administration
policies and ‘reclassify’ broadband under the Telecommunications Act. Doing so
would have ensured the FCC's authority to protect consumers from corporate
malfeasance. But once again, Genachowski bowed to industry pressure—and did
nothing. …This failure to act leaves FCC lawyers with a weak hand as they now
try to defend the agency’s Net Neutrality rules before a hostile D.C. Circuit Court
of Appeals. Those rules are so watered down that even AT&T endorsed them,
but Verizon still sued to have them overturned (Aaron, 2012).

Craig Aaron’s attack on the Chairman reflected a genuine frustration with the conduct of
this particular FCC in the latter half of the first decade of the twenty-first century, at a time when,
much like in the late 1990s, advocates for progressive-style reforms believed that they might just
have an ally leading the agency. For the second time in just under a decade, when it came to the
large decisions regarding the next emergent dominant medium of our time, they would be wrong.
To be sure, from numerous public-interest advocates’ perspectives, the FCC’s “Open Internet”
proceeding was particularly frustrating. Other countries, like Australia, have investigated a
national network to address deployment issues, a network that will follow ‘open access’ policies
of the ilk the United States once incompletely attempted, then discarded. The FCC’s rules stood
in contrast, noncommittal in its commitments, disappointing in their outcome, declaring the
agency’s dedication to “one Internet” while carving it into wired and wireless segments with
different rules applied to each with loopholes yet to be explored. These rules hewed to the desires
of the largest telecommunications and cable operators. Over wireline connections, operators
would be prohibited from outright blocking content and applications. They would similarly be
3
disallowed from performing ‘unreasonable discrimination’ with the exception of an experimental
category of ‘specialized services’—if with some caveats that this should not be a hedge to
sneakily use this category as a loophole to discriminate. Finally, they would be required to
disclose their policies when it came to prioritization. Each of these provisions, advocates
declared, held too many loopholes; there were no real standards set regarding what such
‘transparency’ would look like; worst of all, pay-for-priority deals were not expressly disallowed.
Wireless providers were treated with an even softer glove: to these networks only the no-blocking
and transparency rules applied. Despite AT&T’s approval of these rules, Verizon would
ultimately sue the agency to loosen them further still. All of this was buttressed by logic almost
surely to be struck down by the courts.
These rules were formulated uneasily aboard currents already transforming the purpose to
which our new networks would be put: financial and business interests wanted inexpensive access
to communication and coordination while other increasingly powerful interests aboard these
networks sought greater access to information about collective lived experience online and off to
assist the broader sales effort as it was continuing its own metamorphosis (Baran & Sweezy,
1966; R. W. McChesney, et al., 2009). The concerns of the likes of Dan Schiller (2007)
concerning the ‘hollowing out’ of public telecommunications infrastructure in favor of the
shifting needs of capital remain lucidly on display. AT&T’s (2012) late 2012 filing calling for a
rulemaking to release it of the remaining vestiges of consumer protections, interconnection
requirements, and beyond is the natural end of the last decade of activity at the FCC.
The Open Internet debates were only the latest iteration of a long debate regarding
common carriage aboard telecommunications and cable infrastructure. In its most recent iteration,
shortly after the passage of the Telecommunications Act of 1996, a series of struggles would
commence under the eventual mantle of “open access.” The primary question of this debate was:
4
should owners of emergent broadband networks be required to offer common carriage to
unaffiliated Internet service providers over their infrastructure? “Network neutrality” emerged as
this first debate was being decided by FCC Chairmen William Kennard and his successor,
Michael Powell; it coincided with and buttressed the first. The core question of network neutrality
was: what, if any, steps should be taken to ensure that end-users have full control over their use of
the Internet, and to what extent (and to what ends) can Internet providers manage their networks
in such a setting? Ironically, Michael Powell’s brash actions to attempt to squelch open access
(and, shortly thereafter, to loosen traditional media ownership rules in an equally bold move)
would foment massive public dissent in an arena that ordinarily remained, for regulators and
industry players alike, blissfully behind closed doors. Or so it seemed.
Tim Wu, who gave the concept its name, would later argue that regarding the debate
surrounding “blocking and discrimination” aboard the Internet, “it cannot be said that public
debate was wanting” (Tim Wu, 2011a, p. 1852). This dissertation is a counterpoint to Wu’s
assertion. Ferocious exchanges churned; millions of dollars were spent on such “debates;” the
issue found its way into places where media policy discussions rarely tread, such as into
mainstream venues as The Daily Show with Jon Stewart, into user-created videos on YouTube,
and beyond. The tepid response of the FCC to these initiatives quite reasonably leads to the
natural question, “Who or what controls the FCC?” or “How effective were advocates in
achieving their aims, and how?” The issue is posed quite often in terms of a battle between ‘open’
versus ‘closed’ architectures, corporate players versus the people; posed in Wu’s The Master
Switch (2011b) as ‘The Cycle,’ the emergence of nascent new open technologies and their
eventual closure is taken to be the dominant trope of communications history in the U.S. writ
large.
5
While these questions are important and necessary (if not inevitable), I argue here that
these effectively erase some of the most important questions we should be asking, that they
commence their queries too late, and that once the queries begin they take root in the wrong
realms. The activities and decisions of activists who are struggling with these questions are
integrally tied to the broader developments of neoliberal capitalism today; the social history of the
network neutrality debate as an argument, taken as the object of analysis in its unicity provides a
key to its development. The significance is less the debate itself (although I was an actor in it)
than what it, as a whole, tells us about acting and activism in today’s neoliberal environment. This
dissertation seeks to provide a unique, bottom-up window to its constitution and its continued
reconstitution; it is a study of a moment of transformation of debate—from open access to
network neutrality proper—which reveals much more than a shift in rhetorical and political
strategy. It is an angle missed by what has become a rote story of neoliberalism itself, taken for
granted: not an untrue one, but one which is in need of fresh narratives. The shift had effects both
material and immaterial as massive resources were expended to argue on transformed terrain—
terrain which, it turns out, was hardly new at all. The ground was long prepared and came ready-
stocked with all the implements necessary to both facilitate and contain those who would tread
upon it.
The true task of one seeking to explain the successes—or, really, the lack thereof—of this
next generation of media reformers in the early aughts is in creating a record of the material and
epistemological platforms aboard which activism on all sides operated. Stories told of the
network neutrality debate tend to begin either in 2002 (when the FCC originally declared cable
wires ‘closed’ to competition, unlike telephone wires) or 2005 (when the challenge to this order
was defeated in the Supreme Court in a case shorthanded as Brand X). The intense activity of the
second half of the first decade of the early 2000s is, in my interpretation, a costly ruse: it is a
6
perfect example of how debates themselves find themselves ‘channeled’ aboard socially and
epistemologically constructed platforms. “Platforms” are perhaps themselves the dominant trope
of our time—seemingly each day a new business to facilitate other businesses is proposed—the
reason network neutrality has gained its deserved pride of place in the long march of media
reform efforts in the United States and, increasingly, globally. The shift in debate aboard and
regarding the Internet illustrates one such venue to witness such channeling in action, that is,
channeling at a systemic level. In the process, I seek to turn the usual literature on neoliberalism
on its head, not to supplant it but to add another perspective to it. Here is an opportunity to
observe the discursive yet material dimensions of it from the point of view of activists seeking to
address its worst harms. In doing so, mine seeks to reveal a new problematic against which they
will need to struggle. Network neutrality, as an issue and as a discourse that presented players no
options but the ones they took—channeled as they were into an arena with limited tools—
stemmed from and depended wholesale upon an erasure of those things which threatened the
platform itself; this finished, the game was over before it even began. The fights play out in an
ironic ‘dynamic stasis’ at one level featuring seeming constant action of seeming consequence—
the play of which ignores the ground moving beneath everyone’s collective feet via other currents
entirely. This presents a fight beyond the bounds of open and closed: a much bigger problematic
is at stake: a class struggle of a unique variety.
My own stance on this fight was hardly as a detached observer. I supported the institution
of strong network neutrality rules and was as disappointed as Aaron was at the FCC’s final
decision. For better or for worse, this dissertation is personal: my own belief is that it is for the
former. I was one of the original staff members of Free Press, a national nonprofit organization
started by Robert McChesney, John Nichols, and Josh Silver to push back against efforts of the
Federal Communications Commission to loosen media ownership rules; the organization would
7
expand its purview into broadband and telecommunications policy before long. This organization,
inarguably, spearheaded the drive to bring network neutrality to public consciousness. I was part
of a new wing of what is rightly construed as a long-standing media reform movement, decades
old, built on the shoulders of civil rights activists—a history of which has finally been compiled
in one volume inviting numerous more by González and Torres (2011)—but informed by the
writings of critics as Herb Schiller, Ben Bagdikian, Robert McChesney, Noam Chomsky, and
countless others who called attention to the particularities of corporate structures of commercial
media and their pernicious effects on journalism, democratic access to media, just representation,
and access to information. I also spent time as a COMPASS Telecommunications Fellow in
Senator Richard Durbin’s office for a number of months in 2007. What I observed there was quite
striking, having spent years working with community groups and activists outside Washington:
the arguments in play inside this office and outside were completely different. This went beyond
points of rhetoric; they were substantively and semantically at odds, with entirely different
understandings of the implications of one policy prerogative over another. Input from constituents
had little to no bearing on technical aspects of policy decisions. Public input on
telecommunications policy was worse than useless to the staffers I worked with unless it came
from a legitimated, established interest, and even then, not always. I watched the office capitulate
to the desires of Sam Zell as he sought to take over the Tribune Company, to disastrous (yet
predictable) results now long felt. I saw, even conducted, the seeking-out of pubic input on
broadband policies—which was a terrific illusion of some new paradigm flying under the banner
of “Legislation 2.0” for which the office gained much credit, while the real action happened
elsewhere. As part of this I saw displays of outright cowardice on the network neutrality issue
itself under the guise of the purported complicatedness of it.
8
Worst of all, activists are mistaken if they believe that arguing the issue in its own terms
will eventually win the day. The reasons for this go beyond the corruption of individual actors or
‘bought’ government officials: such explanations are clean but too easy, albeit without a doubt
part of the problem. The timidity I witnessed in Congress was assuredly an effort to avoid stirring
up a powerful hornet’s nest, but there was more in play on which I couldn’t put my finger at the
time. A much deeper understanding of the neoliberal drive and how it reconstitutes itself in
political action is required to address it properly. I commence my own humble effort at it with
this dissertation.
In this introduction, I seek to do three things. First, I offer an overview of present
understandings of the network neutrality issue and the illusion these understandings portend. I
similarly seek to explain why I see theories of regulation itself unavailing for understanding the
present conjuncture. I outline efforts that have attempted to view these debates discursively and
show how these are similarly unavailing, themselves more instances of the dominant tropes of our
time than revealing of them. I briefly address the current vogue, sparked by frustration in this and
other issues, of a resurgence in capture theories, of a belief that returning strictly to money in
politics angles will enable democratic debate to recommence in a more just register. Finally, I
proceed to my own sets of research questions and methods utilized throughout the dissertation to
answer them, closing with an outline of the work.

Network neutrality, the quandary

One seeking to gain a grasp of the issue of network neutrality is easily misled by the
literature: it is immense, providing the illusion of a gross uptick in knowledge generated about
broadband communications technologies and the economics of networking. On its face, for all of
9
its enormity, it largely accomplishes a small number of tasks. For one, some efforts seek to take
Wu’s initial concept—expressed in his “Network neutrality, broadband discrimination” (2003)—
and nuance it or complicate it. For another, others sought to evaluate its necessity in law from
either a technological standpoint (was the Internet ever really neutral?) or an economic one (what
option would render greatest total welfare and minimal deadweight loss? Is the unpredictability of
emerging pricing models sufficient to render any decision on the issue premature?).
Meinrath and Pickard (2008), both advocates (and partisans) in support of network
neutrality, identified at the time of their writing three “waves” of scholarship on the issue. The
first surrounds Wu’s initial offering “where he forwarded the idea that network architectures
should be neutral purveyors of data” (p. 14). This is an overgeneralization of what Wu was
proposing in many ways and not really the whole truth, but this is beside the point at present.
Until the Supreme Court’s 2005 Brand X decision, “the debate simmered among a relatively
small group of commentators,” dominated by the technologists and the economists. Thierer
(2005), of the Progress and Freedom Foundation (a close ally of large telecommunications and
cable interests), argued that in lieu of mandating a particular manner in which broadband wires
should operate, numerous varieties of networks should be permitted to evolve; policymakers, he
argued, should be ‘agnostic’ in regards to a preference for ‘smart’ versus ‘dumb’ networks. Yoo
(2004) buttressed Thierer’s sketch with theoretical and analytical heft, supportive of a “network
diversity” policy that would foment myriad, diverse networks which would be allowed to
differentiate their services. Network neutrality would effectively inhibit such activity; it would
even, he argues, go as far as stifling new content aboard the Internet, by his reasoning, since new
upstarts would require some form of purchasable differentiation to compete with established
players in all likelihood.
10
With Brand X issued by the Supreme Court, a ‘second wave’ emerged with new urgency.
Yoo intensified and doubled-down on his arguments (2005, 2006) and was joined by Sidak
(2006), who would provide a detailed application of welfare maximization theory to the debate.
McTaggert (2006), then senior regulatory counsel for Canadian telecommunications giant
TELUS, presented a pointed interrogation as to whether the Net was ever really “neutral.” Noting
the various efforts to evolve the operation of IP networks, the Net had, in his view, inexorably
moved away from “neutrality” for years toward “diversity”:

As time goes on, a legislative or regulatory net neutrality rule continues to grow
more incongruous with the reality of the Internet and the interests of mainstream
Internet users. …Let’s let the user-driven innovation of the Internet continue, and
not try to pre-judge what kinds of data service offerings consumers will find
attractive in the future. If changes to the way the Internet works are not
anticompetitive and are not rejected by consumers in the marketplace, they
should be presumed to be responsive to market demand, whether such changes
diverge from the Internet’s classical architecture or not (McTaggert, 2006, p. 31).

The eagerness for ‘compromise’ and nuance in the debate, despite the stakes, was evident
at this time; Noam (2006), for instance, suggested a “Third Way” for network neutrality limited
to last-mile providers in an editorial, making distinctions between last mile facilities and the
middle- and long-haul networks with differing rules for each.
When communications scholarship did get involved, they were “remarkably cautious
given the stakes involved” (Meinrath & Pickard, 2008, p. 14), often responding to advocates for
network neutrality in asking them to ‘nuance’ their views; Sandvig (2007) is a prime example of
this from within the field. Free Press, in consort with others under the umbrella of
SaveTheInternet.com, found terrific success mobilizing the public in support of the concept at
this time; new fuel was added as Wu greeted the emergence of the iPhone, at this time only
available on the AT&T network, with a well-timed conception of “wireless Carterfone” (2007),
11
noting the myriad ways that cellular telephony operators locked down end-user equipment as
their phones. (The irony was that as activists tied such control to network neutrality as an issue,
they inadvertently muddied the issue—ironically to make it more tractable to the broader
public—by equating network neutrality with end-user attachment problems.) That the
communications academy was increasingly paying attention was illustrated by the newly-
launched International Journal of Communication offering its own collection of articles
reflecting what it considered the key arguments in the debate. Several sought to define or redefine
what the debate was about (Faulhaber, 2007; Frieden, 2007; Jordan, 2007; Peha, 2007; Peha, et
al., 2007); technologists returned, with similar arguments to those who would argue that the
Internet was never truly neutral (Hahn & Litan, 2007). In seeking both clarify and nuance the
issue, Clark (2007) argues that “the debate about network neutrality is a proxy for a debate about
the collision of different models, all valid in their own sectors - the open nature of the Internet,
and the tied content-conduit model of the entertainment industry” (p. 703). Clark ties the new
debates to the abandonment of open access policies:

[O]ne could speculate that the reason for [the emergence of network neutrality
debates worldwide] is that we have abandoned the idea of increasing competition
through facilities unbundling, and see (to some extent) the outcome of that
decision, whereas other parts of the world are following the path of encouraging
competition at the retail level through unbundling, and are thus hoping that the
issues of market power at the retail level will be less pronounced (Clark, 2007, p.
704).

He explores various ways in which discrimination can occur—featuring often-asked
questions regarding ‘quality of service’ offerings (would neutrality requirements render these
illegal?), the defense of old business models (is it good or bad that providers of video content
operate a 'separate' network alongside a 'public' internet within their systems?), he notes the
12
complexities of interconnection agreements and caching, the challenge of (and challenges to) flat-
rate consumer pricing. To would-be advocates of the concept, he argues that they needed to
recognize the ‘complexity’ of the debate. Such calls were enjoined by the likes of Peha (2007)
who called, much like Wu did in his original paper, for ways to discern beneficial and harmful
discrimination, seeking a similarly nuanced view of the issue. Lehr (2007) spoke to a possible
‘arms race’ surrounding ‘resource bypass’ of users trying to skirt discriminatory activity, which
might ironically load networks further, wrecking attempts to ‘manage traffic flow’. “It is
disingenuous of operators to state that giving priority to some traffic has no effect on the
remaining traffic” (Lehr, et al., 2007, p. 627). Rather, “It seems more likely to hope that access
competition will emerge to make the risk of adverse discrimination less likely than to hope that
such large-scale end-user bypass will become generally available” (pp. 637-638).
Numerous frameworks for some network neutrality regime emerged. ‘Third way’
propositions, such as that of Atkinson and Weiser (2006), insisted that the debate was being
focused on the “wrong issues,” and needed to focus instead on ‘nuanced, balanced policy’ since
the arguments of both advocates and commercial operators appeared valid. Jordan (2007)
suggested a framework for neutrality that sought to “prevent oligopoly rents” while allowing for
network management. Numerous frameworks involved no frameworks at all: Bauer (2007)
examines several models (absence of network neutrality rules, some non-discrimination rules, and
‘full regulation’) and determines that the situation was still too fluid to sketch out specific rules; a
policy of monitoring for abuse is proposed. Similarly, ex-Chief Economist of the Federal
Communications Commission Gerald Faulhaber, long involved in telecommunications policy
minutiae, relied on a policy of wait-and-see due to the complexity of new pricing structures
wrought by double-sided markets (2007). While allowing for problems stemming from vertical
foreclosure, in the end, economic theory “cannot even predict the direction of payments, much
13
less the size of payments, which may evolve in this market. Price recognition of the two-
sidedness of the broadband ISP is not ‘double dipping;’ it is simply one of the many ways in
which two-sided markets can price” (Faulhaber, 2007, p. 690). He places the blame for the state
of affairs and the policy debate itself squarely on the pricing structure of the industry: new
rhetorical features as ‘bandwidth hogs’ were not being charged for their inordinate use of
networks, for instance. (The existence of said ‘bandwidth hogs’ was not something empirically
proven at this time, even as it provided a useful fudge for dominant broadband interests.)
It is curious to note how advocates’ calls for network neutrality were systematically
misconstrued, particularly the calls of those outside of Washington. Faulhaber seems convinced
that they saw caching services as problematic (2007, p. 689). Caching services were never at
issue: what was always at issue was the ability of the last-mile providers to usurp choice of
content and applications from end-users. Neutrality advocates similarly had never made any
claim that the Net, from end-to-end, was neutral every step of the way (and neither did Wu in his
original article on the subject). While advocates for network neutrality firmly supported the
concept of users having the ultimate choice in what they would and would not access, boiling it
down to “the net was never neutral” served nonetheless as a useful foil. Even Clark, a significant
figure in the development of the Internet, misconstrues the argument: diving deep into the innards
of communications networks, he notes that interconnection arrangements amongst ISPs
themselves are quite opaque. ISPs “may offer reduced costs for transit based on other business
conditions that apply. Some ISP may try to charge for the privilege of peering. So there is a good
deal of discrimination that can be found in today's practice of interconnection” (Clark, 2007, p.
706). Crowcroft (2007) similarly rehearses arguments about the basic non-neutrality of the Net
(capacity as a function of round-trip time and packet loss probabilities; differing routes of return
due to the business relationships of ISPs, caches nearer to certain users of certain content), all of
14
which miss the point. However, when he argues that the Internet should not been seen as a
‘special’ service but increasingly as a utility, advocates would agree, similarly with the notions
that “infrastructure and bundles are incommensurable; [and that] the timescales for regulation
may often be wrong (both too short and too long), and need constant revision, possibly requiring
smart regulated markets rather than fixed franchises” (p. 570). However, his lens on the issue
blocks what was really at stake; his ‘solution’ involves, much like the “third-way” alternatives,
multiple-part definitions for network neutrality with their designs yet to be determined:
‘connectivity neutrality’ (end-to-end service at all layers); ‘performance neutrality’ (defined rules
in a measurable, comprehensible, transparent fashion); or ‘service neutrality’ (availability of new
services that allow them to retain their differences from each other “such as multi-home,
multicast, mobility, etc. in a way that allows cross-provider/cross-platform differences to exist
until these services have sufficiently matured”, p. 579). He sums,

The Internet’s evolution has thrived on differences that through one lens may
appear as non-neutral treatment while through another may appear as vigorous
and healthy competition. Regulators who seek to impose a rigid or static
definition of net neutrality would be well advised to heed the lessons of Internet
history and the examples cited herein....In conclusion then: We never had net
neutrality in the past, and I do not believe we should engineer for it in the future
(Crowcroft, 2007, p. 579).

All the while, he misses that what was at stake was not an engineering issue but one of
concerns over the increasing power of broadband players, of free speech and the ability to
assemble over emergent technologies, of implications for the ability to do so given structural
forces in play. It is true, as Peha (and others) argued, that policy would need to drill into details
beyond these prerogatives. All the same, network neutrality was but one means to a broader end,
necessary but not sufficient to achieve such aims. To reduce the issue of neutrality to theoretical
15
welfare calculations or technicalities served to bury these concerns. Yet misconceptions seemed
to march forward long of their own accord: when former FCC Chairman Reed Hundt spoke to a
group of scholars at the University of Southern California in early 2010, he asked the assembled
audience whether network neutrality proposals should apply to services online too, something
advocates had never broached; the issue had always been about network providers themselves
(Hundt, 2010).
There certainly were alternative arguments to the welfare-and-utility calculators and net-
was-never-neutral technologists. Van Schewick’s early entry into the debate (Barbara van
Schewick, 2007) offered a counter to the narratives of the economists (and legal scholars utilizing
economic theory) as Sidak and Yoo. Communications scholarship from the field proper, looking
largely through the lens of democratic theory and innovation, supported the concept as well, even
if these were expressed in the domain of the law journals (Herman, 2006; Meinrath & Pickard,
2008). By 2008, Pickard and Meinrath (2008) note a ‘third wave’ of debate commencing, “one
that places net neutrality positions in a state of uncertainty” (p. 14). That is, scholarship had
become “less complacent toward the loss of net neutrality” as they wrote; they submitted that
“now is precisely the moment that we should be aiming beyond mandated net neutrality for more
encompassing safeguards to ensure an open Internet.” It is also notable that this literature was
bifurcating strongly along the lines of not just analysis, but stance: articles which appeared were
increasingly less trying to work out details than support one side of the issue or the other. For
their own take, quite in line with the likes of Frischmann at the time in seeing the Internet as
infrastructure which produced positive externalities ignored by Sidak and Yoo (Frischmann,
2005; Frischmann & van Schewick, 2007), they propose, based on the work of Benkler (2006),
Lessig (2002, 2007), Mark Cooper of the Consumer Federation of America and Wu, network
neutrality as a normative principle:
16

Much of the existing scholarship and commentary fails to sufficiently emphasize
the import of normative principles—principles regarding the role of the Internet
in a democratic society and the debt that the Internet providers owe to the public.
…The fact that network neutrality is a normative principle is far too often
overlooked. Industry attempts to reframe the debate, growing technological
complexity, and shifting allegiances among competing actors artificially sunder
democratic Internet principles that should be considered together. …[W]e
envision a more open and participatory Internet. Frequently referred to as a
commons-based approach to the management of communications systems, this
model emphasizes cooperation and innovation as opposed to privatization and
enclosure. Given that all technology is inscribed with social values that foreclose
certain possibilities while encouraging others, emphasizing these linkages
illuminates what is at stake with network neutrality and situates this debate
within a larger vision of Internet openness (pp. 14-15).

Their vision is revealing, consisting of ten points that would find themselves expressed
yet again a few years hence as Meinrath, Losey and Pickard (2010-2011) would look, layer
interstice by layer interstice, at emergent multiple bottlenecks in Internet infrastructure well
beyond the one so often identified during the network neutrality debates of the aughts (that is, at
the IP layer). Normative principles of network neutrality would require, in their view, first and
foremost mandated common carriage. Internet architecture should “support open architecture and
open source drive[n] development,” including “open protocols and open standards.” It should
feature “an end-to-end architecture (i.e., is based upon a ‘dumb network’);” while
“safeguard[ing] privacy (e.g. no back doors, deep packet inspection, etc.).” Building upon the
concept further, it should foster “application neutrality” while “mandat[ing] low-latency and first-
in/first-out.” Interoperability would need to be ensured as well as remaining “business-model
neutral.” Finally, it would need to be “governed by its users (i.e., is internationally representative
and non-Amerocentric)” (Meinrath & Pickard, 2008, p. 18). This is to say, whereas so many in
the debate seen as the ‘prime movers’ in the academic realm (and legitimated as such) were
emphasizing minutiae of telecommunications operation and competition policy, it was perfectly
17
possible to set up large goals and guidelines that would serve to determine exactly whether a
particular form of discrimination was harmful or beneficial, allowing room for interpretation on
specific cases but grounded in a firm normative foundation. It is revealing that the main players in
the literature insist on shunting these normative notions to the side in favor of specifics.

Where network neutrality loses itself

As the endgame approached in 2009, these debates had every appearance of ferocity.
Once the Notice of Proposed Rulemaking (FCC, 2009a) was released, in late 2009, early 2010
and mid-2010, the Federal Communications Commission held a series of ‘workshops’ inside and
outside of Washington on debates long played out. On December 8, 2009, one was held covering
“Technical advisory process workshop on broadband network management” (FCC, 2009b); on
December 15, 2009, one on “Speech, democratic engagement, and the open Internet” (FCC,
2009c); on January 13, 2010, another on “Innovation, investment, and the open Internet” (FCC,
2010c); on January 19, 2010, the topic was “Consumers, transparency, and the open Internet”
(FCC, 2010b); and finally, another on April 28, 2010 was entitled “Approaches to preserving the
open Internet” (FCC, 2010a). President Obama himself extolled the concept at least 83 times
across various addresses, blog posts, and beyond, and in a positive light.
1
Yet, in the end, none of
these debates seemed to have moved the Commission one way or another: as Wu notes (2011a),
the adopted rules did not budge much from a speech delivered by ex-Chairman Powell’s nearly a
decade prior.
Revisiting the literature today, one is struck by a supreme sense of confinement. This was
similarly felt even at the time; the multiple times I returned to Washington from 2006 through

1
The following Google search was performed which yielded the result on August 23, 2013: “‘network neutrality’ OR
‘net neutrality’ site:whitehouse.gov”.
18
2010, burnout on network neutrality was palpable: the same debates were being rehashed again
and again even as certain questions appeared settled and done. The literature is wholly
unsatisfying on any number of levels, absolutely grating against the reasons I involved myself
with this thing ‘media reform.’ Here was an issue that struck at the heart of free-speech concerns,
justice concerns, the digital divide, and more: how narrowly it was construed, and how narrowly
it continues to be construed, turns out to be one of the chief data-points of my study.
Perhaps one might then run to the realm of political science, where questions of
regulatory capture, administrative function, and institutional incentives of regulators have long
been subjects of concern. Horwitz (1989) provides a powerful overview of many strains of
thought in this regard in his thick description of the progress and ironies involved in a shift from
New Deal regulatory oversight to 1980s moves to ‘deregulate.’ The core of Horwitz’ argument,
now decades old, is that it is a mistake to think of any of these agencies as originally serving any
‘public interest’ which becomes desiccated over time. He makes a thorough study of existing
paradigmatic turns in the theory of regulation and regulatory capture from both the left and right,
a realm every bit as immense—much more so—than the network neutrality debates themselves.
When Horwitz arrives at his own iteration that seeks to avoid functionalism and
oversimplification, he recognizes that agencies are often the weakest player in broader formations
of power. The legal realm is itself most appropriately seen not as part and parcel of the seeming
‘captured’ nature of agencies by dominant interests; rather, one needs to view the rationalizations
and thought-processes provided by these players as semi-autonomous. This is a view also
strongly illustrated by Napoli (2001). It does not help, Horwitz notes, that industry pressure and
power stem from the fact that agencies act within an industrial framework that is preconstituted
with generally negative forms of power available to them. They have a tendency not just to be
conservative, but also to avoid rulemaking altogether: instead, they bargain. Regulatory power, in
19
his view, becomes a commodity for which parties with standing vie; administrative process
becomes a forum to work out conflicts, such that their conclusions would then be enforceable by
law.
The conservatism of bargaining is that it’s only amongst those with standing, and once
established, the agency is loath to disturb the new agreement; thus “basic regulatory formulas,
whether rules or policies or methods, achieve a kind of settledness; they become like political
constitutions which structure all rules and policies together” (Horwitz, 1989, p. 87). The move to
pressure agencies to ‘deregulate’ stemmed from an increase in parties with standing in regulatory
matters (at the FCC, for instance, the battles of civil rights advocates in the late 1960s were
pivotal in granting the broader public standing in matters before the commission). Such expansion
of standing, however, would disrupt “balance of formalism and bargaining historically receptive
to industry interests;” (p. 87)—as it became more open and more political, industry found it more
costly, time-consuming, and contentious; this actually leads to increased formalism of the
process. “[T]hough formalism and bargaining are opposite tendencies, in another sense they feed
on each other. Both contribute to agency conservatism" (p. 87). “Regulatory agencies, opened up
to more democratic participation, became less able to bargain and more bound to procedural
norms. Administrative rationality and economic rationality diverged, and by the mid-1970s
business engaged in a wholesale revolt against regulation” (p. 89).
Horwitz’ take certainly rings true for the experience of my old colleagues as they
experienced it: what we see in the 2010 Open Internet decision was exactly this brand of
regulatory conservatism and bargaining, wrought of a formalism designed to contain the massive
effort of individuals across the country to exercise their standing; this from an administration that
muppeted the words of network neutrality activists themselves before their decisions would have
to be made. With the possibility of the FCC’s own authority to set terms for the operation of
20
broadband networks being struck down real, advocates tell me that in the broad sense they are
preparing for what will likely be an entire rethink of the Telecommunications Act. It appears that
we could well be on the cusp of either great opportunity or great peril; the recent appointment of
Tom Wheeler—a favorite of telecommunications and cable interests—by President Obama to
chair the FCC does not give me great hope. By the same token, his selection makes a form of
perfect sense.
Following what many considered the disastrous outcomes of the Open Internet debate
(and the subsequent allowance of the Comcast-NBC Universal merger), in the public interest
community, a return of left-capture arguments rode once again to the fore; attention shifted to
bought-off staffers, to revolving doors. There is much truth to this: Comcast brilliantly hired away
numerous staffers from FCC offices that had been sympathetic to media reformers’ causes in its
endgame. Staffers of friendly Congressional actors went to work for powerful
telecommunications and cable giants. Reacting to such overwhelming power, Josh Silver, one of
the original founders of Free Press, left the organization to return to his old bailiwick—campaign
finance reform—by founding a new organization, United Republic, to address these issues head-
on. The long-standing frame of a bought commission, of ‘capture,’ of the public interest deferred
continues to operate in the minds of Washington advocates, and not for bad reason.
In numerous regards, however, this frame seems incomplete and only partially satisfying.
Even more so, the sky-high theories of regulation that have developed over the past decades are
similarly unavailing from my point of view. This is because such analyses are examining the
actions of regulatory officials after the decisions are done: they examine the actions of political
movements, examine perhaps they key stances and, perhaps, their arguments as rendered at the
end, but not the formulation-stages of these arguments. And it is to these that we need to turn: not
just an analysis of ‘who controls the FCC,’ for it’s quite clear by the actions of the agency that
21
effective ‘control’ continues to lie in the hands of those who seek to continue building the
capitalist order in its own image for years to come, and here, we reach a dead end. In short, these
theories of regulation and capture ask the wrong questions for our task at hand.
My narrative does not seek to supplant them; rather, I view their scope as not nearly
broad enough. What all of these theories miss is an ‘angle from below.’ How one interprets the
political environment matters: it shapes how actors working purportedly for the public interest in
attempting to shift national policy and beyond respond in policy settings; it shapes their
understandings of what is possible; and even outside the proverbial beltway, it shapes how one
views policymaking, period. Even more importantly, from my perspective, it shapes the kinds of
activism that forms around an objective of changed policy. It is necessary to add one more
narrative to a story of ‘capture’ and money in politics. The story I tell (and my theorization of the
quandary itself) is hardly meant to supersede any of the large number of theories surrounding
questions of regulatory capture, structural analysis of numerous stripes, etc.; rather, my tale acts
as an overlay to such thinking.
When one looks at the arguments surrounding the ‘network neutrality’ concept as it
formed, the more one realizes that those moments in the late 1990s and early 2000s something
discernibly shifted in terms of the manner in which public interest advocates were addressing the
emergent broadband problem, and this stemmed from the way in which the argument itself
shifted. This transformation in debate, and how it then proceeded to unfold in the halls of power
in Washington, DC, was revealing in terms of how one needed to interact with policy players: the
network neutrality debate revealed if not the shortcomings then the limits of activism today.
Given the role of the Internet in intensifying the broader sales effort, it seems appropriate to
borrow an old notion to tackle a new issue: James Rorty, the advertising-man turned radical of the
Great Depression, drew a similar frustration as I in addressing critiques of “advertising”:
22

The advertising business is quite literally the business nobody knows; nobody,
including, or perhaps more especially, advertising men. As evidence of this
general ignorance, one has only to cite a few of the misapprehensions which have
confused the very few contemporary economists, sociologists and publicists who
have attempted to treat the subject. ...Perhaps the chief of these misapprehensions
is that of regarding advertising as merely the business of preparing and placing
advertisements in the various advertising media: the daily and periodical press,
the mails, the radio, motion picture, car cards, posters, etc. The error here is that
of mistaking a function of the thing for the thing itself (Rorty, 2004, p. 132).

What Rorty meant was that to only examine the function of a thing like advertising (to
sell products) is to miss the story entirely. The advertising business encompassed all who carried
ads, sold ad space, as well as the advertisers themselves; the implication was that the public was
part of a large-scale training exercise in consumerism. Too many critiques addressed only the
offensiveness or dishonesty of specific campaigns. Similarly, theories of regulation and stories
which limit their tale of network neutrality to the last half of the aughts mistake the function of the
debate for the debate itself in a similar fashion: that is, they miss what undercurrents were in play
at propelling this debate forward in a seemingly inexorable direction. In order to access this
dimension of it, new tacks must be taken: ones that, perhaps ironically, view discourse as a
material construct and examine it as such, ones that seek to examine what arguments, actions, and
beyond are structurally erased by the current conjuncture.
Discursive analyses, then, could prove enlightening; but present attempts to evaluate the
network neutrality debate from such a dimension (loosely defined) tend to fall victim to several
errors. For one, they tend to fall victim to the timeframe error of considering post-2005 as the
core of the debate. For another, they become trapped within the discursive framework within
which network neutrality operated, not realizing their own confinement.
23
For instance, Cherry (2007) sought to augment arguments that material power imbalances
were primarily responsible for dominant broadband players’ success at pushing back against
activist demands. She notes, “Although resource differentials between issue proponents and
opponents may be an important factor affecting agenda success or failure, in many circumstances
this explanation is insufficient” (p. 581). Rather, “symbolic and cultural strategies,” as “agenda
denial,” were every bit as important a set of strategies whereby opponents can “define issues and
their proponents in ways that make active consideration of issues less likely" (p. 581). Noting
such “low cost” strategies (denial; non-confrontation) to escalatory practices (discrediting
advocacy groups or the issue itself; admit problems but offer non-availing solutions) to “high-cost
strategies” (violence; economic threats) she seeks to elucidate the ways in which opponents to
network neutrality committed flaws in their own reasoning. For her, the ball is in network
neutrality opponents’ court: "[T]he burden within the debate may need to shift to opponents to
justify their claims that failure to impose network neutrality will likely not create greater negative
consequences. Similarly, they also challenge the adequacy and wisdom of the FCC's strategies of
symbolic placation" (p. 592). This conclusion is opposed to that of Clark (2007), who put the
onus on activists: proponents’ proposals needed to be "clear and workable," and despite shifts
taking place,

At the moment, the ball is in the court of those who favor network neutrality.
They have the responsibility to propose a set of definitions for the dividing line
between acceptable and unacceptable discrimination. The issue is complex, and
Washington likes simple cartoons. Most of what we have seen so far (in my
opinion) either greatly overreaches, or is so vague as to be nothing but a lawyer's
employment act (Clark, 2007, p. 708).

In a different vein, Powell and Cooper (2011) argue that what is needed is analysis of
“the nature of the relationship between advocacy and regulation, particularly … the way that
24
arguments flow between advocates and regulators” (p. 314). They seek to “understand the
relationship between the advocates who have advanced arguments in favor or opposed to Net
neutrality, the representations of these arguments in mass media, and the results of this agenda
setting on the arguments supported by official regulatory policy documents.” In comparing the
US and UK cases, “this analysis reveals that historical precedents in media regulation as well as
the circulating power of mass media outlets combine to advance specific arguments about Net
neutrality that are sometimes paradoxical and frequently culturally grounded” (p. 3). In the U.S.,
the authors identify five principal themes which emerged: problems of definition, free speech and
democracy, innovation and investment, competition and market forces, and history and precedent.
They find that "flow of discourse tended to begin with advocates in 2006, move through the
press throughout the 2006-2010 period, and eventually be incorporated into the regulatory
material, often with the first substantial regulatory discussions occurring in 2009’s Open Internet
Notice of Proposed Rulemaking" (p. 316). They find that advocates established the frames for
debate, and the media performed an agenda-setting function in selecting “specific arguments to
surface in the popular press” which depended on “the substance of each particular argument” (p.
316). Regulators purportedly “incorporate[d] ideas from among the established advocacy frames
and arguments reflected in the media into their own regulatory work” (p. 316).
They note that with the entry of the Obama administration itself seemingly “less
ideologically inclined to rely solely on market forces” (a questionable assertion itself), media
narratives of the previous years which emphasized market abilities to discipline operators
“became less visible in regulatory discourse” (p. 321). It “speaks to the limits of the agenda-
setting function that the media can play” (p. 321). Further:

Our analysis reveals…that the structure of discourse is a central determinant of
policy outcomes and regulatory posture, in combination with structural factors
25
which the discourse in turn addresses. In the United States, advocates established
a broad range of arguments, some of which were amplified by the media.
Regulators drew from both sources, however, giving advocates the chance to
impact regulatory discourse regardless of the media exposure of a particular
topical argument, such as in the case of competition (p. 322).

This completely misreads the situation. Mistaking lip service for impact, they state,

The competition arguments provide perhaps the greatest proof that, in some
cases, regulators will do what they do regardless of external influence. In the
United States, despite support for free market idealism in the mass media, the
FCC’s more recent statements have acknowledged the limits of the current
market structure and the need for regulatory action. And despite drawing on U.S.
influences, the UK regulator has taken the opposite view and seemingly framed
the argument in a way to limit advocates’ terms of debate (p. 323).

The mistake that all here make is in their assumption that these arguments themselves are
what, in the last analysis, affect the end-decisions being contemplated by regulators. They are
important; they must be argued; but these arguments fulfilled an entirely different function
stemming from the epistemic environment in which they were couched. In Powell and Cooper’s
case, they get it backwards: regulators do what they desire in the endgame; but the arguments
themselves serve an entirely different function than informing end-actions, although they could.
Everyone I met at the FCC at the staff level was sincerely interested in the minutiae of policy
debates. One interviewee from the Office of Strategic Planning and Policy Analysis wished my
project would address how to make the process actually work. The fact of the matter, however, is
that these debates were all about legitimating actors in the hopes that they obtained the ear of
decision makers in the end, at which point pure politics takes over. This is a radically new
vantage point on the issues at stake.
26
What the network neutrality debate exhibited all along was a form of ‘processing bias’:
the arguments themselves, in their processing by all players involved, needed to hew to a
particular set of terms in order to matter as an actor where decisions were made. As long as one
pursued the debate in these terms, one mattered; when one deviated, one ceased to be seriously
considered. The process of legitimation was intimately tied to epistemic currents flowing
underneath of long vintage. This dissertation argues that these are pivotal for activists to
understand, as they inform not just the legitimation process, but also the assumptions of those
who get to sit at that table in the end. Calls for advocates to recognize the ‘complexity’ of
network neutrality were effectively both poison pill and an invitation to be taken seriously at one
and the same time.
To wit: Cherry argues that there was an overemphasis and reliance on antitrust in these
debates, but I interpret her broader points to indicate she feels that this stemmed from a short-
term discursive strategy. She is incorrect on two counts. For one, arguably, opponents of network
neutrality turn out not to be the ones which initiated the shift: it would be its original advocate,
Wu, which sturdied the bridge to this realm. For another, this was no short-term strategy;
undertaken knowingly or not as such by partisans involved, it was part of a long-standing
strategy, decades old, in which all actors found themselves swept up. Cherry, in particular,
mistakes ‘agenda conflict’ and ‘denial’ for the real issue: opponents’ rhetorical strategies are
important, but in a different sense than she believes.
In this vein, perhaps one of the more revealing documents to emerge of late is Robert
Atkinson’s “Economic doctrines and network policy” (2011). Atkinson, as head of the
Information Technology and Innovation Foundation (ITIF), was one of the ‘think tank’ actors in
the network neutrality debate, largely urging a hands-off stance by the FCC on the issue. The
Foundation, of course, finds support (both monetary and board of directors-wise) in the corporate
27
actors most interested in the issue. But this article is a key example of discourse-analysis as
maintenance of a particular “processing.” “While many network policy issues have an
engineering basis, with disagreements revolving around technical matters, much of network
policy is based on economics,” he argues;

And despite what many economists claim, economic approaches to the Internet
differ substantially. These approaches reflect differences of economic doctrine
among economists, policy makers, and others. This paper postulates and
describes four competing economic doctrines: conservative neoclassical, liberal
neoclassical, neo-Keynesian, and innovation economics. It explains how each
doctrine leads to different views of appropriate network policy and explores the
influence of doctrine on four controversial network policy issues: broadband
competition, net neutrality, copyright, and privacy (Atkinson, 2011, p. 413).

Adopting an untheorized and simplistic amalgam of epistemic determinism at an
individual level, he continues,

When considering economic issues, it is important to realize that much of what
appears to be objective theorizing and unbiased analysis is in fact deeply shaped
by the doctrine of the economist. Economists’ and policy makers’ beliefs about
what policy works best for the economy, including their beliefs about the
appropriate types and roles of network policy, are not simply independent
constructs applied to new contexts; rather such beliefs constitute an area
reflection of coherent world views or doctrines. Such doctrines profoundly shape
how proponents view the economy, what they consider important, and most
importantly, what they believe to be correct vs. misguided public policy. These
economic doctrines guide thinking and help individuals make sense of a
complex, rapidly evolving economy (Atkinson, 2011, p. 414).

His taxonomy is unavailing. Tim Wu, who approaches the issue strictly from an
evolutionary innovation perspective, Atkinson calls “the most prominent” neo-Keynesian of the
debate amongst a field of ‘conservative neoclassicals,’ ‘liberal neoclassicals,’ ‘neo-Keynesianis,’
and ‘innovation economists.’ But no matter: a warped taxonomy is not the key issue here. No,
28
this article attempts to perform an entirely different set of labors. First, it is an effort to divide up
a field of players into 'classifiable' quantities, which is itself significant. Further, it performs a far
grander function to boot: it hides what really amounts to a great uniformity in the thinking behind
broadband policy by advocates and opponents alike under what appears to be a thesis of debate
amongst seemingly incommensurable positions. Thirdly, it aims to re-anchor the debate within an
exclusively economic framework. To my knowledge, this article has hardly been a pivotal piece
in broader debates: yet as an artifact of the network neutrality struggle, it is a near-perfect
illustration.
Harold Feld—a prominent advocate, now based at Public Knowledge but formerly part of
Washington’s now-defunct Media Access Project—noted to me his puzzlement at Republican
inclusion of a line in their 2012 platform against network neutrality. In doing so, he provides
another lens on the discursive elements of this quandary. By 2010, most of the industry
participants were satisfied with the emerging outcome at the Federal Communications
Commission (even as pro-network neutrality advocates took issue with the emerging consensus),
and usually when that happens, the issue slips away. For him, a key question he wanted answered
about the proceeding was: why did Congress still care, after the proceeding was over, when
AT&T, Comcast, and “all of the cable guys” didn’t, and even Verizon wasn’t that big on it?

[E]verybody comes into this on the assumption that ‘of course, industry drove
this’…what you really ought to ask is why, after industry called it quits, is this
still on the top-five list of republican boogeymen? Why is it that in 2008, this
shows up as a Democratic issue on the Democratic platform, and why is it that it
shows up as a Republican issue on the 2012 Republican platform? What
happened? And why, particularly in the Republican case, when all of the industry
interest had gone away? It’s not that the industry guys don’t care, wouldn’t be
unhappy to see the rule go, but nobody in particular was very excited about it.
…If you ask that question, and don’t treat the political outcome as a foregone
conclusion, and instead ask why the issue is still around and work backwards
from there, I think you come to some very interesting results (personal
communication, 27 Sep 2012).
29

Feld puts his finger on what was so frustrating regarding the current “debates” swirling
around this issue and how circular they became. Even as we witnessed a bifurcation between
those who either approved of the idea, actively pushing for it, or those opposed, was the lack of
any work which took a longer view: what is significant about this literature is the manner in
which all these works analyzed the issue as the issue itself, taking one side or another. It turns out
that this is significant. One reads the literature looking for surprises, and there are none to be
found: immense as the literature is, if one decided to download the thousands of articles and
decide to classify them, few wouldn’t end up easily classifiable as “for” the issue and those
“against.” However, the partisan nature of the fight served to hide this ruse. The translation of this
theoretical debate into one of party affiliation was a necessary and brilliant move to ensure that
the mutually-sustained trajectory of both sides remained obscured.

Locating erasures

My research questions stem from my interest in the ‘knowledge industry’ surrounding
media policymaking. This dissertation thus seeks to uncover the underlying forces by which
neoliberalism, as a project, was maintained and strengthened by usurping the thoughts of these
activists. To the extent that such technologies require the services of cultures of interpretation (or
other ‘epistemic communities’) to be rendered legible, what does this portend for public discourse
surrounding media and communication policy? Given the myriad ‘points’ from which new
‘technologies’ emerge that then circulate through the FCC, where might those who seek to affect
change address their efforts so as to make institutional processes more conducive to their
arguments and desires? In what ways is engagement with the agency productive, and which ways
30
not? How do we need to thus rethink the concept of ‘media activism’ in light of this? Does it
cease being ‘media activism’ and transform into something else? What are the particular means
by which these debates grew, and what was their historical foundation? What were the particular
means by which we are or are not admitted to debates within Washington, DC? What cultural
labor did the network neutrality debate perform writ large? What does it teach us about the
continued expansion of neoliberal capitalism as its logics continue to settle in?
One of the paradoxes that gives this dissertation its name is that the more deeply one
looks at the network neutrality debates, the more it appears that the seeds of its own destruction
were contained in its own roots. It is an historical irony that advocates were able to sustain the
debate as long as they did and with the visibility they did, taking advantage of novel
circumstances and the newness of organizing techniques online. The second paradox appears to
be that in order to discern how the next set of battles may lead to a different outcome—the same
tactics simply won’t work anymore—one needs to understand the transitional period between
open access debates and network neutrality debates. To answer these questions, it turns out that
one needs leave behind the ‘heat’ of these debates for the seemingly already well-trod transition
period when ‘open access’ debates transformed into ‘network neutrality’ debates. This was a
discursively productive time.
Even more of concern, a third paradox may be that in battling one form of control,
another was busy settling in, and cared not a whit under which regime it would settle. I believe
that a new problematic needs to be faced—one that this dissertation as a whole seeks to describe.
This problematic is in regard to the material supports of knowledge-formations; if those fighting
for open access upset certain of these, the transition to the network neutrality debate served to
restore them. With the battle of position transitioning to battles of maneuver, longstanding
currents were invited back to the fore. The ways in which these currents re-emerged, and continue
31
to fight for dominance (although cracks in the armor seem to be beginning to appear), reveal a far
deeper problem with which activism must contend if it expects to confront the question that is
truly at stake: what should our media look like if social justice, and not rote commercialism, is
our end-goal? This was a debate conspicuous in its absence when it came to broadband networks.
Of late I have faced my own growing frustration at the increasing overdependence upon
the narrative provided by Harvey (2005) and its derivatives. His otherwise immensely useful
oeuvre on neoliberalization seems to me in the hands of too many communications scholars to
have led at times to too-easy descriptions and explanations (ironically without explanation).
While it is not a functionalist account by any stretch, taken as a foundation upon which a great
deal of other work rests, it seems sometimes to grant the neoliberal drive a systemic
neofunctionalism with which activists who seek to push back against its worst ills can do little.
Recent efforts to critically examine the push for network neutrality, such as that of Dolber (2013),
suffer from this. Dolber draws his theoretical tie to a summary article by Neubauer (2011), which
argued that

the resurgence of capitalism and the subsequent rejuvenation of global class
power since the 1970s are best described neither by technological determinism
nor a self-propelled reorganization of capitalism, but rather through the
hegemonic consolidation of a very specific ideology. This ideology is
neoliberalism, and its connection with informationism is as profound as its
implications for democratic citizenship are corrosive. Both informationism and
neoliberalism emerged from mainstream think-tank’s [sic] and universities; both
were funded and propagated by powerful corporate and government actors; and
both seek to paint the emergence of global neoliberalism as inevitable yet
desirable, while simultaneously prescribing the institutional, political, and
economic reforms which make this system feasible (Neubauer, 2011, p. 196).

Neubauer notes, borrowing from Harvey’s accounts, the roles played in the development
of neoliberalism today by Friedrich Hayek and the Mont Pèlerin Society, the Business
32
Roundtable, and more; these, too, are points that McChesney and Nichols similarly delineate in
their recent Dollarocracy (2013). This skim lacks an additional effort to drill into the ways that
neoliberalism spreads and reconstitutes itself, and one of those means is less the ideas in
propagation than the platforms they support—which is a step beyond calling out an ideology.
Dolber’s critique of latter-day policy-based media reformers is still well-taken as he
argues that activists, as much as corporate actors, perpetuated several of ‘informationist’ myths
which serve as neoliberalism’s right-hand—all of which is undoubtedly true. In examining the
discourses of media reformers as Free Press, the Communications Workers of America, and the
civil rights organizations which sided against network neutrality, Dolber notes the ties of all
involved to the three ‘myths’ perpetuated by the notion of informationism: the equality of labor
and capital (using garage startups as exemplars of the importance of an open Internet), that new
technologies will enable in and of themselves full citizenship (a technologically-deterministic
notion of cosmopolitanism, even at smaller scales), and an acceptance of corporate elites within
new media, such as Google, as defenders of democracy. He concludes,

SavetheInternet’s informationism was predicated on a familiarity with and a
connection to online services to which many people do not have access or do not
use. Believing that content providers are working in the service of democracy
requires some level of interaction with, and affinity for, those providers. While
arguments that were inherently critical of capital’s relationship to technology
might have resonated across the digital divide, informationist discourses allowed
potential allies to view ISPs—not content companies—as the true emissaries of
democracy in neoliberal societies (Dolber, 2013, p. 151).

Informationism “constricted the terms of the debate over network neutrality” (p. 157), leading to
a basic question: “[C]an policy discourses operate outside of informationism” (p. 159)?
His question is my own. His answer, however, falls victim to the illusion that the
principal debates took place after the Brand X decision of 2005. What Dolber does not examine is
33
this debate’s materially constructed history: a political economy of an ideological firmament.
Informationism is a static notion: what is needed is a more dynamic one. It is just too easy to
castigate the political tactics of these public interest players in performing such seeming
functionalist roles for neoliberalism: examining the reasons for these alliances, their pragmatic
aims in doing so, offers great insight about our time and activism in general. Situating this
informationist discourse within a historicized context would do much to point activists toward
next steps. It could have been argued in other terms but wasn’t. What is necessary is an
examination of the uses of informationism: a more complex thing was happening, similarly
accessible via discourse analysis, but in a materialist register. Dolber points it out and stops. One
needs to observe the ways that neoliberalism was itself constructed via these discourses in new
form to provide a more substantive view of what was happening. This was not some static
‘informationism,’ but rather a further development off of longer-standing discourses.

Method and chapter breakdown

What is sorely needed is a specifically material historicization of thought to tie it to
broader currents flowing beneath. Powerful actors pay too much attention to the epiphenomenon
of the neoliberal drive; what gets neglected is its continued reconstruction. Lest I be misread: I
believe Harvey’s accounts are fantastic things and incredibly useful for analysis. Increasingly,
however, the use to which they have been put—conceiving neoliberalism as a set of unified
business maneuvers (in the guise of a seemingly static ideology that claims dynamism without
demonstrating it beyond its own overly functionalist imperatives)—results in losing sight of what
a ‘bottom-up’ view of neoliberalism looks like, the kind of thing Dolber is trying to accomplish: a
self-critique of activist action for more effective struggles to come.
34
This dissertation, then, aims to perform two tasks. One is to re-write the story of the fight
for open access conditions on broadband networks themselves, to revisit the tale of the small
group of self-described ‘grass-tops’ organizations who, against all odds, managed to bring the US
the closest it has come to any vision of a broadband-as-utility model, if indirectly and by pieces.
They spoke their case in terms of competition, but their aims were far broader: they were
concerned not with competition for competition’s sake but with the function that these networks
would serve in terms of democratic norms going into the future, for social justice, and for
innovation. The second task I seek to perform is much more ambitious. I seek to lie out a new
problematic that activists seeking democratic ends need to face, one that the debates surrounding
network neutrality ironically served to bury. This central question is, perhaps surprisingly,
epistemological and material at the same time. Whereas network neutrality, by all indications,
appeared a fight about the future of the Web, it both was and it wasn’t: in many regards the
debate ironically stymied the ability to combine the necessary issue into a united whole necessary
to address the broad view.
This requires an historical investigation of the cultural, epistemological, and material
processes that prepared the ground for the arguably quite disappointing result of the Federal
Communications Commission’s ‘Open Internet’ proceeding of late 2010—how we came to
accept certain measures and knowledge of our media system as the basis for policy, and the
implications for activism going forward. My contention is that the debate itself is the unit of
analysis most appropriate to examine. Is this a political economy? To the extent it is, it is a story
about the efforts of (certain emergent) sectors of capital to gain a particular form of dominance.
Yet that is hardly the most interesting element of the story. Is this a cultural studies story? It is an
examination of dominant norms being formed; the open access debate was the training-ground for
new activists in the 2000s. It takes seriously Sum and Jessop’s call for a ‘cultural political
35
economy’ (2003), that such an approach “take[s] the argumentative, narrative, rhetorical, and
linguistic turns seriously in the analysis of political economy;” it “examine[s] the role of
discourse in the making and re-making of social relations and its contribution to their emergent
extra-discursive properties;” it accepts the “(in)stability and the interplay of objects-subjects in
the remaking of social relations—and hence the importance of remaking subjectivities as part of
the structural transformation and actualization of objects” (Sum & Jessop, 2003, pp. 14-15). Is it,
then a tale of ‘science studies,’ in a sense? To the extent that it is a story of the material
construction of a particular conceptual apparatus—one that had material effects upon the manner
of policy formation in Washington, if indirect—it is that as well.
In their recent and important book Greening the Media (2012), Maxwell and Miller recall
Benjamin’s image of the ragpicker as “a motif for philosophical or historical method in times of
chaotic change that could not be captured by social scientific controls” (p. 103). This is exactly
my challenge and my method, borne of necessity. Approaching these debates from the underside
rather than from a sky-high view, network neutrality becomes but one part of a broader set of
debates surrounding the development of the Internet that has only become more buried the more
involved in the technocratic side of the debates advocates became. The continued
commercialization of the Internet itself always resided in the background of these debates, but
never really came into view as the key question to be addressed; this is the chief argument that
McChesney (2013) seeks to address. By observing the transformation of the open access debates
into exclusively network neutrality debates, the material impacts of theory come into view. That
is: the method I undertake is seeking the erasures of those moments and arguments which upset
the broader undercurrents which comprise the modern platform of debate. In particular, my task is
to outline those actions and debates which less upset neoliberal formations than revealed to it its
own contradictions, leading to efforts, undertaken quite naturally and without malice, which
36
served to erase these contradictions. This is something different than corruption, in McChesney
and Lessig’s sense, and in those of my former colleagues. I am careful to note that all of this
represents something quite different from some rote notion of ‘economism’ of the ilk, perhaps,
Atkinson in his semi-discursive analysis expressed where the effects are direct. These are
anything but the sort.
I draw inspiration from the strongest historical work in the communications tradition. A
key feature of such work, as illustrated by McChesney’s classic study Telecommunications, Mass
Media, and Democracy (1993) detailing the intense struggles over the future of radio during the
late 1920s and early 1930s, as well as Pickard’s more recent analyses of the Hutchins
Commission and Blue Book analysis by the FCC during the era following (Pickard, 2010, 2011)
is the notion of ‘ideological closure.’ Utilizing what he terms a “neo-Gramscian” version of
history, Pickard describes the key struggles but then the efforts following their end by players to
justify the positions taken. In McChesney’s instance, following commercial media’s victory in the
Communications Act of 1934, David Sarnoff would trumpet that the result was not that of policy
debates but an ‘American way.’ Pickard argued similarly regarding the importance of efforts to
establish a new ‘common sense’ whereby dominant actors would emerge as the natural victors
(and regulators) of their respective domains: the pushback against both the FCC’s Blue Book and
the findings of the Hutchins Commission—tepid as these products were—resulted in a ‘common
sense’ that a negative interpretation of the First Amendment would prevail. Where this study
differs from these two is that in the story I tell, it turns out that ideological closure still has its
advantages for the victors of these debates, but for broader systemic prerogatives, it turns out that
a lack thereof can sometimes be just as useful, if not more so, if cast in appropriate terms. That is,
the way ideological closure is ironically maintained is in its continued argument in its preferred
arena—and this is a historically specific conjuncture.
37
Pickard makes another important contribution. The debates he describes were themselves
hardly radical affairs: all the same, he sees the possibility of a recovery of radical imperative from
them if they could be so harnessed. What I find in my own study is a similar possibility of radical
recovery: by the same token, an interpretive, discursive tack of the core arguments themselves
reveals a level that remains unaddressed by these actors which points to a new problematic.
Continuing to blame the think tanks of the last few decades alone misses the point; to counter
with think tanks that ‘cancel out’ their views is similarly useless, if not disastrous—neoliberalism
today is promulgated by a platform of process, not the promulgation of specific ideas; running
ideas counter to those offered by the neoliberals only instills them more deeply upon the plane.
Or, to be clearer: just as old strategies never die, this now becomes one more layer of activity
with which activists need to contend. Activists were complicit in this, but at a far deeper level
than what the likes of Dolber believes. Where he sees them as always already traitors to their own
purported causes (or blindly marching forward of their own volition), I see them as having had
little choice in taking the actions they did, and one cannot brush them off so easily as betraying
the broader cause of justice.
A microstudy of neoliberalism in its action and propagation, then, requires us to look at a
wide set of artifacts to piece together the story. It is necessarily interpretive, and to the extent I
have been successful here, I have provided a fresh viewpoint on these materials and how they fit
into a broader, cohesive whole where once they seemed scattered and dispersed. I spent three
months in Washington, DC during the fall of 2010, leaving as the Open Internet Order was
issued. I had the good fortune of being able to interview several economists and staff from the
Federal Communications Commission, both present and past. Many would only speak on
background, and I respect their wishes here, particularly as ongoing issues at the Commission are
not discussable absent the filing of an ex parte notice. Many of the arguments put forth by
38
advocates of the late 1990s were housed aboard their websites at the time and were not
necessarily turned into published journal articles. The Internet Archive allowed me to excavate
numerous of the original documents that consumer advocates of the late 1990s utilized to make
their case. I made an exhaustive search of news accounts from trade and mainstream press
surrounding these debates as they transpired and I made a detailed study of these. These accounts
filled in details but were tempered with accounts from public interest advocates. Trade press, as
all historians in this realm realize, has its own institutional biases. A deep exploration of
comments cast into FCC dockets relating to the cable transactions of the late 1990s provided an
additional wealth of the scope of argument present. I followed-up this archival research with
interviews with key activists in the network neutrality fight in the late summer and fall of 2012 to
obtain broader perspective on present-day debates.
The layout of the dissertation is as follows. Chapter 1 establishes the necessary
theoretical framework upon which I build my case. In particular, it seeks to discern the numerous
ways in which a deep erasure of the open access debates and strategies took place. Here I pinpoint
the erasures the network neutrality debate implicitly and explicitly commits of consumer
arguments of the late 1990s, ones inconvenient for the continued settlement of what one best
describes as a neoliberal governmentality in a new register (Foucault, 1991). It investigates
interpretive tools to discern the erasures of this transitional time so as to draw them out into the
open, drawing from political economy, cultural studies, and science studies. I also seek to tie
these debates less to the interpretation of neoliberalism provided by David Harvey than the
alternative, intellectual-production perspective of Philip Mirowski (1989, 2004; 2007; 2002). This
turn offers a striking new way of viewing the events to come as they unfold.
Chapter 2 commences the history of this transformative period, examining a key
conjuncture in the development of what became a national debate regarding open access policies
39
over broadband communications. This is the story of the effort of one local regulatory body,
Portland, Oregon’s Mt. Hood Cable Regulatory Commission, to utilize the cable franchise
renewal process to foment competition on their own terms over broadband networks—a true
David versus Goliath story. AT&T would respond with a vengeance, launching an epic struggle
that would culminate in the network neutrality debate of the aughts. Examining press coverage,
meeting minutes of the Mt. Hood Cable Regulatory Commission, and corroborating documents
from activists culled from the Internet Archive, I am able to paint a picture not just of a local
struggle but one of the loci where neoliberal imperatives found themselves abutting and creating
their own contradictions. The emergent ‘open access’ debates were hardly radical struggles: they
were competing interpretations of neoliberal dogma, at once analytically ensconced on its playing
field and destructive of it at the same time.
Chapters 3 and 4 continue the story as the open access struggle moved to the national
stage. I seek here to recover the inconvenient arguments of advocates for open access as they
found support in local settings, only to find themselves stymied by the Federal Communications
Commission itself. The conflicts which ensued serve to illustrate how arguments asking for an
absolute divorce from ‘marriages of convenience’ with corporate players by radicals serve to hide
the ways discursive formations in the form of ‘dynamic/static processing’ take shape, or don’t.
The Mt. Hood struggle was, it turns out, the result less of entirely local initiative (although it was
that) than efforts by professional advocates to insert themselves in between warring corporate
factions. This was a deliberate strategy which used neoliberalism’s contradictions against itself.
of these interests ‘neutralizing’ each other. These accounts are reconstructed from trade press,
national and local newspaper accounts, documentation of argument wrought from the Internet
Archive, Federal Communications Commission records, and records from past conference
proceedings.
40
In the face of defeat at the Federal Communications Commission, and with incoming
FCC Chairman Michael Powell’s attempting to quash the debate once and for all. Chapter 5 shifts
to the salvage performed by Tim Wu’s introduction of the network neutrality concept. It
examines the arguments to which it responded, as well as the principal arguments which were
pitted against it. Here is an odd happenstance in which secondary literature ironically provides
exactly the insight necessary to tie the social history of network neutrality to the broader
neoliberal imperative. It was a necessary salvage, one that extended debate on the fate of
broadband communications networks, but was at the same time of a piece with a long-standing
neoliberal drive. Crucially, this is something quite aside from functionalist interpretations of
neoliberal actions and policy. The debate, not the actions of individual activists or activist groups,
collectively constructed a platform aboard which the drive could continue to develop while
eliminating contradictory elements left over from the open access debates.
Chapter 6 offers a view of the wreckage which resulted. It briefly provides an overview
of a new interpretation of the activities of the new “media reform” advocates—my old colleagues,
and to take full responsibility, myself—as a new form of neoliberal activism evolved:
importantly, a necessary one, one that advanced a simulacra of debate even as the debates are
necessary. These are the results and lessons of the paradoxes contained in the fights which
resulted and the formulation of a new problematic which, I am convinced, needs to be considered
going forward from a perspective seeking to advance justice.
This is to say, the transformation of the debate from one consisting of open access and
network neutrality into network neutrality itself held implications not just for the future of the
structure of broadband communications but for what these debates meant writ large. Network
neutrality was simultaneously not as simple nor as complex as the literature surrounding it make
it out to be. Advocates spoke their case in terms of competition, but their aims were far broader:
41
they were concerned not with competition for competition’s sake but with the function that these
networks would serve in terms of democratic norms going into the future, for social justice, as
well as for innovation. Thus this dissertation explicitly does not join the network neutrality debate
on its own turf by any stretch. It seeks the answers to a different set of questions, ones that have
less to do with media policy (although it is concerned with these) than with what media policy
and activism in this regard can show us about broader forces at work.
Several topics not covered as in-depth in the chapters that follow, but are significant for
fuller understanding of the issue, have been included in an Appendix. There I provide a basic
introduction to Internet networking—specifically, how the ‘layers’ model is implemented therein.
I also provide a brief backgrounder on important policy developments in the history of the
Internet and internetworking, from the FCC’s Computer Inquiries to developments wrought by
the passage of the Telecommunications Act of 1996.

42
Chapter 1: Toward a New Framework

There is an overall narrative to the network neutrality debate, one important to describe
as it is normally told and processed. The road to the Federal Communications Commission’s
Open Internet Order of 2010 usually begins in 2002, following the then-Michael Powell led
Federal Communications Commission’s passage of a Declaratory Order and Notice of Proposed
Rulemaking (FCC, 2002b) which is credited with setting the chain of events rolling. Responding
to exigencies stemming from convergent broadband technologies in the wake of the
Telecommunications Act of 1996, Powell sought to outright clarify that cable lines, regulated
differently than telecommunications wires (yet beginning to serve the same purposes), would not
be subject to the same “common carriage” rules to which telecommunications lines were subject.
In plainer terms, telecommunications companies were expected to supply nondiscriminatory
service to all comers—including emergent Internet Service Providers, which is why in the late
1990s and early 2000s thousands of such providers came into existence; in any particular urban
locale one could expect to have a choice among them. There were also consumer protections to
which these wires were subject: to facilitate connections outside a locale and to guarantee that
calls went through, telecommunications providers were required to interconnect with other
networks outside their region on reasonable terms. Under such and additional laws, the United
States found virtually all of its citizens connected to a telephone line, one that guaranteed access
to emergency services if necessary. When cable companies started to provide Internet service and
perform virtually all the same functions as telephone lines, ISPs sought the ability to ply their
trade over these faster wires: Powell’s order essentially meant that for no reason but regulatory
fiat—not technological impossibility—this would not be the case.
It is often noted that this was a brash move by Powell: not two years prior, the former
FCC Chairman, William Kennard, had issued a mere Notice of Inquiry into the topic as well.
43
Jumping straight to a conclusion without an official rulemaking that would allow public comment
on the proposed new rules was effectively ‘skipping steps’ in favor of the cable industry. ISPs
sued in a case that made it to the Supreme Court, and the Court in 2005 agreed with the cable
companies—not on the merits, but in deference to the FCC’s authority to make such decisions on
such technical and arcane areas ("National Cable & Telecommunications Assn. v. Brand X
Internet Services," 2005). The story calls attention to the split in the court that serves to reveal the
nonpartisan nature of the issue. The majority opinion was written by Justice Clarence Thomas,
while his erstwhile conservative colleague Justice Antonin Scalia wrote an absolutely scathing
dissent that remains perhaps one of telecommunications policy’s most entertaining reads, one
punctuated with pizza delivery and dog-on-leash metaphors lambasting his colleagues’ misread of
the situation.
With cable lines closed, telecommunications interests now were being regulated entirely
differently than their coaxial-fiber hybrid brethren. In the name of regulatory symmetry, and with
the Supreme Court supplying wind at their backs, the FCC then declared that telecommunications
providers may similarly consider their wires closed to high-speed ISP access except on
commercially negotiated terms, rather than the formerly ‘just and reasonable’ rates that law
required. This was done by declaring, like cable broadband service, that these services supplied
over DSL or over fiber connections were “information services,” which had none of the explicit
rules attached to telecommunications services in their respective section of the
Telecommunications Act. The removal of these services from consideration as
“telecommunications services” thus also removed many of the consumer protections, such as
nondiscriminatory interconnection on reasonable terms to other networks. One is quick to note:
the mere declaratory force of the FCC, not any reason specific to the technology itself, is what
wrought these changes. Independent Internet service providers, having lost their statutory right to
44
gain carriage over competitors’ plant, were now beginning to drop like flies, leaving consumers
with what amounted to a local duopoly—if they were fortunate—between the cable company and
the telephone company for broadband service.
The fear, raised years earlier but now finding itself with new urgency, was that those who
controlled access to end-users might just try to take advantage of the situation to favor or disfavor
content or applications if it meant that they could make extra bank doing so. There were
examples: despite Michael Powell’s efforts to “jawbone” emergent broadband operators to honor
“four Internet freedoms”—freedom to access content, to use applications, to attach personal
devices, to obtain service plan information—providers would test the limits of FCC wrath.
Madison River Telephone Company would block Vonage calls from reaching their ultimate
destination—this competed with their own services, of course—and the FCC admonished them
for it as an example.
As Powell ‘reclassified’ DSL as an ‘information service’ rather than a
‘telecommunications service’ he issued an informal Policy Statement which enshrined his former
‘freedoms’ into an at least slightly more formal manner. Consumers would be entitled to access
the “lawful content of their choice”; they were “entitled to run applications and services of their
choice, subject to the needs of law enforcement;” consumers were “entitled to connect their
choice of legal devices that do not harm the network;” and consumers were “entitled to
competition among network providers, application and service providers, and content providers”
(FCC, 2005). These, however, were offered only as principles and not rules, thus they would only
provide ‘guidance’ on future rulemakings. They were not binding in and of themselves. Despite
even these weak assurances for public interest advocates, Ed Whitacre of SBC, in a moment of
candor with a reporter from Businessweek, would not be able to help himself and affirmed
activists’ worst fears when asked about his opinion regarding such online upstarts as Vonage:
45

How do you think they’re going to get to customers? Through a broadband pipe.
Cable companies have them. We have them. Now what they would like to do is
use my pipes free, but I ain’t going to let them do that because we have spent this
capital and we have to have a return on it. So there’s going to have to be some
mechanism for these people who use these pipes to pay for the portion they’re
using. Why should they be allowed to use my pipes? …The Internet can’t be free
in that sense, because we and the cable companies have made an investment and
for a Google or Yahoo! () or Vonage or anybody to expect to use these pipes
[for] free is nuts! (O'Connell, 2005).

This is where most laypeople begin the tale if they followed the issue. The statement was
so outrageous that when advocates trumpeted his words (using his pipes, no less, to circumvent a
virtual news blackout on the issue) he may as well have thrown a not-quite-out cigarette into a
dry haystack. For the next five years, millions of Americans would pressure the FCC and
Congress to prevent the kinds of harms Whitacre presaged in his not-so-empty threat via a policy
going under the name “network neutrality.” It was understood, and sold, as the principle that
users and users alone should determine what services, content, applications, and equipment they
would use aboard the Internet. Those who provided Internet service should have no say in the
matter beyond technical details that had to do with managing their network. If network
congestion should occur, network providers should be expected to solve such problems not with
offers to carry some content or application provider’s content in a privileged capacity for a fee,
but to find nondiscriminatory ways of solving the problem instead, preserving what amounted to
a ‘best-efforts’ service in the background.
The multitude of Americans who united behind the clarion call of network neutrality
were of no particular political affiliation. This was a nonpartisan issue which involved the
combined efforts of the odd bedfellows MoveOn, various unions (albeit not the Communications
Workers of America), and the Christian Coalition. The tale often now shifts to a narrow Senate
46
committee vote that almost, but not quite—and against all odds—would have brought the
principle one step closer to being enshrined in law, forcing the FCC to enforce it. The teller is
rightly outraged when describing the way Comcast blocked its users from using the popular file-
sharing protocols BitTorrent, then spent months lying repeatedly to the FCC and the press as to
its doing so. Again against all odds, a true consumer victory was won in the form of an FCC order
forcing the company to cease its practice and institute nondiscriminatory means of dealing with
congestion. Illustrating how advocates had managed to ply the system against what would rightly
be considered headwinds, this occurred under a Republican FCC Chairman, Kevin Martin. The
story details the takeover of AT&T by SBC; it follows Verizon as it gobbled up long-distance
provider MCI—thus, for the first time since the early 1980s, local and long-haul networks united
once again under one corporate banner. Illustrating the organizing prowess of those fighting for
network neutrality, when SBC (now the “new AT&T”) purchased BellSouth, network neutrality
requirements were negotiated as part of the FCC’s granting of the merger. These have, of course,
long expired.
The action in Congress was intense during these years, and network neutrality became the
issue that sank bills or elevated them. In 2008, remarkably, this seemingly arcane issue found
itself in the spotlight as both parties took stands on it in the presidential election: due to popular
pressure and outcry, not only had the debate been extended long past what one would have
expected its expiration date to be, but it was actually being acknowledged as an issue that could
sway voters. It didn’t hurt that Google was the number three donor (behind Goldman Sachs and
Microsoft) to the Obama campaign, and at the time was an ally on the matter (Hart, 2011, p. 433).
The amount of money being spent by all sides to lobby on the issue was staggering. Obama’s
FCC, once in place and chaired by Julius Genachowski, issued the US’s first national broadband
plan and made numerous gestures toward resolving the network neutrality issue; in late 2009 a
47
Notice of Proposed Rulemaking was finally issued and a long wait then ensued. It would be a
year before an Order was issued, one that advocates found largely disappointing, if not
disappointing in its entirety. This is understating their feelings a great deal. The Obama FCC
largely hewed to the desires of the largest telecommunications and cable operators with weak
rules that at once announced their belief in ‘one Internet’ while dividing it into two: wireline and
wireless. Over wireline connections, operators would be prohibited from outright blocking
content and applications. They would similarly be disallowed from instituting ‘unreasonable
discrimination’ with the exception of an experimental category of ‘specialized services’—albeit
with some caveats that this should not be a hedge to sneakily use this category as a loophole to
discriminate. Finally, they would be required to disclose their policies when it came to
prioritization. Each of these provisions, advocates declared, held too many loopholes; there were
no real standards set or details announced; pay-for-priority deals were not expressly disallowed.
Wireless was treated as if it were a ‘new’ technology in need of protection from oversight until it
could develop: to these networks only the no-blocking and transparency rules applied. Despite
AT&T’s approval of these rules, Verizon would ultimately sue the agency. As of this writing, this
court case is about to commence.

Common questions

The tale is familiar, yet not: the common read of this entire happenstance is a yarn of
corporate greed versus the desires of ordinary people—only in this case, the people put up an
amazing fight and scored some terrific victories, even if advocates in the endgame called the
issued rules “fake net neutrality.” The account above is one similar to that offered by Hart (2011).
He is a political scientist, and the questions he seeks to interrogate are to be expected from his
48
discipline, but are generally the questions that are most often asked of this entire, admittedly
amazing (and ongoing) affair:

What are the main factors explaining the emergence of support for and
opposition to net neutrality guarantees? How are politics in this area related to
the broader debates over regulation and the role of the state in American politics?
To what extent did outcomes depend on which party controlled the White House
and/or Congress? How did the two main parties frame the issue? Was there
evidence that the political influence of Internet-based services such as Google,
Amazon, and Yahoo! was growing over time? Going beyond the struggle
between groups with differing interests, what role did considerations of the
broader public interest play in the debates (Hart, 2011, p. 419)?

I use Hart’s account less because there is so much wrong with such an approach as to
illustrate the massive erasure it rehearses, one found throughout the broader account of the
network neutrality story. This is in no small part because the arbitrary closure of Michael
Powell’s brash actions of the early 2000s seem an appropriate place to begin telling the tale.
Generally ignored or discounted are the initial, crucial fights where the terms of debate
were laid and during which the stage was set for the broader involvements to come with the
emergence of massive advocacy campaigns the popular Internet made possible in the early 2000s.
These were the debates swirling around the issue of “multiple ISP access” or “open access” over
broadband facilities to end-users. Should those who own the last-mile pipe to a house or business
be forced, like the dial-up telephone world, to permit numerous companies offering different
services and foci to offer Internet access service to these end-users? The blind spot surrounding
this issue strikes me as curious, and it turns out to be quite revealing when one digs into it. What
we do have from that time period is a voluminous (albeit not entirely unuseful) litany of business-
oriented accounts such as Malik (2003), Ferguson (2004), Handley (2005) and Goldstein (2005).
The focus of these accounts is often a critique of national policy regarding telecommunications
49
with a particular eye toward the dot-com bubble which popped shortly before Powell took over as
Chair of the FCC. Yet they do not speak to policy debates outside the combat waged by
telecommunications companies against both each other and against cable interests. Such accounts
describe massive miscommunication, misdirected objectives, misread investment decisions,
internal turmoil, overwhelming greed, and generally bad business decisions as root causes of the
crash to come. Yet these still commit dramatic acts of erasure: the debates over ‘open access’
which were still raging as Powell commenced his reign are largely treated as sidenotes, as
annoyances, as something which plainly did not matter much in the broad scheme of things.
Malik, for instance, largely dismisses the entire debate as a “giant hairball” predisposed to
astroturf tactics by opposing corporate interests (Malik, 2003, p. 153).
Outside the business literature, book-length attempts to outline in broad strokes the
nuances of telecommunications and media policy going into the new millennium still undervalue
this era. For instance, when Nuechterlein and Weiser attack the issue (2005), they acknowledge
an intense debate but it is largely constrained by boundaries of technology and policy details; the
frame is dominated by concerns of the constraint of monopoly power and broader competitive
concerns, paying little heed to others. The frame is certainly relevant, particularly given
Whitacre’s statement, but it is one that leaves out much that fed into the debates of the late 2000s.
Given the scope of their project, however, this is certainly understandable. This said, it is also
illustrative of how debate outside of Washington, DC in this arena was seen: a nuisance in itself
by people that just didn’t get it—a significant feature of the story I aim to tell.
Tim Wu, the originator of the concept of ‘network neutrality,’ has added to the story in
his own recent account, The Master Switch (2011b). While intended for a broad audience, and
hardly his most sophisticated work, he provides an overarching view of the history of
communications networks that he dubs “the Cycle:” decentralization giving way to
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monopolization, with such moves largely bringing increased ‘openness’ and ‘closedness’ in
respective tow. In the process, however, he largely (if surprisingly) discounts the open access
struggle of the late 1990s, focusing instead on the failed marriage of AOL and Time Warner as a
business relationship. The failure to integrate is given one (somewhat clumsy) cause: “the
Internet.” He concludes that multiple ISP access over cable networks of the kind advocates fought
for in the face of efforts by emergent cable broadband providers to create their own ‘walled
gardens’ for users was simply and plainly technologically unsustainable given the exigencies of
this new technology. Granted, he has also shifted his own view in his recent account, seeking a
more informal ‘separations principle’ that is, perhaps, a ‘soft’ version of structural separation
regimes, not so far afield from ‘open access’ principles advocates sought. Thus even the creator
of the concept of network neutrality has committed his own form of erasure. It will be, it turns
out, on several levels.
The sheer effort that has been expended in ‘forgetting’ this episode points to its
importance in US broadband history. A quite recent example is Thomas Hazlett and Joshua
Wright’s lambasting of the FCC’s 2010 Open Internet order. They go to extraordinary lengths to
wipe consumer advocates from history and replace their actions with the much simpler acts of
‘market forces.’ In examining broadband uptake data over years comprising the ‘natural
experiment’ of deregulation and observe that despite the closing of networks to competition,
broadband adoption continued apace, they conclude, “The implication of the evidence is that U.S.
consumers responded very positively to policy choices that refrained from imposing ‘open
access’ or eliminated such rules once in place” (Hazlett & Wright, 2011, pp. 77-78). This
conclusion is blinded by its tautological nature: as access to the Internet has become more and
more important and ingrained in ordinary Americans’ lives, one doesn’t choose to gain access to
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a closed network; one chooses to gain access, by whatever means available, to the Internet itself.
Left out of the inquiry is the nature of the Web on offer.
This was the debate that never happened in open view (and one network neutrality
seemed to address but did not): the broad discussion that should have occurred regarding the
purpose to which the Internet should be put. This project is an attempt to get at the ways
advocates attempted to reinstate such a debate on the national scene, and the manner in which
their own efforts were turned against them. Speak with advocates working the policy circuit in
Washington, and they will tell a similar story to that Hart told, but draw a bright line shortly after
the Supreme Court decided in its Brand X decision that the FCC’s decision to ‘reclassify’ cable
broadband networks as ‘information’ services themselves when the landscape shifted. The focus
then turned directly to this thing ‘network neutrality,’ even as this issue and that of ‘open access’
had coexisted for several years. Tim Wu had concocted the notion of ‘network neutrality’ because
he feared that open access solutions of the ilk consumer advocates were proposing still would not
get at some of their concerns regarding the possibility of oligopolistic last-mile services
discriminating in harmful ways against certain forms of content and applications. What is key
with this ‘bright line’ is that not only did debates switch to network neutrality rather than open
access, but the sides were already decided and largely ceased to move on even the issue of
network neutrality from that point forward, with minor exceptions. From 2005 until the release of
the Open Internet order a cottage industry of publication regarding ‘open’ and ‘closed’ networks
emerged, as was explored in the Introduction. The legal and academic literature, on the surface,
appears to increase our understanding of broadband networking, double-sided markets, and more.
To be sure, numerous new features required deep thought. To read this literature as such does
offer several lessons and can be enlightening. From my perspective, however, this literature is
read as something completely different and leads to a far starker place: taken as event and
52
examining what kind of labor this literature performed during that time, advocates seeking social
justice will find that the task ahead is larger than they imagined. Even with the immense growth
of corporate power as a sector, this remains only a small part of the picture with which activists
will need to contend. This is truly one of those moments where, in an academic twist, the
secondary literature becomes, in fact, primary.
A grand war of maneuver was waged which garnered a significant amount of press
attention and public outcry that exceeded even what was reported. The irony is that this outcry
masked the actual stasis which lay underneath: the years considered most intense in the struggle
for network neutrality were, in a broad historical irony, the most staid. Arguably, in the long
view, they were possibly the least significant. In the short view, the possibilities of new forms of
massive online organization made themselves known; these have received a tremendous amount
of attention (and critique), and rightly so—they were important in their own right.
The beginnings of a broader critique, the kind that is erased by the likes just described,
must take into account what Foster and McChesney (2011) call the Internet’s “unholy marriage to
capitalism:” that is, the effort aboard it to seek out new opportunities to create scarcity and thus
opportunities for profitmaking. More broadly, these efforts seek to draw the Web more closely
and in new and surprising ways into the sales effort (see also R. W. McChesney, et al., 2009).
Turow (2011) tells of the mechanics of the long-established and deepening gears of the online
sales effort, and Vaidhyanathan (2011) provides similar service; yet it is striking that the notion of
hypercommercialism—one of the original key tenets of the nascent resurgence of the media
reform movement in the early aughts (expressed in stark form in R. W. McChesney, 2004) is one
of the features network neutrality sweeps under the rug. With open access, ironically, this was not
the case.
53
Such features of our neoliberal times include exactly such “accumulation by
dispossession,” a name Harvey (2005, pp. 177-178) gives to new forms of primitive
accumulation, this form “fragmented and particular—a privatization here, an environmental
degradation there, a financial crisis of indebtedness somewhere else.” If the web has created
antidemocratic outcomes—or at least has, upon examination, been miscategorized as a ‘public
sphere’ proper (Cammaerts, 2008), then a shift to examining the political economic forces
shaping it might get us further; yet somehow this remains shunted to the side. It is showing signs
of being revisited—McChesney seeks to address this problem in his most recent volume Digital
Disconnect (R. McChesney, 2013). There, he perhaps expresses the quandary the clearest. He
argues that attacking the broad problem of media reform and broadband policy itself, by
necessity, one must challenge the entire core economic structure of modern-day, ‘actually
existing capitalism.’ Given information technology accounts for 40 percent of nonresidential
private investment in the US (p. 222), “quadrupling the figure from fifty years ago,” and that
“Internet-related corporations now comprise nearly one half of the thirty largest firms in the
United States in terms of market value,” he concludes, “If one challenges the prerogatives of the
Internet giants, odes to the catechism notwithstanding, one is challenging the dominant
component of really existing capitalism” (R. McChesney, 2013, p. 222). He continues:

In my view, efforts to reform or replace capitalism but leave the Internet giants
riding high will not reform or replace really existing capitalism….[T]he Internet
giants are not a progressive force. Their massive profits are the result of
monopoly privileges, network effects, commercialism, exploited labor, and a
number of government policies and subsidies. The growth model for the Internet
giants, as one leading business analyst put it, is ‘harvesting intellectual property,’
i.e., making scarce what should be abundant. The entire range of Internet and
media issues must be in the center of any credible popular democratic uprising.
Given the extent to which the digital revolution permeates and defines nearly
every aspect of our social lives, any other course would be absurd (R.
McChesney, 2013, p. 223).

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This current (or, at least, a less radical version of it) was never absent by any stretch, but
it seemed to figure little in Washington policy debates. Quite juxtaposed to the rhetoric of
‘freedom’ and ‘competition,’ Schiller (2000, 2007) proposes that the defining problem regarding
telecommunications networks in general—both domestic and international—is the hollowing-out
of telecommunications infrastructure of public interest purpose. “[I]t cannot be emphasized
sufficiently that this ongoing shakeup of the supply end of the telecommunications industry
comprised a strategic response to a profound shift in demand. Corporate users of Internet systems
and services never lost their primacy within the wider metamorphosis” (Schiller, 2000, p. 35).
Further,

“The core of the older public-utility telecommunications system is being
hollowed out. Selectively bypassed by major corporate users, the existing system
is being attacked for different reasons by big local-exchange carriers, cable
system operators, Internet service providers, and other purveyors of new services,
from voice-over-Internet companies like Vonage to makers of video-game
consoles possessing Internet capabilities. Traditional forms of rate regulation and
long-standing strictures of common carriage have come under fierce pressure
from carriers and new industry participants demanding to supplant them with
privately negotiated contracts for pricing and service” (Schiller, 2007, p. 92).

For Schiller, it was always a fiction in political-economic terms that data, which would
make increasing use of computer networks, were somehow ‘separate’ from that which lay
beneath: a collective process of liberalization that was “embraced first and foremost as a reflex of
political intervention by leading banks, insurance companies, retail chains, automobile
manufacturers, oil companies, aerospace firms, and other corporations, all of which sought to
reorganize their business operations around networks” (Schiller, 2000, p. 7). Network enterprises
and network states comprise relatively new features (Castells, 2009), requiring the growth of
internetworked technologies to manage them. Even as network technologies have been necessary
55
to the cinching-tighter of geographic expanse, emergent transactional imperatives as high-speed
trading require the cinching-tighter of temporal span, to unfathomably tiny fractions of a second
as money works to transform itself into more money with no intermediary production ‘step’
(Hope, 2006, 2009). One of the reasons that the likes of Goldman Sachs initially profited so
handsomely in the midst of the present crisis stems exactly from its mere ability to conduct
transactions faster than others, enabling it to cash in on arbitrage opportunities before the rest of
the market could catch up. These moves happen in the telecommunications shadow-regions of
‘special access’ transactions, and one wonders about such applications’ use of the ‘specialized
services’ carve-out in the emergent Open Internet order of 2010 which falls outside the new
regime of “openness.” One could argue that the recent petition filed by AT&T to request a move
to all-IP networking—with the regulatory release that would entail—is this logic taken to its
natural end.
Advocates who were integral to the fights of the late aughts, in summing their difficulties,
tend to lay blame at the feet of Congress for the vagaries of the Telecommunications Act itself
(Ammori, 2009). But to put a heavy dose of blame on a ‘vague’ Telecommunications Act for
unnecessary uncertainty in this sector is to miss the point, as the prime object was not some
coherent set of rules at the time, but rather broader liberalization within the telecommunications
sector itself, period. At the behest of powerful users of telecommunications networking
capability, the U.S. government in the late 1990s was using venues as the World Trade
Organization and beyond to seek further liberalization of these services (see R. McChesney &
Schiller, 2003). In a document commissioned by then-FCC Chairman William Kennard but in
consort with regulators from around the globe entitled Connecting the Globe: A Regulator’s
Guide to Building a Global Information Community, this set of ‘best practices’ extolled
‘privatization, liberalization and competition’ throughout the communications marketplace,
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‘deregulation as competition develops’ with goals of ‘universal access to communications
services and technology’ and ‘opportunity for underserved communities’ featuring subsidy
schemes that are ‘targeted, explicit and competitively neutral’ (FCC, 1999a). What this meant, of
course, remained to be decided. This undecidability at the time would be significant; but the
undecidability only lay in which capital formation would benefit the most, not in any lack of
clarity or vision.

Presence in absentia

‘Open access’ is present via its absence in the later debates; it both figured, and did not,
in impending network neutrality debates of the late 2000s. Instigated and waged by an incredibly
small number of core groups in Washington, DC—primarily Consumers Union, the Consumer
Federation of America, the Center for Media Education, and the Media Access Project, but in
consort with others—and up against terrific odds, these actors were able to take advantage of
inconvenient facets of the (neo)liberalizating aims of the Telecommunications Act of 1996: that
is, the battles which ensued were effectively neoliberalism at war with itself as capital formations
struggled for dominance. Consumer advocates were precisely able to engage the struggle thanks
to strategic alliances that on the surface were hardly anti-capital. These ambivalent positionings
arose from the belief that individuals should benefit from the same competitive drive that the
broader business community sought, albeit to different ends. So even while on the one hand this
seems not to advance the cause of considering the broader systems that drive the rollout of these
technologies, the manner in which the struggles were conducted, and what transformed them at a
core level as the battles wore on, reveals a great deal about the continuing liberalizing process
itself, given tailwinds in the late 1990s and emerging from the tech bubble burst in the early
57
2000s with intensified force, and how it was itself sustained behind activists’ backs. It is a
political act at a remove to write these actors back into existence for this reason alone. Doing so
shifts how we view the network neutrality struggle to follow. One of the paradoxes giving this
dissertation its name is that in the end, it turns out to be more enlightening to examine that period
which preceded the intense public struggles that comprised the network neutrality debates,
significant as they were. The more deeply one looks at the network neutrality debates, the more it
appears that it contained its own ‘suicide gene’ deep within its DNA.
The ability of the broad systemic critique of the commercialization of broadband
networks itself to slip past all concerned in the network neutrality debates (or be covered more
obliquely) in favor of arguments about innovation, about individual freedom and consumer rights
signals significant implications and new problematics. It is an historical irony that advocates were
able to sustain the debate as long as they did and with the visibility they did, taking advantage of
novel circumstances and the newness of organizing techniques online. Perhaps an adjoining irony
is that while advocates were battling one form of control, another was busy settling in, and cared
not a whit under which regime it would need to settle.
The effectiveness of these advocates during the open access debates stemmed from their
turning of a diverse discourse into a heterogeneous one. The network neutrality debate, once
engaged, effectively reversed the process in a historical accident (which, at the same time, was no
accident). By these terms, I intend them in the sense supplied by Laclau (2005). Here, he
reinvigorates his vision of ‘radical democracy’ developed initially in Laclau and Mouffe (2001).
Their critical conception of ‘heterogeneity’ is useful for our purposes here:

Heterogeneity, however, does not mean pure plurality or multiplicity, as the latter
is compatible with the full positivity of its aggregated elements. Heterogeneity, in
the sense in which I conceive it, has as one of its defining features a dimension of
deficient being or failed unicity. If heterogeneity is, on the one hand, ultimately
58
irreducible to a deeper homogeneity, it is, on the other, not simply absent but
present as that which is absent. Unicity shows itself through its very absence….
[T]he result of this presence/absence is that the various elements of the
heterogeneous ensemble are differentially cathected or overdetermined. We have,
however, partial objects that, through their very partiality embody an ever-
receding totality. The latter requires a contingent social construction, as it does
not result from the positive, ontic nature of the objects themselves. This is what
we have called articulation and hegemony. We find in this construction—which
is far from being a merely intellectual operation—the starting point for the
emergence of the ‘people’ (pp. 223-4).

“Difference” marks for Laclau a closed ‘space’ for politics, one easily managed.
Diversity is the ‘death’ of politics; once all have been named, ‘taken into account’ (see, too,
McRobbie, 2004) they need only be accommodated by overarching systems; the game is over.
Heterogeneity hints at a pervasive sense (or dread) that the positions available are hardly
exhaustive: the horizon of possibility is not clear. Decisions and judgments are rendered difficult,
if not impossible, in such an environment: politics proper can thus continue. Once the horizon
becomes visible, once bounds are clear, politics ends and positions are all that remain.
Importantly, it is the perception of either which is paramount. The ‘radical democratic politics’
envisioned by Laclau and Mouffe fights against the closure ‘diversity’ offers. Laclau, in his most
recent formulation, invites us to examine entire systems themselves as envisionable by their own
constitutive discourses, as systems comprised of articulated elements juxtaposed against one
another, importantly with an absence which has not yet made its presence known. What network
neutrality would do, ironically enough, is to admit exactly this type of closure. In such a
situation—in which the terms are foreclosed—what consumer advocates were able to accomplish
during the open access debates which would be rendered much more difficult, if not impossible
for them to do when the fight switched completely to network neutrality.
The work required to sustain such efforts—to sustain heterogeneity or to foreclose it—
requires material resources. The success of advocates during the open access debates to instill this
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heterogeneity is illustrated by the manner in which they are forgotten by the likes of (largely)
evenhanded (if counterframed) accounts as Nuechterlein and Weiser (2005). The problem is
solved by ignoring their efforts entirely. The easy ability to commence the story of network
neutrality with Powell’s brash actions in the early 2000s, as Hart did (and even activists are prone
to do), thus reducing the story to tactics of maneuver over the former war of position is, in Marx’s
words, to reveal “both the strengths and the weaknesses of the kind of criticism which knows how
to judge and condemn the present, but not how to comprehend it” (Marx, 1990, p. 638fn648). The
framework I have described with which to examine the transition of open access into network
neutrality is not merely as historical happenstance but is part of a broader pattern. The lessons to
be learned from the concept’s development are both surprising and enraging.

New background

As is all too plain in the realm of global warming, knowledge itself has become one of
the chief pawns on the strategic board in politics: less in terms of determining truths than in
determining whose views should be present when the major decisions are decided. The networks
of economists who derided both open access and network neutrality policies may believe that
they are influencing policy: yet one of the surprises of the network neutrality debate, and one of
the things that it signals about our age, is that their ‘findings’ hardly matter. It was merely these
players’ involvement in instilling a particular mode of processing the debate which mattered.
These are two different things, and this one of the reasons it is so difficult to actually size up the
quality or value of “contributions” to the network neutrality debate when one is taking in the long
view.
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The emergence and transformation of the open access debate into one exclusively about
network neutrality is both a story of an emergent political ensemble as well as the fruits of a
particular epistemic regime, materially sustained. A kind of reflection in this regard has
commenced in the academy in exactly this regard. Streeter (2011) discerns in discourses
surrounding the Internet and its development a persistent strain of romanticism of long vintage,
and he offers a warning: “It is [a] habit of understanding freedom negatively, blindly, as freedom
from government, freedom from dependency, freedom from others, that helps set the conditions
for the popularity of the rights-based free market” (p. 13). His interest is not, ‘What is the effect
of the internet on society?’ but ‘How has the Internet been socially constructed and what role has
that process of construction played in society?’ Further, even more important sets of questions
include, “[H]ow have various shared visions, even the inaccurate ones, shaped policymaking
around the Internet? How have they shaped its construction and, therefore, its character, its role in
social life? How have culture and policy interacted to make the Internet what it is?” (pp. 8-9). In
reality, his conception is not so far afield from Sum and Jessop’s notion of “cultural political
economy” mentioned previously.
Streeter’s emphasis is on the cultural meanings created by technology and how forces
like the media reform movement have served to impact it: “The technology of the Internet is not
inherently democratic, but interesting and rich experiments in how to do democracy have
happened so frequently on the Internet that we have come to expect them there and have been
building that expectation into its legal regulation and underlying code base to the extent that it is
now a tradition” (Streeter, 2011, pp. 186-187). Perhaps the most crucial element of Streeter’s
analysis for our purposes here is his concern that activism surrounding the Internet has been
ensnared in exactly this mode of thinking. To diagnose the problem, he points directly to one of
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the most prominent voices on the subject of network neutrality and open access, Lawrence Lessig
(see, e.g., 2002), contrasting his thought with that of James Boyle:

If Boyle was calling for his readers to abandon an obsession with the abstract free
individual and start thinking more complexly about the social conditions that
support innovation and culture, Lessig presented the choice as a simple, stark
one: Lessig titled one essay, ‘An Information Society: Free or Feudal?’ While
standing alongside Boyle in attacking the libertarian notion that markets and
private property are the sole guarantors of freedom, Lessig seemed to concede to
the libertarians one thing that Boyle did not: the idea that freedom itself is a
simple condition, an absence of constraint, the ability of individuals to do what
they want, especially to express themselves, to engage their creativity. Boyle
approached the romantic ideal of individualism skeptically. Lessig embraced it
(Streeter, 2011, pp. 163-164)

In his view, the likes of McChesney and Lessig (and the broader pro-network neutrality
forces writ large) make appeals to a reification of a particular configuration of technology as ‘the
way it should be’ thanks to its inherent democratic possibility. For Streeter, this is flawed. The
technological arguments lauding end-to-end for network neutrality rest, he argues, on a “frail
foundation”—that is, it reads “political morality tales” into technical successes, a reappearance of
this ‘romanticism,’ that “as often as not have dissolved under the weight of experience” (Streeter,
2011, p. 184).
There is much to admire in Streeter’s observations. This said, I do fear that he doesn’t
take the network neutrality debate seriously enough. Not because I believe he ignores the
potential of particular formations of capital to constrain online activity, to restrict access to
communications technologies, and to colonize whatever benefit users obtain from connectivity:
rather, he leaves the story off where it needs to continue. Streeter’s earlier assessment of the
inside debates within Washington, DC, addressed via his discussions of discursive communities
with their own rules and interests in his older text Selling the Air (1996) perhaps come closer to
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the mark in regard to what is going on: the connection between the two arguments needs to be
made.
I argue here that these discourse communities ride aboard an epistemic substratum which
itself must be addressed in its own terms. This substratum is hardly the driver of policy: but it
slicks the way for policy to happen, often divorced of the content of this substratum entirely. One
of the paradoxes of the network neutrality debate is that I fear it inscribed a particular
‘epistementality’—think, here, of Foucault’s governmentality extended to a new register—all the
more deeply upon the American psyche. When Streeter shunts aside McChesney and Lessig’s
concerns, it too shunts aside the case that this thing/event ‘network neutrality’—as an ensemble,
the arguments both for and against and the manners in which they engaged—met the emergent
needs of capital quite cleanly. That reason alone is reason to be concerned, one level removed
from the arguments for or against its imposition. What Streeter doesn’t address is the material-
epistemic formation of this new controlling form of thought in the guise of what amounts to a
platform for debate.
The struggle for network neutrality in the United States on the surface seemed to mesh
well with the goals of a vibrant free press and diverse forms of expression and experimentation; at
the same time, it fed in the material and cultural manner it was fought into the continued
constitution of what autonomist theorists have termed the “social factory.” This theoretical
construct posits a world in which everyday efforts and activities are not so much colonized by
capital interests than channeled to capital’s benefit; despite this quandary, the network neutrality
debates were both necessary and essential for the preservation of continued diverse expression
aboard the newly dominant medium of our age, even as they inscribed more deeply a power
structure that finds new ways to incorporate lived experience into profitable revenue streams. The
Internet is one such vehicle; as Turow (2011) documents, actions aboard this vehicle are
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increasingly combined with those off of it, all put exactly to such channeling, sold into global
capital flows in zero-sum games or into the machinery expanding the sales effort.
2
As efforts
contained in Fumagalli and Mezzandra (2010) and Negri (2008) make clear through concepts of
the “communism of capital”—the channeling not only of individual neoliberal subjects’ identities
and actions, but their savings as well, put to the use of broad financial interests to their own
ends—entire ways-of-being, accumulating, and living have become fodder for the capitalist
system to continue to grow, if out of increasing desperation. It makes perfect sense that one of
Google’s chief executives recently arrived in North Korea pressing for “Internet freedom” there
(Connor, 2013). In the global arena, pursuing “Internet freedom” ambivalently serves the
coordinating needs of capital and finance as well as the desires of individuals to communicate and
coordinate their own activities—the price of admission for new entrants amounts to the
conscription of new populations’ activities and identities to Google’s databanks and beyond.
Control in today’s age, as scholarship increasingly is at pains to show, is less about overt
constraint than it is about ‘nudging’ and valuation of marketing targets (Cheney-Lippold, 2011;
Turow, 2011). “Internet freedom,” emergent from the network neutrality debates, itself needs to
be viewed and re-evaluated in this light: individual freedoms online exist uncomfortably next to
the extant desires of capitalist expansion, or, really, redistribution; and this is to put aside the
material consequences of increased use of such technologies such as e-waste, the transformation
of local economies by the building of server farms or warehousing, and beyond (Maxwell &
Miller, 2012).
The irony is that in the end, once the debates calcified around 2005 and 2006, it is quite
possible that network neutrality as a debate turned out to be one of those channels itself, one
necessary to sustain, one necessary to fight, yet one that enabled in the background, behind our

2
For an early take on broadband, see Terranova (2000).
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backs, for the overarching sales effort at its core to expand in new and dynamic ways—often
antidemocratic. This bears reiteration. The efforts to “Save the Internet” by the end of the
proceeding went well beyond freedom of speech. It had become about the defense of a particular
mode of life, and one rushes to note that this is not of a particularly romanticist notion. Hearn’s
(2008) description of the neoliberal self, and the observation of autonomist scholars who argue
that today’s forms of production and labor are “progressively ‘articulated’ in (and commanded
by) valorization and accumulation processes of capital that function according to a logic that
differs from ‘industrial’ logic” (Mezzandra, 2010, pp. 11-12), lead one to conclude that the urge
to ‘save the internet’ was much about communities ‘saving themselves’ as much as it was about
any right to free expression. The irony may be that the mechanisms by which this activism was
undergone may have served to entwine activists even more tightly into a set of systems against
which they were struggling. As Streeter notes, big ideas, such as the perfection of markets “or an
enthusiasm for digital democracy, are sometimes brought in to help individuals account for and
connect their everyday experiences with machines to life as a whole rather than the other way
around” (Streeter, 2011, p. 7).
This requires us to rethink the constitution of network neutrality itself, stepping back into
debates long-thought settled, over with, irrelevant. The unifying thread throughout our story is
explored by Banet-Weiser (2012) in her identification of exactly this form of ambivalence in
today’s consumer capitalism, the necessity of the fight even as a necessary entwinement
occurred. How Banet-Weiser handles the corporate-power versus consumer power angle is
productive: rather than seeing the struggle as one for or against capital, analysis should rather
seek to explicate the ambiguities and ambivalences involved. “Concentrating on individual and
corporate uses of power…obscures the ways in which other entangled discourses in culture are
deeply interrelated within it. …[P]ower does not always work in a predictable, logical way, as
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something either corporations or individuals can possess and wield. Power is often exercised in
contradictory ways,…often holding possibility for individual resistance and corporate hegemony
simultaneously” (Banet-Weiser, 2012, p. 12). A “nostalgia for authenticity” which posits cleaner
struggles simply hides more than it reveals.

Knowledge, and its material buttress

Knowledge, in the last decade, has received renewed interest in the communications
policy world. Braman (2003) performed yeoman’s work in assembling a broad set of articles
regarding communications-oriented research in policymaking. Napoli and Seaton (2007)
themselves note three trends: “the growing importance of empirical research to public
policymaking, the increased reliance of policymakers on externally-conducted research, and the
increased privatization of the key data utilized in policy analysis” which “contribute to a growing
imbalance that can undermine effective and representative communications policymaking” (p.
330). In particular, their concern is the increased collection of data of public importance by
private firms whose rates or practices render their information out of reach to many. Utilizing the
FCC’s 2003 loosening of media ownership rules as a case study, they take special note of the
difficulty that public interest players faced in attempting to obtain access to proprietary data
necessary to make their case. Ultimately, protection orders required researchers to use data on-
site under time and other constraints. From this study and their overview, they make several
recommendations. While laws as the Data Access Act and Data Quality Acts address publicly
created data, the fact of the matter is that private sources are more important today: the FCC
should actively collect data, in their view, perhaps even taking up the suggestion of the likes of
Thomas Wolf’s 1983 proposal to have a ‘data collection agency’ which collected such
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information but did not necessarily perform analysis on it. “Such an approach would be
particularly desirable in that it would allow for a better tailoring of the data being gathered to the
nature of the policy issues generally requiring attention. This would stand in stark contrast to the
contemporary situation, in which data gathered to serve entirely different needs (i.e., the needs of
communications firms, investors, and advertisers) are essentially 'repurposed' to address policy
questions” (P. Napoli & Seaton, 2007, p. 323). In short, they desire data collection done free of
market imperatives. Similar to a plea made by Napoli earlier in the decade (2001), all here seek to
involve more communications scholarship in the policymaking process. Free Press itself for a
time attempted to create an ill-fated “brain trust” of communications scholars in the middle of the
aughts, and several communications departments teamed up to send graduate students to
Washington so as to encourage such engagement (Newman, 2009).
None, however, have approached questions of policy, particularly a policy as critical as
the operation of broadband networks, from the standpoint of the historical and material
constitution of knowledge formations: a political economy of knowledge-formation, so to speak.
This is a critical point because taken as an artifact, the production of the network neutrality
debates themselves have much to tell us about challenges activists face—why they faced such
disappointments in the Obama Administration despite every indication that this administration
shared their views. Policy and activist battles of the late aughts are imbricated in the neoliberal
project: and ‘project’ is the correct term. In terms of a particular mode of ‘governmentality’ in the
abstract, Foucault’s (2008) relatively recently published lectures from 1978 to 1979 provide
initial insight. Foucault rightly recognized in the epistemic content of neoliberalism a constructed
manageability out of chaos: the neoliberal “Homo aeconomicus is someone who is eminently
governable,” as compared to the Homo aeconomicus of classical liberalism which “basically
functions as what could be called an intangible element with regard to the exercise of power” (p.
67
270). Such insight leads us away from the trap of confusing the marketing of the orthodoxies or
the stances of powerful capitalist interests via think tanks and “bought research” for their
constitution. I am careful to heed the warnings here of Harvey (2005) that the broader regime that
surfaces is not simply “an example of erroneous theory gone wild (pace the economist Stiglitz)
or a case of senseless pursuit of a false utopia (pace the conservative political philosopher John
Gray)” (pp. 152, 159). The development of the broader system’s theoretical underpinnings
matters and has its own materiality: network neutrality does not exist in a vacuum, a simple
matter of corporate power versus the people. These undercurrents have everything to do with how
its emergence and transformation out of open access took place, if indirectly yet effectively via
the construction of a platform aboard which these debates would happen.
Fortunately, these currents’ material origins have commenced being traced. Whereas
Foucault spoke of the development of neoliberalism in the abstract and points toward many of the
same roots (such as the emergence in Germany of a particular brand of Ordoliberalism rightly
seen as a fellow-traveling thing to what would emerge), Dieter Plehwe (2009), joined by Philip
Mirowski and numerous other collaborators, sought to shift understanding to the actual
production of knowledge itself surrounding neoliberalism. Mirowski, an economic historian, and
a member of the diaspora of the now-disbanded heterodox program at the University of Notre
Dame—this closure itself an indication of the times we occupy if there ever was one—has done
work that fills a gaping hole in communications research that begs to be built upon. “[I]t is not
enough to rest satisfied merely pointing at the seemingly potent generic political power of
economic ideas, as did both John Maynard Keynes and Friedrich Hayek,” he writes; one needs to
“better understand the political and economic power of neoliberal ideas as they nave played out in
philosophy, economics, law, political science, history, sociology, and many other disciplines”
(Mirowski, 2009, p. 433). As opposed to defining neoliberalism as merely a concrete set of
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principles—or worse, conflating it merely with neoclassical economic theory itself—it needs to
be viewed as a project of a loosely-bound thought-collective with a set of epistemic commitments
rooted well beyond economics, reaching into politics and even science.
As a means of providing one particular ‘nucleus,’ these authors use the emergence of the
Mont Pèlerin Society as one particular “Rosetta Stone” to ‘translate’ the workings of the
neoliberal project as it grew. They are not reductive when they do so. While institutions are
important for the spread of ideas,

“Unlike previous histories of ideas, and taking a page from [Friedrich] Hayek’s
playbook, we have offered an account that strives to understand the fortification
of the power of ideas through integration of highly dispersed knowledge
capacities within a neoliberal international academy. Whereas leading neoliberals
denied any possibility of mere mortals outcompeting the market as processors of
highly dispersed knowledge, their own efforts succeeded in constructing and
deploying elaborate social machinery designed to collect, create, debate,
disseminate, and mobilize neoliberal ideas. By doing so, they greatly advanced
the understanding of a modern reengineered division of intellectual labor with
proper roles assigned to academic and other professionals, in what amounts to a
new technology of persuasion” (Mirowski, 2009, p. 432).

The Society was, really, an ingenious use of the style of “propaganda” espoused by the
likes of Edward Bernays (2004 [1928]): a broad effort to shape the broader environment to create
a reality that, naturally chosen by the populace, would create the new ‘good’ society. In the same
way that Schiller (2007) notes that technological convergence was an agenda before it became a
technological reality, the precepts of neoliberal thought were wide-ranging and a calculated
response to trends that certain business interests found threatening.
In examining new archives of correspondence between members, funders, and fellow
travelers, numerous important details fall out. While organized by capital concerns in consort
69
with academic interests, this was no attempt to dogmatize academia: they saw mutual cause in the
development of wide-ranging theory to confront, at a theoretical level,

“both socialist planning philosophies and classical laissez-faire liberalism, rather
than searching for timeless (essentialist) content. …It was flexible in its
intellectual commitments, oriented primarily toward forging some new doctrines
that might capture the imaginations of future generations. At various junctures,
this might involve unexpected feints to the left as well as to the right” (Plehwe,
2009, p. 14).

The group was drawn from multinational sites of origin: any notion that neoliberalism
was “made in the USA” is patently incorrect. The movement was hardly anti-union, at least at
first; until the mid-1950s, a majority of the Society considered arrangements between employers
and trades beneficial: unionists should be educated as to the advantages of the “free society”
being conjured. Only in the late 1950s would this start to change.
The development of the Chicago School of economics which would become so central to
legal and antitrust thought over the coming decades was of a piece of the nurture of the Society.
The first meeting of the MPS, Mirowski and Plehwe note, was intimately connected to the
development of the school. Friedrich Hayek “provided both the intellectual impetus and the
organizational spadework for the Chicago School and the MPS” as corporate funds were raised in
Europe by Albert Hunold while the Volker Fund played a similar role in the US (Van Horn &
Mirowski, 2009, pp. 158-159). The funders

“were not merely pecuniary accessories to the rise of the Chicago School: they
were hands-on players, determined and persistent in making every dollar count,
supervising doctrine as well as organization….[A]ll and sundry dependent on
Friedrich Hayek to keep the project on an even keel: no one else on home ground
seemed to possess as much intellectual gravitas or deft punctilio as Hayek” (Van
Horn & Mirowski, 2009, p. 157).
70

Hayek and the Volker Fund recognized it was hardly enough to expect the field of
economics to shift itself from within, turning to “professional problem-solvers” who were
“scrupulously detached from active politics and from factional affiliations [who would] subtly
and unobtrusively guide or arbitrate political debate by their own discussions.” The aim was not
to “revive a dormant classical liberalism” so much as it was to “forge a neoliberalism better suited
to modern conditions” (Van Horn & Mirowski, 2009, p. 160). They sought, really, the production
of an American version of Hayek’s The Road to Serfdom. What they got was Milton Friedman’s
Capitalism and Freedom.
While viewed with interest and prodded on by these business interests, the ideas
developed organically. The funders saw the development of a philosophy supporting their vision
of a free market friendlier to this age’s liberal context as an “elegant, sophisticated statement of
their world-view” (Phillips-Fein, 2009, p. 282). The relationship between funder and funded
could be bumpy, of course—at times the MPS would be seen as insufficiently supportive—but
they saw their mutual usefulness. It was an initiative wrought of a desire to draw in different
approaches to the broader project, enabling cross-fertilization. The founding meeting was
populated with professors, journalists from Fortune and Newsweek, foundations, think tank
executives, business executives, publishers of Readers’ Digest. By 1981, political figures would
be included as well (Plehwe, 2009, p. 21). “The architects of the neoliberal thought collective
have carefully connected and combined key spheres and institutions for the contest over
hegemony—academia, the media, politics, and business” (Plehwe, 2009, p. 22).
The loose collective that emerged harbored “essential points of convergence,” even as a
plurality of opinions surrounding these points existed. Such diversity was actually their strength,
however, in their propagation (Steiner, 2009, p. 196). The starting point of this emergent group is
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that the conditions of their vision for the ‘good society’ would need to be “constructed and
[would] not come about ‘naturally’ in the absence of concerted political effort and organization”
(Mirowski, 2009, pp. 434, emphasis his). This said, they did agree that “for purposes of public
understanding and sloganeering, market society must be treated as a ‘natural’ and inexorable state
of humankind. What this meant in practice is that natural science metaphors must be integrated
into the neoliberal narrative. It is noteworthy that MPS members began to explore the portrayal of
the market as an evolutionary phenomenon long before biology displaced physics as the premier
science in the modern world-picture” (pp. 435-436). Because of the need to design this
eventuality, the state must be redefined, not destroyed.

“Neoliberals thus maintain an uneasy and troubled alliance with their sometimes
fellow travelers, the anarchists and libertarians. The contradiction that the
neoliberals constantly struggle against is that a strong state can just as easily
thwart their program as implement it; hence, they are inclined to explore new
formats of techno-managerial governance that protect their ideal market from
what they perceive as unwarranted political interference” (Mirowski, 2009, p.
436).

Democracy, then, needed be rendered ‘impotent.’ In lieu of direct input, ‘accountability’
measures are preferred. Or “better yet, convert state services to be provided on a contractual
basis. One should not confuse marketization of government functions with shrinking the state,
however: if anything, bureaucracies become more unwieldy under neoliberal regimes. In practice,
‘deregulation’ cashes out as ‘re-regulation’ only under a different set of ukases” (Mirowski, 2009,
p. 436). In lieu of democracy, the “market is posited to be an information processor more
powerful than any human brain, but essentially patterned on brain/computation metaphors. …In
this version, the market always surpasses the state’s ability to process information, and this
constitutes the kernel of the argument for necessary failure of socialism” (Mirowski, 2009, pp.
72
435, emphasis omitted). The veneer of democracy cannot yet be allowed to fade: it is needed to
continue legitimating the neoliberal state. The contradiction is

“transcend[ed]…by treating politics as if it were a market and promoting an
economic theory of democracy. In its most advanced manifestation, there is no
separate content of the notion of citizenship other than as customer of state
services. This supports the application of neoclassical economic models to
previously political topics; but it also explains why the neoliberal movement
must seek to consolidate political power by operating from within the state....The
spread of market relations is inevitably spearheaded by state actors....The ‘night-
watchman’ version of the state is thus comprehensively repudiated” (Mirowski,
2009, p. 437).

What is curious is that if we turn to the consumer society literature, when Ewen (1976)
wrote of the changes in the social fabric sought by industrialists of the 1910s and 1920s and their
propagandists as Bernays, they envisioned and championed as necessary for the continuation of a
particular mode of capitalism a particular type of consumer society which expressed its choice in
the marketplace. That is, it did not seek solutions to ills in the collective capabilities of organized
people but rather in the large corporations that offered fixes purchasable over a counter. Here is a
similar mind-trust operating in a wholly new register, seeking the construction of a particular
understanding of society that could serve as a firm buttress for the continuance of a
(neo)liberalism friendlier to capital.
Freedom was extolled over all other virtues; yet, “the definition of freedom is recoded
and heavily edited within their framework.” Milton Friedman, for instance, never really defines
the notion. Mirowski notes that in this early incarnation, “Freedom is not the realization of any
political, human, or cultural telos, but rather is the positioning of autonomous self-governed
individuals, all coming naturally equipped with a neoclassical version of rationality and motives
of ineffable self-interest, striving to improve their lot in life by engaging in market exchange”
73
(Mirowski, 2009, p. 437). It would be Hayek that struck upon a ‘double truth’ of the new regime;
that is, while an “elite would be tutored to understand the deliciously transgressive Schmittian
necessity of repressing democracy…the masses would be regaled with ripping tales of ‘rolling
back the nanny state’ and being set ‘free to choose’” (Mirowski, 2009, p. 445). The work to
transform mere theory into a moral code (p. 440) involves what

“masquerades as a radically populist philosophy, which begins with a set of
philosophical theses about knowledge and its relationship to society. It seems to
be a radical, leveling philosophy, denigrating expertise and elite pretensions to
hard-won knowledge, instead praising the ‘wisdom of crowds.’ …In Hayekian
language, it elevates a ‘cosmos’—a supposed spontaneous order that no one has
intentionally designed to achieve intentional ends. But the second, a linked
lesson, is that neoliberals are simultaneously elitists: they do not in fact practice
what they preach. When it comes to actually organizing something…suddenly
the cosmos collapses to taxis” (Mirowski, 2009, pp. 425-426).

Early studies from the Chicago school—the Chicago school of the likes of Henry
Simons—was suspicious of the power of monopoly. By the 1950s this would shift as the Chicago
law and economics movement, itself funded by the same benefactors as the MPS, spread to new
theoretical treatments of innovation markets, ultimately beginning to argue that monopoly was
not so harmful for the operation of the market, itself “an epiphenomenon attributable to the
misguided activities of the state and interest groups” (Mirowski, 2009, pp. 439, citations omitted).
Indeed, “[t]he market (suitably reengineered and promoted) can always provide solutions to
problems seemingly caused by the market in the first place” (p. 439).
None of this, especially, is any conspiracy, nor is the attempt to tell a history of
neoliberalism ‘simply economic history.’ It is also more than such efforts as the confidential
memo by Associate Justice Lewis Powell to the United States Chamber of Commerce arguing at
length that the Chamber should lead an “assault upon the major institutions—universities,
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schools, the media, publishing, the courts—in order to change how individuals think ‘about the
corporation, the law, culture, and the individual’“ (noted in Harvey, 2005, p. 43). Powell was
actually behind the times. This was no mere sales effort: it was a transformational movement that
needed time and effort to attain the degree of coherence that it attained, a “long-term
philosophical and political project” (Mirowski, 2009, p. 426).
This would be a re-education effort for all elements of society—capital included, even if
those elements of the Society may not have completely agreed with that part of the program at all
times: “The relationship between the neoliberals and capitalists was not merely that of passive
apologists or corporate shills,” although it certainly helped to have capital in your corner: “[H]ow
much more powerful are ideas consciously forged with the vested interests kept firmly in mind”
(Mirowski, 2009, p. 432). These vested interests enabled a wide-ranging ‘Russian doll’ structure
around these new ideas: academic settings at the center; foundations and philanthropic units one
shell removed; think tanks who shelter neoliberals “who themselves might or might not also be
members in good standing of various academic disciplines,” with these groups begetting one
more layer of instant-action groups (Mirowski, 2009, pp. 430-431). By the time one got to that
outer layer, it would be challenging, if not impossible, to discern the myriad ties contained within.
All the same, and as a bonus, “This also tended to foster the impression of those ‘spontaneous
orders’ so beloved by the neoliberals, although they were frequently nothing of the sort. Yet the
loose coupling defeated most attempts to paint the thought collective as a strict conspiracy. In any
event, it soon becomes too large to qualify” (Mirowski, 2009, p. 431).
This extended trip through such details serves several ends for my purposes here. One, it
acts as foreshadowing: the moment that the open access movement unravels and ‘network
neutrality’ becomes the issue du jour, the lessons learned from this decades-old experience will
not be forgotten. Second, it is a warning: the growth of the ideas contained therein also become of
75
surprising importance as they illuminate some core difficulties that activists fighting for “Internet
freedom” face going into the future, including what they need to be conscious of when they look
in the mirror. Thirdly, the open access and eventually network neutrality debates served to point
to this developed mode of thought’s own contradictions, which, from an activist point of view,
could well provide the seeds to their own demise.
The descendants of this ‘thought collective’ were pivotal to communications policy
processes within a few years. Ronald Coase in 1950 “attended and addressed the membership on
‘Broadcasting in a Free Society’“ (Tribe, 2009, p. 87). De Sola Pool’s “policies for freedom” are
derived quite distinctly from this thought-collective’s efforts (Pool, 1983, pp. 247-249). First
Amendment principles were to apply to all media, including electronic ones. “Anyone may
publish at will.” The “enforcement of the law must be after the fact, not by prior restraint.”
Regulation “is a last recourse. …If possible, treat a communications situation as free for all rather
than as subject to property claims and a market.” “Interconnection among common carriers may
be required.” This deserves further elaboration:

Carriers may sometimes raise valid objections to interconnection. Some will wish
to use novel technologies that are incompatible with generally accepted
standards, claiming that they are thereby advancing the state of the art. …Such
arguments are often valid, though they may also be used to lock a group of
customers out of using the carrier. …An argument in favor of general
connectivity is that it facilitates market entry by new or small carriers. It also
makes universal service easier. (Pool, 1983, p. 247).

The “government and common carriers should be blind to circuit use. What the facility is used for
is not their concern.” Bottlenecks “should not be used to extend control.” And lastly, “for
electronic publishing, copyright enforcement must be adapted to the technology.” Streeter (2011)
accurately notes that this volume, and these ideas, largely sealed the deal for much of the thinking
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on the possibilities of communication technologies, equating as it did “free markets, corporate
autonomy, and free speech in a common but slippery way, where in one breath the word freedom
means, say, market competition for local phone service, the next it means abandoning antitrust
regulation, and the next it means standing on a soap box in a park proclaiming ones’ views”
(Streeter, p. 78).
Thus one lens via which to explore the struggle over network neutrality—to secure its
existence in semantic, technical and existential terms—is of a movement utilizing neoliberalism’s
pet terms in a grand experiment to gain entrance to policymaking realms heretofore inaccessible
to a bunch of scrappy outsiders; a movement that was about shifting the structures by which
communication takes place, but with the contradiction that it was additionally the primary conduit
by which commerce took place and was managed—not just online via retail, but in the transport
of valuable information necessary for the management of transnational commercial operations
and emergent modes of financial transactions. The quandary which obtains is that even as these
movements seemed counterhegemonic to the dominant logics of neoliberal capitalism in a
networked, financialized environment, they were largely moving the process along since the
broader formation was never at issue. Yet the actions undertaken were the best options available:
what capital formation won would matter in ongoing struggles for social and economic justice—
certain configurations make the job easier or more difficult. Banet-Weiser’s notion of
ambivalence comes riding to the fore.
When Sandvig (2007) would intervene in the network neutrality debate himself, he would
exclaim,

“de Sola Pool sought to advance a neo-liberal agenda of increased competition by
warning against the menace of government intervention. In this, his agenda
appears consistent with network neutrality critics like Yoo. However, the policy
proposals he suggests are identical to those advanced by network neutrality
77
advocates like Wu. One reason for this is that the regulatory context is so
different now that de Sola Pool’s proposals sounded like “hands off!” 23 years
ago, and yet these same proposals are now the tools of interventionists, and
sound like “hands on!”

What is surprising is that we as readers find this surprising, an insight. What he is essentially
describing is not something new, but something that was the product of an initiative commenced
at the level of the epistemological decades previous, developing in loose fashion, into something
that became the playing field for discussion out of necessity. Sandvig isn’t pointing to some odd
twist in progressive/democratic politics. The neoliberal project was not a merely pro-corporate
initiative: what the benefactors of that movement obtained for their funds was a set of theory
which called for the all-encompassing system, capital included, to be transformed. If anything,
Sandvig’s revelation is a mere recognition that capital would justifiably strike back against
certain of the core tenets of this new system when it suited them. He points to the debate
constrained, turned into ‘difference’ from what had been heterogeneity on diverse fields of
struggle, made understandable by given institutions, and thus decidable.

The use of economic theory

One additional danger is in reading this as some reductionist form of ‘economism.’
Concerns regarding the economism of political decisionmaking and the antidemocratic potentials
contained therein are relevant, as cities like Detroit have fallen into the hands of unelected
managers and as technocrats have taken over European governments. The general concern, then,
is that a particular ‘economics’ comes to rule. However, our concern here is not the act of
enacting a particular policy that stems directly from the machinations of a particular form of
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theory alone; rather, it is about the production of a particular form and content of debate to the
ends of something else entirely—not theory, but a field of action via theory. A strongly-
economistic interpretation (in the narrow sense) of the modern landscape misreads the role that
economic theorization seems to play in broader political realms. The one attempt, to my
knowledge, to apply the historical material understanding of knowledge-processes to the
formulation of communications policy aims directly at this notion. This was undertaken by
Mirowski’s student, Edward Nik-Khah (Nik-Khah), as his doctoral dissertation covering the
fashioning of new spectrum auctions during the 1990s under the Reed Hundt FCC.
In examining the efforts of game theorists, experimental economists, and Walrasian
microeconomists, Nik-Khah was first and foremost disturbed that when he evaluated the auctions
in light of what Congress had represented as their goals, they were a disaster. Congress had
mandated the “development and rapid deployment of new technologies, products, and services for
the benefit of the public, including those residing in rural areas, without administrative or judicial
delays;” it sought the “promot[ion of] economic opportunity and competition and ensuring that
new and innovative technologies are readily accessible to the American people by avoiding
excessive concentration of licenses and by disseminating licenses among a wide variety of
applicants, including small businesses, rural telephone companies, and businesses owned by
members of minority groups and women;” it desired “recovery for the public a portion of the
value of the public spectrum made available for commercial use and avoidance of unjust
enrichment through the methods employed to award uses of that resource;” and finally “efficient
and intensive use of the electromagnetic spectrum” (quoted in Nik-Khah, 2005, p. 112).
Rather than reach these goals, the ‘consulting economists’ proposed their own version of
efficiency as the ultimate goal for the auctions—all, unfortunately, keeping their sights set on the
maximization of revenue. “The highest valued bidder criterion fails to consider structural aspects,
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which are the targets of public policy. But what makes it ‘nonsense’ is not merely that the
criterion is inappropriate, but that it is not possible to determine whether it has been met. While
offered as a way to promote all the public policy goals, the highest valued bidder criterion seems
to entail replacement of relatively more concrete goals with relatively less concrete ones.” (Nik-
Khah, 2005, p. 129). Game theorists offered not empirics but metaphor despite their “claim to
designing the auctions” (Nik-Khah, 2005, p. 130). All concentrated on raising revenues while
simultaneously “ignoring the things they did which likely decreased revenues—steering the
process away from experiments showing other options reaping more money (MCI did not
participate because no national licenses could be obtained) and as part of their commitment to
their clients, bullied others on television, facilitating as well acts of collusion” (Nik-Khah, 2005,
pp. 130-131). In the end, rules were gamed: large companies teamed with small to grab licenses
intended for ‘small business’ and other categories. What resulted was an eventual consolidation
of licenses under large players.
Nik-Khah concludes that what shaped the auctions, then, had little to do with theory,
even as it appeared to play a pivotal role. At issue was the ‘consulting engineer’ model employed
by the FCC. Powerful telecommunications operators knew how to play the system.

[Pacific Bell Attorney James] Tuthill, who organized PacBell’s lobbying before
the FCC, knew it would be crucial to hire an expert who could figure out where,
amid the highly technical details of the auction proposal, PacBell’s interests
lay…He wanted someone who could speak plain English and come across to the
FCC as more than just an opinion-for-hire. “If it’s just another party coming up
and telling our line, that isn’t going to be effective”…During the summer before
the FCC released its auction plan, Tuthill’s staff drew up a list of games [sic]
theorists…By the time the FCC’s plan was in the hands of PacBell’s competitors,
the company had signed a contract with Milgrom and Wilson. Although Wilson
was a more senior professor, Milgrom was assigned the lead role because he was
willing to lobby (Nik-Khah, 2005, pp. 91, citations omitted).

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It is less the paymasters involved that resulted in shoddy outcomes than “The exigencies
of the client-consultant relationship together with the enthusiasm of the Hundt FCC for solutions
provided by economic theory” that “provided a golden opportunity for the large telecoms that
were originally envisioned as targets of PCS policy to tip the competitive balance and make them
the beneficiaries of the policy” (Nik-Khah, 2005, pp. 135-136). The FCC’s own effort to hire
someone outside its purview to serve as an ‘objective’ view on the matters—they selected John
McMillan of the University of California, San Diego—still, in the end analysis, did little good. In
Nik-Khah’s words, rather than an impartial judge, the FCC got in him “someone with an agenda
to establish the practical relevance of game theory. This commitment led him to endorse an
auction design broadly consistent with the wishes of the incumbent telecoms” given the models
he favored (for, conceivably, broad institutional reasons) were theirs. In the end, “It should be
clear that such claims as ‘the auction design process was driven not by politics, but by
economics’ are misleading. Not only is it more correct to invert the claim to read, ‘The auction
design process was driven not by economics, but by politics,’ one should conclude that the
appropriateness of game theory to represent ‘economics’ was determined by politics as well”
(Nik-Khah, 2005, pp. 96, citations omitted).
This is to say, critics charging the FCC with the “prevalence of an ‘economist’s view,’
which stress[ed] the scarcity of spectrum” as the problem with these auctions missed the mark.
There were economists who were far from “oblivious” to properties of spectrum that do not
necessitate considering it ‘scarce,’ such as Eli Noam. But “[t]he important point to remember is
that such views did not impact the policymaking process (and are still underrepresented) because
they were of no use to the Baby Bells. FCC policy was forged in an environment of clashing
business models, and while uses for spectrum might not naturally be mutually exclusive, the
business models certainly were” (Nik-Khah, 2005, p. 139n185). Theory did not drive the
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decisionmaking process at the FCC. Material buttress of a bounded space of theory options
ensured that ‘appropriate’ theory won the day. Importantly, political economy does not disappear.
An availability not just of diverse theory (in Laclau and Mouffe’s sense) but an undercurrent of
understanding that the use of such theory was the appropriate manner by which to run spectrum
auctions, the material resources to mobilize particular strains resulted not in some economic
system winning the day, but a business model that utilized the debate to that end.
These last points are crucial for what follows, and, I believe, offer insight into the true
roles that knowledge plays, in ambivalent ways, in our policymaking process. What Nik-Khah’s
account cannot account for, and the open access and network neutrality debacles present, is
another form of natural experiment in which active, ‘ersatz’ knowledge was brought into the FCC
process. The consultant model that proved so effective during the spectrum auctions to gainsay
the outcomes to prominent players’ advantages would be combined with the background currents
already set in motion decades ago: a move that, ironically, the emergence of network neutrality
itself would only aid, not stifle, from this vantage point.

A return to Wu

I return to Wu’s The Master Switch briefly before beginning my story. Some challenges
of his narrative now emerge. One, it is of a piece with the broader development of neoliberalism
as a project itself. While advocates as the Consumer Federation of America, Consumers Union,
and the Center for Media Education and the Media Access Project had been all along
ambivalently using pieces of the neoliberal program as a weapon against itself, the emergence of
the concept of network neutrality was less a weapon than a shoe-horn, for reasons we will see. A
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second problem with Wu’s account is its one-dimensionality: it doesn’t allow for the mechanisms
that rendered even the concepts of ‘open’ and ‘closed’ more or less stable. That battle is the
dissertation’s focus. Wu, ironically, brought the debate to an end by changing the argument’s
position from one that effectively rendered consumer viewpoints unfamiliar next to the broader
undercurrents rushing by to one that flowed with them all too well. This affected not just
regulatory discourse but popular understanding. Wu’s account, in other words, has nothing to say
about the nature of the Web itself: how content should be subsidized and supported, to say
nothing about the actual role of the public beyond their being innovators and contributors to some
formation of commons, public or private. That would require an articulation of issues that
effectively remained segmented in Washington, ensconced in their own silos.
Which leads me to my broadest thesis: this entire episode points to a new problematic
regarding the function of activism itself, given the possibility that network neutrality debates
themselves ambivalently served both social justice yet the emergent sales effort too. It served the
needs of a newly-revved-up commercial Web beautifully in a historical irony; the manner in
which the fight was engaged performed a similar function. Going forward, activists will need to
grapple with this, and it will necessarily be a long-term affair. The limitation of network
neutrality was due to the content of its theoretical construction—it could have been justified
differently, yet it was not—and this moved the entire debate onto the neoliberal platform long
prepared by the neoliberal thought collective. A heterogeneous field was thus restricted to a
diverse one, the players were categorized and catalogued, and new work served not to expand the
debate but instead to shunt players to one side or another. Net neutrality both mattered and it
differently did not matter. It was both a necessary debate and an opportunity to police knowledge.
The role of research itself served an ambivalent role from this point forward—not moving
debates, but instead aiding in determining whether a particular player was or was not a part of the
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‘discursive community’ in Washington. It determined who was allowed to sit at the table when
policies were decided, not whether the policies should change. This differs from Thomas
Streeter’s recent formulation as he attempts to grapple with our collective ‘romanticism’
surrounding the Web and new technologies in general.
Let me be clear. This is no effort to denigrate the efforts of my former colleagues by any
stretch. Here I place my “I’d do it again” caveat—we would have to. What I seek to accomplish is
to look ahead to the future as we continue to seek ways to solve the problem of the digital divide,
in Schiller’s (2007) sense: “The digital divide is, most profoundly, about the distribution of social
power to make policy for the production and distribution of information resources. Unless that
power is broadly shared, democracy itself is threatened” (p. 57). The remainder of this
dissertation is an effort to capture the nature of the efforts to reclaim just this.
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Chapter 2: Portland as Neoliberalism’s Mirror

If “network neutrality” has a birth family, it is a twisted pair of AT&T and the cable
industry who fought so hard to retain what telecommunications players had lost: exclusive control
to operate their systems under private carriage terms. The impulse to liberalize
telecommunications lines, forcing them into a continually-shifting set of rules to open
competition over their wires for not just advanced services but for rival services as well was
something that they were going to fight. AT&T’s proposed acquisitions of top cable interests
which commenced in 1998—first of Tele-Communications Inc., then MediaOne—would foment
a firestorm over policies that their telecommunications brethren were facing full-on and, bit by
legal bit, besting. Scholarship long ago identified local franchise authorities as leaders in
initiating the open access fight and calling into question the manner in which cable broadband
would be operated (Maher, 1999), but this was written in the midst of the fight as it occurred, and
focused almost exclusively on the legal ramifications of the resultant court battles. Long relegated
as an interesting sidenote, this episode is revealing of a number of crucial aspects of
telecommunications debates that stretch to the present moment. What this chapter seeks to
accomplish is to outline the first skirmish of this post-Telecommunications Act of 1996 battle, an
attempt of a particular locality to come to grips with a tremendous amount of uncertainty in
communications systems even as they became part of a broader assemblage of actors, theories
and principles in what would be an attempt to redraw the scale of communications policymaking.
What is remarkable is how the struggle over the cable franchises owned by TCI in Portland and
Multnomah County served to reveal a particular neoliberal logic shown its own reflection.
In many ways, this initiation of the fight was based not on principle, but on pragmatics,
which only later was transformed into principle. What was obvious to local communities and
their residents was articulated in a report produced by the Consumer Federation of America and
85
Consumers Union in early 1999 (M. Cooper & Kimmelman, 1999). While the
Telecommunications Act of 1996 was premised on the notion that “breaking down barriers to
market entry would unleash a barrage of facilities-based competition,” cable companies and
telephone companies alike still presented no credible challenges to each others’ respective strong
suits: video for cable, telephony for telecommunications. Rather than compete, they had “merged
into larger and larger regional firms that now form tight national oligopolies” (p. vi). The market
power of incumbent operators at this point showed no sign of slipping; nor had wireless
technologies broken local monopolies.
The business strategies of the different incumbent operators served to reinforce a
standing digital divide as individual users were segmented into high-value premium users of
myriad services and, well, everyone else. Telephone companies were able to “assume that
customers with small bills can be retained through preservation of their local monopoly,
reinforced by increasing geographic size;” revenues could be bolstered through local rate
increases in moves to ‘rebalance’ these rates. Given the difficulty and cost to ‘overbuild’ to these
overall low-revenue customers, they could be taken for granted. When they did invest, however,
the greatest potential for earnings growth stemmed from “premier consumers with large local
phone, wireless, long distance and Internet usage” (p. vii). If allowed to invest in their plant
without local oversight, they “have no incentive to make heavy infrastructure investment in
neighborhoods with modest usage patterns.” While the wave of telecom mergers during the late
1990s were always “couched in terms of increasing local competition, they never do. ...Merger
economics does not support local competition—it reinforces market power” (p. vii).
The report noted that for localities seeking to improve access to emergent
communications technologies, the other available conduits hardly had more promising plans. The
business model for cable was an even simpler calculation than that of a telephone provider: as
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long as no competition was on offer, their strategy was simply to keep increasing prices—and this
they had done, dramatically at rates four times faster than that of inflation (p. 7). As a local
monopoly, “restrictive access to TV-viewers is leveraged by adding high-end video services and
high-speed Internet access. Large investment in the infrastructure for local telephony is secondary
given the costs of upgrades, the lack of competition in cable, and entry barriers to local
telephony” (p. vii). To add insult to injury, long distance companies, such as AT&T, assumed
they could squeeze “small bill customers” with rate hikes, as these customers were simply not
“attractive to their rivals.” Bills increasingly consisting of ‘line item’ costs started to amount to
“rate increases for monthly local phone service (which remains a monopoly)” (p. vii). The
confluence of these factors meant that competition in these markets largely consisted of efforts to
obtain high-volume and upper-end users. “Only big customers with big local bills are attractive to
potential local market entrants” (p. vii).
This was the reality with which local governments were faced; and even as these
difficulties made themselves known, so too were they imbricated in the discourse of the
liberalization drive as a way to provide universal service to customers: this discourse provided the
intuitive ‘solutions’ to the problems faced in a seemingly tautological dance that would continue
for the better part of a decade. Reconciling the two is what drove the struggle which commenced
a decade-long (and counting) battle over questions of what, somewhat hyperbolically, we might
say is the ‘soul’ of emerging two-way communications networks. What follows, however, has a
different significance than what one might expect. It is a tale of activism, but that is beside the
point; it is a story, really, of how a neoliberal vocabulary speaks its age and provided the terms
aboard which the open access fight was introduced and carried out. It is a tale, too, of how, most
likely, an operative logic required to retain one’s influence in the Washington, D.C. space was
imported to these localities. The story of Portland and Multnomah County pushing back against
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AT&T represents not just a David and Goliath story, as it is often portrayed (and even then casts
aside crucial elements of the story); and the firestorm across the country which emerged from this
bold act represents the beginning of a cementation in the mode of argument. This struggle is not a
surprise. It was, from my vantage point, a necessary and predictable fight that on the one hand
sought to preserve a notion of localism aboard a new medium while effectively deepening the
commercial drive aboard the Internet’s circuits.
In other words: the inspiration we might take in the actions of a genuinely courageous
Commission in Oregon only conceals from view the beginning of an unfolding of a broader
tragedy.

Considering a break

Malik (2003) provides a brief overview of the emergence of cable modem technology:
@Home was a startup which marketed itself to the cable industry as a way to jumpstart what was
a largely-saturated market for cable product. In 1995, Tele-Communications, Inc., one of the
largest cable companies worldwide, took a 75% stake in the company, which provided it its initial
boost. As it was developing its network plans, two crucial design decisions were made: first,
rather than constructing its own network from scratch, where necessary, it would purchase
bandwidth from established ‘backbone’ providers as Sprint, MCI, and UUNet (not yet part of
MCI at that stage). Second, given the nature of cable networks—a cable ‘loop’ connects
numerous houses, all sharing and thus vying for the available bandwidth of that cable wire—it
was feared that linking computers to open cable networks would potentially overwhelm the
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network itself. Thus there was a move to cache content on servers closer to individual locales,
bringing content in Internet-geographic terms ‘closer’ to users.
3

While caching content this way would be big business in the coming decade, this initial
effort to put content closer to users so as not to overwhelm a nascent network was born of
perceived necessity. More immediately, the opportunity to exploit this via commercial
arrangements with designated content partners would simply be a fringe benefit, particularly if
@Home could maintain control over its access point to the Internet. @Home made its case to a
number of other cable providers; Cox and Comcast decided to partner with the company, taking
stakes in it as well (others, such as Time Warner, made deals with other upstarts as RoadRunner).
With its new partners, @Home instantly had access to 40 million homes, each with its own
virtual monopoly over high-speed access.
They would overpromise and underdeliver, Malik notes, but it was not completely the
ISP’s fault. By late 1997, @Home found themselves with two principal pressures. One was to
grow so as to maintain rising stock prices, but even as @Home was putting a great deal of effort
into signing new customers, to accommodate them, the company needed to push its cable partners
to upgrade their facilities to allow these new customers to have reasonable service. The network
by early 1998 was largely overwhelmed as cable partners were slow to upgrade; internal relations
began to deteriorate. “Cable guys thought that they were @Home customers—which they were—
while the @Home crew thought the customers were their real customers” (Malik, 2003, p. 149).
As 1998 wore on, feeling the pressure of other Internet stocks as Yahoo! and Amazon
taking off, in an attempt to do the same for his company, @Home’s CEO decided the company
needed to get into the content business. Malik describes the abject fear that he felt of his Internet

3
This is hardly the only solution to such a problem, as Sandvig (2006) and van Schewick (2010) note; ‘multicast’
technologies, never utilized, are one such possibility.

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access services becoming a mere commodity, just transport for other services; add to this that the
company was “bleeding millions of dollars…rais[ing] $485 million in debt at the end of 1998
and…still struggling to resolve the technology issues that were plaguing the network,” here was a
step that would remove the company “from under the yoke of the cable guys” (p. 151). Recalled
one insider who disagreed with the decision, “TJ [CEO of @Home] wanted us to be another
HBO,” giving its cable company partners stakes in the new business and assuring @Home prime
access status to households (p. 151). Malik is mystified by this: “What is hard to understand is
why a company with a near-monopoly on the high-speed Internet access business would change
its business model....One thing that was going right for @Home was that its stock price was rising
faster than mercury on a hot summer day in Manhattan” (p. 151).
Before such content strategies were hatched, TCI decided to sell its infrastructural assets
to AT&T in mid-1998, a move Malik describes as an attempt to flip “dilapidated assets:” they
effectively were sticking AT&T with the costs of upgrading and getting rich in the process. With
the pending sale, upgrades slowed to a crawl. Additionally, given how Title VI of the
Telecommunications Act governed cable facilities, the sale meant that AT&T would be required
to seek the express permission to take over ownership of what was still effectively monopoly
infrastructure—locality by locality and cable franchise by cable franchise. This is a world apart
from the requirements on the telecommunications side, governed by the provisions of Title II of
the Telecommunications Act, which sought to open telephone lines to rivals, creating new
markets for local telephone service. Such negotiations with new owners give localities the
opportunity to examine company financials (to some extent), to demand service upgrades, to
request public buildings be wired, to negotiate a “franchise fee” to be regularly paid to the
locality, and support for public, educational and governmental channels over the cable system.
(Public access advocates often would complain that many locales were interested in the
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‘governmental’ channels for self-publicity, but not so much the ‘public’ channels, which could
bring controversy.) These affairs were largely smooth sailing largely out of view, done with little
fanfare nor controversy: perhaps with a public hearing or two, but without much genuine debate.
The local franchise boards that drove the approval process (or provided merely advisory functions
to city councils) were selected differently in most all locales, inevitably with varying interest and
expertise in the matter.
Much of the backroom thinking and dealing going on at TCI/AT&T/@Home was simply
unknown to local franchise authorities who gave AT&T their stamp of approval. In the Portland
and Multnomah County areas of Oregon, either due to historical exigency or mere chance, the
situation would be quite different. Overseeing cable operations on behalf of six local governments
in this area, including these two, was the Mt. Hood Cable Regulatory Commission (MHCRC).
This commission consisted of appointed volunteers. Five cable franchises served these six local
governments, all owned by the then-top two “multiple system operators” (MSOs) in the country:
TCI served 31,000 customers between the two municipalities, and Time Warner, which possessed
two systems held by a subsidiary called Paragon Cable in Multnomah County, served
approximately 130,000 subscribers (Mt. Hood Cable Regulatory Commission, 1999a, p. 3). It was
the responsibility of the MHCRC to put forward a recommendation to the City Councils of
Portland and Multnomah County whether or not to approve the transfer of TCI to AT&T; if so,
they would also issue recommendations for conditions that would need to be fulfilled to allow the
transfer to go through.
David Olson, Director of the Mt. Hood Cable Regulatory Commission, was cut from
different cloth than many other local regulators. He was a longtime local: a Reed graduate, a
former cable company employee, a former President of the National Association of
Telecommunication Officers and Administrators; as of 1998, he had been serving as Portland’s
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cable franchise director for 15 years. This is to leave aside that he was a founding member of
Portland’s Tygres Heart Shakespeare Company to boot. He was someone proud of his home-base
as “a state of independent thinking mavericks” (Yim, 1998b). His own broadband “epiphany”
occurred when his father contracted lymphoma and he was able to jump online, download
research on the disease and forward it to him. In January, 1999, he told a reporter from the Wall
Street Journal that when U.S. West (the dominant provider of telephone and DSL service) and
AT&T “are going to dominate the two wires that go into everybody’s home, from pauper to king,
they need to have that wire be available to serve other interests than their own. …That’s been the
core of telecommunications policy for years” (Gruley, 1999). The appointed volunteer
commissioners who joined him on the Commission were described by the Oregonian as “hardly
neophytes in the complex world of high tech telecommunications. They were a group marked in
part by a consumer-oriented distrust of the corporations’ methods and a sharp vigilance about the
public’s interest” (Yim, 1998b). They included a Nike executive, experts in computers and
multimedia, a senior programmer at ADP Corporation, an independent multimedia producer and
composer, small business owners, an accountant, a former manager for a Caterpillar equipment
dealer, and a former technical and lighting director for CBS and theater (Yim, 1998b).
In late October 1998, the Commission held a televised public hearing on the merger.
AT&T was so assured from its other dealings that there would be no fanfare that it sent no one,
relying on one representative from TCI to represent all of their interests. If a seed of rebellion had
not been planted among the Commission before this hearing, this certainly did: at least one
Commissioner was irked by this, enough so that a note to that effect was entered in the public
record (Mt. Hood Cable Regulatory Commission, 1998c). Debbie Luppold, Executive Director
for Franchising and Local Government Relations for TCI and standing in for both TCI and
AT&T, described the @Home service AT&T would offer to the Commission in the circumspect
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language required to ensure that this service would not be misconstrued as providing any kind of
telecommunications service (thus potentially putting the company in the regulatory regime
against which their telephone-based brethren were struggling): it was a “proprietary high speed
internet access product, that is a cable service with content built into it” whose content “is
localized to the community being served” with TCI “viewing the ‘@Home’ product as being a
gateway to the Internet for TCI’s cable subscribers” (Mt. Hood Cable Regulatory Commission,
1998c, p. 2).
Local Internet service providers were clearly mobilized already. Representing the
(freshly-minted) Oregon State Internet Service Providers Association (ORISPA) were Richard J.
Hoswell and James Deibele. Hoswell was chairman of locally-based Europa Communications;
Deibele was president of Teleport Internet Services. Both offered support for the new mode of
Internet access offered by AT&T, but were “concerned that with the development of broadband
Internet related services that there be a choice of Internet providers in the future. They said they
[were] looking forward to how this merger [would] effect [sic] the market place of local
innovators of internet services” and were “interested in working with staff to make sure that such
services are deployed in a manner that cannot be construed as anti-competitive or unfair in the
marketplace” (Mt. Hood Cable Regulatory Commission, 1998c, p. 2). Asked by a commissioner
if he “believed internet service providers would be squeezed out of the marketplace” by the new
giant, Horswell responded, “not if an internet service is put into place that independent providers
have access to the network, similarly to the tariff for ADSL at the Public Utility Commission
level” (p. 2). When Luppold was given time to respond, she emphasized that in regards to
independent ISP concerns, the @Home service was a “proprietary product that TCI view[ed] as a
cable service” and that “at this time TCI does not intend to use the cable system as a
telecommunications provider and will seek a telecommunications franchise if anything changes”
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(p. 3). Of course, this competition with telephone services was exactly the benefit that AT&T was
trumpeting at the FCC as the chief benefit of this transaction.
Presciently aware of the expanding telecommunications and tech bubble, the concerns of
the Commission extended to the large debt loads being assumed by TCI. Michael Katz, a
financial consultant retained by the Commission, called attention to the $5.5 billion in debt TCI
had taken on to acquire interests in the @Home service itself even as AT&T, in its letter
requesting the franchise transfer, made it known that they planned to downsize TCI: so even as
one company was bulking up on debt, it would ultimately take steps which, through decreased
service operations, may end up increasing its debt ratio. A local franchise authority is fully within
its mandate to pay attention to such things: granting a monopoly franchise to a firm about to go
belly-up would result in massive disruptions of service for local residents. At this early stage,
citizen commenters testified to concerns about the implications for public, educational and
governmental access stations being continued under the new combination; others simply
demanded to know why Country Music Television had been removed from their cable service.
This would change at the following, crowded meeting on November 16 (Mt. Hood Cable
Regulatory Commission, 1998b, 1999a). The minutes to this meeting reveal a Commission
completely on its game on the nuances of technology law. All commissioners save one noted that
they had been approached by representatives of U.S. West, the dominant local telephone
company,
4
since the last meeting; U.S. West sent Tim Sandos, Director of Public Policy to testify
on their behalf to this one. AT&T now knew better than to blow off the affair. AT&T and TCI
sent three representatives to testify: Debbie Luppold was present again, joined this time by Gloria
Crayton, Regional Director for TCI, and Richard Thayer, who was Chief Commercial Counsel for
AT&T. Based on comments received in October and hence, MHCRC Director David Olson had

4
In policy documents, USWest would be considered the “incumbent local exchange provider” or ILEC.
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prepared a resolution outlining proposed conditions for the transfer of the franchise to AT&T that
would be forwarded to the Multnomah County Commission and the Portland City Council for
consideration. These conditions included the standard expectation that AT&T would adhere to the
conditions of the former TCI agreements (which, given TCI was allowing its infrastructure at this
point to fester, likely would mean improvements, including a specific commitment to its “timely
completion of the TCI upgrade in Portland and commencement of a comparable upgrade in
Multnomah County”).
Crucially, the resolution added nondiscriminatory access of ISP competitors to the cable
platform to the list. The implications of this requirement were huge. Telecommunications
providers had been required by the Telecommunications Act to ‘unbundle’ their services for lease
to competitors (and also to offer their facilities to competitors at wholesale rates as another
option). This requirement, while not nearly as stringent as these unbundling and resale
requirements on their telecom siblings, resided in a legislative blind-spot as yet unaddressed by
either the FCC or Congress. The provision of broadband over a DSL line—a telecommunications
technology—was more difficult than this for a competitor to obtain: in order to do so at this point
in time, a competitor would not only have to provide access to the Internet, but either offer fully-
fledged telecommunications service themselves to give them the option of leasing the local loop
reaching customers at user premises. (The other option for an Internet provider would be to strike
a deal with a “competitive local exchange carrier” which would lease the loop element in their
stead.) In short, this seemingly insignificant request held potentially far-reaching consequences
not just in Oregon but nationally. It would be understating things to say that AT&T and TCI
representatives expressed their displeasure with such conditions. Luppold stressed that, first, this
was something to be decided at the national level—at the FCC—and that, second, both companies
believed that “the Commission does not have authority to determine this matter” (p. 3). They
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asked that the issue be tabled for another meeting so as to hash out a compromise; as far as
AT&T and TCI were concerned, best for this to simply go away behind closed doors before the
next meeting.
When the floor was opened for comment, the assembled crowd would not hear of it. In
the course of the evening, not only were local interests defended in the strongest possible
language, not only were citizen commenters well read and aware on the issue at hand, but even
the national significance of what was happening in the room was overtly realized. ORISPA,
represented again by Richard Horswell and his counsel Stephen Kafoury, were joined by Steve
Caldwell of Transport Logic and Susan Hamill of One World Internetworking. Kafoury noted
that “[T]he Commission is able to take a leadership position on this issue and hoped it would not
delay its decision” (p. 3). Horswell further drove the opportunity to set precedent further, noting
that while the merger “has a potential to bring welcomed competition to local telephone
services...[he] asked the Commission to ensure that similar competitive promises extend to
AT&T/TCI’s provision of high speed Internet access to allow ISPs to buy access at a competitive
price;” without the condition, consumers would be forced to purchase @Home whether they
desired it or not, meaning they would “pay for two ISP services to get the one they want.”
Further, the Commission’s decision would “have a dramatic impact on consumer choice,
competition in the market place and whether or not the community will have better Internet
access. It [would] also set a benchmark for other regulatory bodies to take action to enhance the
levels of Internet services and access throughout the nation” (p. 3).
Hamill joined this argument to the concept of the actual operation of networking itself.
She stressed the importance of open platforms as opposed to closed, noting that aboard closed
platforms businesses may not be able to use the latest services if the closed platform restricts
them from doing so. “Some of the things that have made the Internet better are the open
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architecture, open standards and open competition. Consequently, consumers have an
unprecedented number of opportunities for choice” (p. 3). She emphasized “a community impact
that may not be visible” in the form of “economic and social energy that goes into technology”
(pp. 3-4). Presaging a concept that would come to serve as an ur-concept in the broadband
debates to come at the national level—the notion of ‘internalization of complementary
externalities’—Steve Caldwell testified that he was “surprised, shocked and disappointed that
AT&T and TCI do not recognize other ISP’s as a very strong, potential, additional revenue
source” (p. 4).
Lest it appear that the lone voices of dissent were commercial interests were merely
defending their turf, unaffiliated residents showed up in greater numbers to this meeting than last,
all seemingly well informed of the stakes involved. One who stated “he is not affiliated with any
organization or consumer group” testified that “consumers are for competition” and that he was
“in favor of the resolution with the open cable access provisions,” and even “believed that AT&T
and TCI would benefit from open competition” (p. 4). Another Multnomah resident, who had
previously worked with three cable companies, expressed his own concerns regarding digital
inequality. He also requested a review of records for the use of leased access aboard local
franchises: by law, local cable affiliates were supposed to offer up channel space for ‘lease,’ a
provision in the Communications Act meant to increase viewpoint diversity. This speaker,
however, believed this manner by which citizens might ‘get on television’ was exorbitantly priced
and little used. Even more remarkably, another unaffiliated Portland resident dug even more
deeply into the weeds of telecommunications policy: he “stated he is concerned with voice
services over TCI’s system, which changes the venue and puts it back into the common carrier
basis. [He] asked what would happen when the companies come back before the Commission
97
regarding voice services over the system. Olson responded that separate authority would be
needed” (p. 5).
The policy director for U.S. West also testified, couching his rhetoric in the parlance of
fairness and playing to the need for a “level playing field to protect competition,” in the face of a
merger that would create a giant entity capable of “provid[ing] services to approximately 1/3 of
the customers in America” and similarly able to “provide long distance services, manufacture
equipment, enjoy pricing freedoms, and transmit data services, etc., and would be able to do so
under a regulatory scheme that is far less stringent than that required of U.S. West or other
telephone companies. The reduced regulatory burden on AT&T is a great concern for U.S. West,
and this new combined company could create a new type of monopoly” (p. 4). Commissioner Sue
Diciple—herself the owner of a small consultancy and a former project manager for the Oregon
Telecommunications Forum Council—took these words more as crocodile tears than vehemence,
noting that U.S. West had recently unsuccessfully lobbied at the Public Utility Commission to
close their own platform to competitors. (This is, of course, to put aside the epic legal struggles
occurring at the national level to achieve the same goal against competitors.) But she arrived at
the same conclusion: “Now ISPs have access to U.S. West’s system. Similarly, ISPs should have
fair access to cable” (p. 5).
With the only actors in the room disfavoring the open access condition being AT&T and
TCI, the Commission passed the resolution containing the requirements they would recommend
to Portland and Multnomah County in a 5-2 vote. The portion of the resolution focusing on ‘open
access’ read as follows:

Non-discriminatory access to cable modem platform. Transferee shall provide,
and cause TCI to provide, nondiscriminatory access to TCI’s cable modem
platform for providers of Internet and on-line services, whether or not such
providers are affiliated with Transferee or TCI, unless otherwise required by
98
applicable law. So long as cable modem services are deemed by law to be ‘cable
services,’ as provided under Title VI of the Communications Act of 1934, as
amended, Transferee and TCI agree to comply with all lawful requirements
regarding such services, including, but not limited to, the inclusion of revenues
from cable modem services and access within the gross revenues of TCI’s cable
franchises, and commercial leased access requirements (taken from Mt. Hood
Cable Regulatory Commission, 1999a, p. 10).

Even those on the commission queasy about notions of ‘increased regulation’ saw this as
just and reasonable; Commissioner Robert Kreinberg, a vice-president at Nike Inc., would later
comment to the Wall Street Journal that while he could “sympathize” with AT&T, that even as
he was “not a big regulatory fan,” he thought “there are some issues where regulation is needed to
maintain a sense of competition and fair play. It’s like if I owned all the airports in the world and
I owned an airline and said only my airline could land there” (Gruley, 1999).
There are a number of ways of ‘reading’ this episode. One is of a community standing up
for itself, demanding access to emergent networks, demanding access to their media. However, in
this early manifestation of a reform movement, one would be remiss not to notice the terms by
which such notions of fairness emerged. Not for the last time are the imperatives of the age
speaking via its subjects more clearly: the neoliberal imperative to increase competition in all
realms is cast here as the thing that will mark the delivery of fairness; a vague, untheorized notion
of competition as serving the interests of the consumer was given pride of place. It is notable that
by this moment, as documented recently by Turow (2011), the means by which these citizens
could be tracked across their various movements online were already established. The ends to
which the new networks would be put—an increased surveillance of consumer conduct, in
addition to the communicative needs of capital—was a function only bolstered by the direction
this debate took.

99
Casus belli

Fireworks erupted: in between passage of this resolution and the following meeting,
AT&T and MHCRC staff met on December 2, 1998 to allow AT&T/TCI to propose a
compromise, one that would effectively “change[] the language form a requirement to a policy
statement” (Mt. Hood Cable Regulatory Commission, 1999b, p. 11). With news of a
‘compromise’ leaking to the press, and a new resolution with weaker language on the docket for
the following Commission meeting on December 14, politicking became furious. The week
before the new vote, ORISPA lobbied city and county officials to approve the stronger November
decision; in the press, AT&T’s Thayer used tax revenues as blackmail: “I think the citizens of
Portland and the county would be interested to know that the city representatives and a cable staff
person are making an attempt to reduce the revenue to the city and what the implications of that
are. ...If we let ISPs in, it will take away market share. The city and county get no money from
Internet service providers” (Yim, 1998b). Sticking with AT&T’s proprietary partner for Internet
access was now a civic obligation!
The volume of this debate was reflected in an editorial published by the Oregonian on the
eve of the coming vote:

If you like to hear modern-day David versus Goliath stories, a fascinating one is
unfolding this week in the Portland area....[AT&T and TCI] have told federal
regulators that they shouldn’t have to open their cable network to rivals such as
America Online Inc., that want to provide Internet service over TCI’s cable lines.
That kind of restriction wouldn’t just block America Online, however. It also
would prevent local Internet providers, such as U.S. West, Transport Logic and
Europa Communications, from using TCI’s cable network as they use telephone
networks now. Why all of this should matter is pretty obvious. The AT&T-TCI
proposal would stifle competition ("Open bridges," 1998).

100
Strongly standing against the backroom compromise with AT&T while also recognizing
the national significance of the local action taken, the editorial used FCC Commissioner Gloria
Tristani’s own words, delivered at a November 8 regulatory utility commissioners’ association
gathering: “[W]e can best serve consumers by imposing—where appropriate—pro-competition,
pro-consumer conditions on mergers. If these are measures that would improve consumer
welfare, the FCC can and should impose these conditions.” The editorial board finished with its
own punch: “And when the FCC votes on the merger next year, the Mt. Hood Cable Regulatory
Commission should remind Tristani that she favors attaching conditions to mergers that support
the public interest.” In other stories, local media held the MHCRC aloft, even lionizing them. In
another piece from the Oregonian, the paper proclaimed, “Unlike the high-profile players who
jockey for position in the litigious telecommunications industry, no one on the cable commission
has a financial stake in the outcome. The commission’s members represent Portland, Multnomah
County, Gresham, Troutdale, Wood Village and Fairview, not Wall Street or Hollywood. Among
them are parents, musicians, retirees, a former city councilman and a onetime member of a
citizens advisory group on animal control” (Yim, 1998b).
At the December meeting, commissioners confirmed the intensity of the previous weeks:
U.S. West contacted several of them, but unaffiliated members of the community did so as well.
Alluding to an FCC hearing on the AT&T/TCI merger that had occurred earlier in the day, David
Olson introduced a resolution that the Commission would file ex parte comments with the FCC
outlining their own position on the matter. He was unaware of any other locality that had done so,
even as representatives of the telephone industry, Internet service providers, consumer groups and
AT&T and TCI had already submitted their own. It would be important, he felt, “to relay the
information the Commission received from testimony taken at the public hearing and advocate
the position the Commission has taken on this issue” (Mt. Hood Cable Regulatory Commission,
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1998a, p. 2). By now Deputy Director Mary Beth Henry had directly contacted the FCC herself to
ask if they would be interested in their input; they responded affirmatively. The resolution passed
handily. This drive to advocacy would be a role that Olson would champion going forward.
Records of the consideration of the watered-down resolution which would replace the
previously-approved strong one reveal how close Portland came to backing down to AT&T for
largely practical reasons. Perhaps because he genuinely felt this way, or perhaps because he felt
he owed this opportunity to AT&T out of a sense of fair play, David Olson offered a supportive
case for affirming the ordinance he had hammered out with AT&T and TCI that reduced the
requirement for open access to a mere ‘policy recommendation.’ The compromise “did contain
sufficient elements of the original language for the staff to support the substitute ordinance” (p.
2), he noted. More directly, he argued that its passage would “continue a good working
relationship with the companies…[and] avoid possible delay of providing advanced technology to
subscribers;” further, “the transfer affects only a small percentage of cable subscribers...and...the
FCC, most likely, will consider the issues on a national level” (p. 3). A pending sale in the mix, of
Paragon (a subsidiary of Time Warner) to TCI, meant further transfer negotiations were in the
offing; he expressed concerns about maintaining consistency across jurisdictions. Somewhat
jarringly, Olson also noted that he had been prepared to go ahead and file the compromise with
Portland and Multnomah’s City and County Councils as it stood. It was because City and County
Commissioners themselves wanted to see it adopted by the entire commission before accepting it
that he had not done so. Olson nonetheless concluded that they should pass the compromise.
The reason for hesitancy in enforcing the original conditions was made clear later during
the meeting. In the course of negotiations regarding the compromise, comments by AT&T’s legal
counsel had been leaked to the press. Commissioner Ruth Miles, a small business owner and
former Multnomah Community Television board member, struck back at these reports, saying to
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Debbie Luppold who was once again representing AT&T and TCI, “Thayer’s remarks as relayed
to the Commission by Olson were, ‘I hope you have a big budget.’” Luppold attempted to walk
back the apparent legal blackmail: she tried to explain that remarks to that affect “were made
following [her] discussion with Olson where she said the companies had been blind-sided on
process…[and merely] observed that the lack of process could cost the jurisdictions a fair amount
of money. The remark was not intended as threat” (p. 4). Her attempt to backpedal would not
work: few things besides this threat could have riled this Commission more to action. In the days
leading up to this meeting, one commissioner noted to reporters, “I know what it is to deal with a
national company...If you let them run over you without taking a stand, then they’ll run over
you.” Commissioner Diciple told the Oregonian, “Local folks need to be the watchdog....God
knows, if you wait for the FCC, you’d really be in a bad way.” Commissioner Miles piled on: “I
have a deep suspicion of anything the two of them [AT&T and TCI] are going to do, separately or
together” (Yim, 1998b).
Commissioners needled the hapless Luppold: they probed the legal definition of ‘cable
services’ and how the Internet service provided by AT&T’s partner ISP figured in it; federal
policy was directly brought to bear on the proceedings as Luppold pointed toward a recent FCC
white paper “characteriz[ing high-speed Internet services provided over cable] as similar to cable
services. Until the FCC makes a ruling, TCI is deploying @Home as a cable service and paying
franchise fees on it” (p. 4).
5

She noted that in testimony before the FCC earlier that day, another AT&T
representative “testified that video services, telephone services and internet services were all
cable services” (p. 4). Commissioners inquired as to what the regulatory status or category of

5
The paper she references is Esbin (1998), “Internet over cable: Defining the future in terms of the past,” a working
paper from the FCC’s (then) Office of Planning and Policy. Such papers are not official stances of the FCC nor are they
enforceable, even as they inform policymaking at the agency.

103
online video and a proposed ‘@Work’ service would be; Luppold “didn’t know the answer” as to
the classification of this enterprise service. This was less a lack of knowledge than a clash of
worlds: it was a tacit acknowledgement of the bind into which her superiors were nestling her—
one story was being delivered to Congress, and another to local commissions entirely. Ultimately,
seemingly losing patience with the barrage of questions, Luppold informed the Commission that

[U]nder the Cable Act, communities have the right to approve a change in
company control, by reviewing the technical, financial and legal capability of the
new entity to uphold the terms of existing franchise; communities do not have the
right to impose additional conditions. Therefore, it is a huge compromise for
TCI/AT&T to agree to any additional terms and conditions as part of this
transfer” (p. 5).

Unintimidated, Commissioner Sue Diciple responded that “it was her understanding that
the Act does not limit the Commission’s ability to impose other kinds of conditions at the time of
transfer (p. 5).
ORISPA and U.S. West’s representatives brought a number of new details to the record
while reiterating their old positions in defense of the original language. Kafoury of ORISPA
decried the lack of consumer interest groups in the negotiations Olson held with AT&T earlier in
the month and noted a lack of faith in the FCC actually taking action on the open access issue in
its AT&T/TCI proceeding. Horswell estimated that should the compromise language pass, “the
estimated economic impact of broad band internet access being only available to TCI’s @Home
service would be $20 million revenue loss each year to the local economy from local internet
providers; 500 jobs gone; 40 providers out of business because of @Home’s monopoly; 100,000
internet subscribers left with no choice for high speed alternatives to their homes” (p. 6). He also
stressed the technical feasibility of an open access scheme and that “ORISPA is not seeking
access to TCI’s proprietary services; only to the last mile to the home. ORISPA is willing to pay
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for this access” (p. 6). To a question from Commissioner Miles regarding the relative costs a
consumer would pay to use a competitive provider, “Horswell responded that...diversity and
competition drive prices down and innovators [sic] tend to charge less than a monopoly” (p. 6).
Tim Sandos of U.S. West noted that the National League of Cities themselves now
promoted “affordable access to all competitors and assert[] that local regulation is essential to
prevent cable’s misuse of a monopoly position and protect consumer interests and long range
policy plans for telecommunication services.” While acknowledging his rebuke during the last
meeting, he still emphasized the importance of uniformity of regulation across providers. In
response to a question as to whether TCI would be required to offer its @Home service wherever
AT&T/TCI provided cable service, Sandos answered that “as a common carrier, U.S. West is
required to offer services universally, but ISP’s are not. Therefore, AT&T would be able to cherry
pick the highest revenue/profit customers [with its proprietary service]” (p. 6).
Despite Olson’s recommendation, the majority of the Commission was clearly ready to
slap down the new compromise language. The lawsuit threat only energized them. In the
moments before a decision was to be made, Commissioner Diciple said “she will not vote for the
compromise language because she [felt] it [was] just a punt to the FCC and the FCC will not act
soon. There won’t be a better time to secure open access than during this transfer proceeding; it is
within the jurisdiction’s authority; and it is good policy” (p. 7). Commissioner Saunders “said he
was in favor of taking more time to discuss a compromise after the last meeting, but believes the
compromise proposed favors AT&T and TCI to a ridiculous degree and he will not vote for it” (p.
7). Commissioner Harshman, an accountant and former Gresham City Council member, took a
different tack but found similarly: “[T]he Commission has three constituents -- TCI, the
jurisdictions and citizens. Internet providers are not constituents, nor is U.S. West…[moreover,]
the issue is about local control over local issues, and the Commission loses local control if it
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accepts the compromise” (pp. 7, emphasis mine). When Commission Chair Norman Thomas
requested a vote on the resolution and no ‘second’ was found for the proposal, in anticlimactic
fashion, the fight was enjoined. The original ordinance would stand, and given their
recommendation was approved by the Portland City Council and the Multnomah County Board
of Commissioners, AT&T would need to submit to the open access conditions or walk away.
Mere days later, on December 17, the Portland City Council and the Multnomah Board of
County Commissioners voted in favor of the recommendation. AT&T lashed out. Debbie
Luppold told the Oregonian, “The only area of authority the commission and the City Council
have are to evaluate AT&T’s technical, financial and legal qualifications” (Yim, 1998a). City
Commissioner Erik Sten was unwilling to cave to their displeasure: “I’m not surprised they didn’t
accept the condition, but I am disappointed...I firmly believed that our position is the right policy
choice and legal. It’s too bad the large companies would disregard the local desire” (Yim, 1998a).
Sten had been one of the Commissioners to encourage David Olson to submit the compromise
with AT&T to a MHCRC vote; he, alongside Olson, would be a public figure in this emergent
controversy. The flames spread: in an effort to thwart litigation, Senator Ron Wyden had
convened a “sometimes-heated” conference call of local officials and AT&T/TCI representatives,
but remained “neutral” on the issue of local authority. AT&T and TCI attempted to shock and
awe Portland Mayor Vera Katz by arranging a personal visit with ex-Oregon governor and ex-
Portland mayor Neil Goldschmidt. Sten was present for the strong-arming: he said Goldschmidt
“questioned ‘whether or not this fight was worth it’ compared to the benefits of having local
residential phone competition” (Yim, 1999). When AT&T and TCI filed their lawsuit in district
court shortly thereafter, Sten commented on the pending court battle, “In this world, we can’t give
away local power...We have enough cases in which local governments are left in the lurch by
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federal policy. The fact that AT&T is suing us is not nearly reason enough to back down” (Yim,
1999).
This represents a remarkable turn of events: even as AT&T and TCI had little to no
difficulty obtaining approval elsewhere, at all steps of the process in Oregon the behemoth found
itself stymied. Can we attribute this to the extraordinarily strong constitutions of the Commission
members themselves, as well as the City and County Councilmen who prevented any unvoted-
upon compromise from passage? In truth, they hardly acted alone: Portland provided a perfect
testbed—a vibrant local ISP community, an experienced regulator in charge—for a fight that was
radiating outward from Washington, D.C.

Washington, D.C. public interest groups make the connections

To read the trade (and even general) press surrounding these events, one would not be
remiss in coming away with the notion that public interest groups—occasionally quoted, but
rarely featured—only rode the coattails of the ensuing lawsuits and efforts of ISPs to gain access
to the new, faster transmission medium. It leaves this still-forming notion of ‘open access’ only
surviving as a largely irrelevant story of two corporate sectors bickering amongst themselves. The
generally-accepted dominant story to this whole affair is well-cast by the Wall Street Journal in a
mid-January 1999 profile of the Mt. Hood Cable Regulatory Commission (Gruley, 1999).
Following his broadband epiphany, “Mr. Olson was speaking with Steven Teplitz, a Washington
lobbyist for AOL. In Washington, D.C. at this time, AOL would have been seeking ways to
provide service over broadband networks; the prospect of a locality demanding a condition
allowing it to operate over a cable line would be most welcome. Mr. Teplitz also made contact
with Richard Horswell, the 27-year-old head of a Portland ISP and president of a trade group
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representing 40 Oregon ISPs.” Horswell noted to the Journal that speaking with Teplitz “really
helped focus our strategy.” AOL apparently then hired a local lobbyist to work for ORISPA, also
opening lines of communication with U.S. West to coordinate. In arguing the case to the MHCRC
commissioners, the ISPs were effective in part because “the small ISPs had been more diligent
about getting service to rural areas where bigger providers wouldn’t want to bother.” The author
of the Journal story was no fool, and (presciently) noted that “[s]ome observers believe that
AOL, in particular, is using regulatory pressure to help it cut a deal with AT&T” (Gruley, 1999).
AT&T argued to the Journal that “it shouldn’t have to open its network to rivals that aren’t taking
the risk of buying and upgrading it. Such a burden would discourage other companies from
investing in broadband technology too” (Gruley, 1999). AT&T’s arguments were deliberate: they
would continually direct attention to the potential competition to the Baby Bells they could
provide in telephony while leaving issues of new technologies to the side.
Perhaps the most dramatic untold story of this stage of the debate for the future of
broadband was the extensive, if unheralded, involvement of a set of well-ensconced Beltway
public interest organizations who provided the moral- and thought-leadership to the cause of
“open access.” Andrew Schwartzman, of the Media Access Project—a small law firm focusing
on public interest telecommunications and media law—noted recently that they were deeply
involved at the outset, working closely with Internet Service Providers AOL and Mindspring,
amongst others. They “had a coalition, a website, did outreach” with the ambitious goal of
convincing the FCC to “define broadband as a telecommunications service.” Doing so would hold
tremendous implications: whether a cable company or a telephone company, they would now be
seen as common carriage providers of the service and would be forced to offer access to end-
users on such a basis (personal communication, March 20, 2012).
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The core of this ecosystem comprised four policy groups who had been active for years
and had slowly built relationships with D.C. lawmakers and regulators. The Media Access
Project, headed by Andrew Schwartzman, a longtime advocate in the telecommunications realm
who had been partially responsible for the FCC’s equal employment opportunity rules amongst
other public interest victories, provided the legal expertise for this ecosystem. The Center for
Media Education (soon to become the Center for Digital Democracy), headed by Jeff Chester,
was the youngest of the groups involved, and was expanding its mission; Chester was the
rhetorical bombthrower, and was the one of the bunch concerned in particular with
commercialism on the emergent Web. Consumers Union, headed by Gene Kimmelman, was
well-resourced and established; Kimmelman was the polished lobbyist of the bunch. Finally, the
Consumer Federation of America, a loose coalition of consumer groups from across the country
that was partially funded through membership fees and individual donations, rounded out the
core; its Research Director, Mark Cooper, provided the needed analytical heft to the movement’s
arguments and legal filings. Together, they brought a certain form of constituency (via CFA’s
local partner organizations) and expertise to the table as well as a sense of the necessary coalition
politics involved in D.C. rulemaking.
6

In an early form of legislatively-oriented web activism, these groups collaborated to put
together a website representing an early rendition of online media activism to follow,
NoGatekeepers.org. While no vestige of its original form continues to exist (although the present
appropriation of the site is not dissimilar in function), the Internet Archive contains several
snapshots of the campaign. We excavate them a bit here, and will do so more deeply in the

6
A former colleague once told me that in Washington, in order to matter, one needed to accrue at least two of these
three things: constituency, expertise, and money. These groups possessed the second, yet needed to cobble together the
first. Streeter (1996) would also argue for a particular kind of expertise being necessary. These groups had his version
of it in abundance.

109
following chapter. This became the primary hub for all things open access, organizing press
releases by partner organizations, trumpeting independent research of their own, that of other
advocacy groups, and independent researchers, eventually publishing a short-lived electronic
newsletter devoted to the cause of opening up cable lines by baby steps, starting with multiple
ISP access. “This site,” its homepage announced, “is dedicated to educating the public, local, and
federal policy makers, advocates, and the press about the importance of open broadband networks
and the need to preserve competition in the Internet access market in order to protect consumer
choice, privacy, and freedom of speech” (NoGatekeepers.org, 2000a). By the time the campaign
had reached fever pitch, the groups adding their names to the core groups included the Alliance
for Community Media (which advocated on behalf of public access stations on cable networks);
the Benton Foundation (which focused on the public interest obligations of broadcasters), the
Civil Rights Forum on Communications Policy, Computer Professionals for Social
Responsibility, the Consumer Project on Technology, National Association of Counties, OMB
Watch, and two utility-reform organizations, Toward Utility Rate Normalization and Utility
Consumer Action Network (NoGatekeepers.org, 2000a).
When the Wall Street Journal wrote of the initial contact between AOL and U.S. West’s
representatives, it left out the likely initial introductions that this core group of public advocacy
groups provided. AOL provided material resources to enable NoGatekeepers.org to function.
“This site,” the “About Us” page disclosed, “is maintained by Leslie Harris and Associates, a
public interest government relations firm, and is supported in part by America Online. America
Online does not exercise any editorial control over the content of this site” (NoGatekeepers.org,
2000a). It is profoundly significant that AOL had the resources and additional wherewithal to hire
a lobbyist that paid attention to the Portland negotiations. Such strategic partnerships with sectors
of capital itself would become a standard feature of such Washington-based organizing work,
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even as debates drifted further and further from the question of whether there were to be any
particular specific public purpose to the emerging Internet.
The issues debated at the local level, however, were much more practically-based.
Returning to the debate in Portland and Multnomah County, in a later interview, Erik Sten noted
that in regards to the ‘open access’ issue (to the extent it had that name at the time), his own first
meeting on multiple ISP access to cable lines was with ORISPA. To arguments that such access
to cable lines was not important, Sten’s response was:

There’s been a lot of false statements put forward by the other side on this,
saying that local governments that move forward on open access are tools of the
companies opposed to cable. It couldn’t be farther from the truth, at least in
Portland. There are two points here. First, local ISPs add a lot to the life of the
city. They are likely to have better targeted local content. For example, our
biggest local ISP, Teleport, offers substantially discounted prices for websites to
nonprofits that are based in Portland and they do that on purpose to build a niche,
but it’s also a wonderful service that’s available. Our city is having a boom in its
economic growth. We’ve been doing great for 10 years. We’ve also in the last
few years seen a lot of our major local companies bought and moved out of town,
and as a result our local tax revenues are down a bit. I’m not complaining about
that, but this has made it clear that companies that are owned and based in your
city are better for your city. The employees keep the money here, and the
companies tend to be more civic oriented. But they also just have a local flavor,
they’re not national players. We have several hundred of them in Portland, if I
recall correctly, and only five or six of them are very big. So almost all of those
local companies are making a living based on some local niche, whether it’s
expertise on local nightlife or something else you’d never get from a big ISP. I
think that’s a very important piece ("Interview with Erik Sten," 1999).

Summarizing his own experience with the fight, “If I understand the chronology right, we
were early on, in the sense that the real fight started with our rule. But we were quite late in the
hundreds of governments that approved this transfer, but I don’t think that most of them really
looked at this issue. Fortunately, we have a brilliant cable administrator in David Olson. He’s a
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public administrator and he’s done this for his whole career, and he saw this coming. That worked
well with our city council, which was willing to stand up for it.”
Much as the lawsuit threat from AT&T/TCI served as a galvanizing force which stirred
the Mt. Hood Cable Regulatory Commission into action, the actual filing of the lawsuit in district
court colored the ex parte submission Olson made to the Federal Communications Commission in
late January 1999.
7
By this time, it was clear that they were networking with other municipalities,
noting, “Many local franchising authorities and our local regulatory colleagues around the
country have shared their concern with us regarding the likely negative impact on both consumers
and the Internet of the cable industry as the bottleneck gatekeeper of broadband internet access,”
(Mt. Hood Cable Regulatory Commission, 1999a, p. 18). Further, they had “learned that just prior
to the date of this filing the City Council of Los Angeles, California has expressed support for
open access as a policy matter, and that the Executive of King County, Washington (comprising
the suburbs of Seattle and including approximately 100,000 TCI cable subscribers) has
recommended that the King County Council impose a similar ‘open access’ condition” (Mt. Hood
Cable Regulatory Commission, 1999a, p. 6n14). The Wall Street Journal, in its extended piece
about the Portland decision, noted that Los Angeles officials were flying Olson to town in order
to discuss his commission’s actions. Olson was not the only player on the move: with additional
pressure evolving in other cities, AT&T dispatched its top counsel, Jim Cicconi, to meet with
local governments in person (Gruley, 1999).
The MHCRC was at pains to tell the FCC that this transaction “was no ordinary cable
transfer” in which cable companies sought to take advantage of economies of scale and scope
through clustering of their franchises; rather, “the filing and the previous announcements from the

7
When one lobbies staff or Commissioners at the FCC in regards to an issue on an active ‘docket,’ one is required to
submit an ex parte document describing one’s conversation. It is also a way to submit semi-formal comments into a
particular proceeding if the deadline for original or reply comments had passed. The latter was the case in this instance,
as the MHCRC wished to comment on the pending AT&T/TCI merger.
112
parties described a transfer with national significance: a change in control of one of the largest
cable operators in the nation to one of the largest telecommunications companies in the world”
(Mt. Hood Cable Regulatory Commission, 1999a, pp. 12-13). They were mystified by the
reaction of then-FCC Chairman William Kennard to their actions: during an interview Kennard
gave to Charlie Rose on PBS in mid-January, he made comments “to the effect ‘we must be very
careful in imposing regulations on nascent technology’” (Mt. Hood Cable Regulatory
Commission, 1999a, p. 17n32). In strong terms, Olson responded,

In the final analysis, MHCRC did not consider an ‘open access’ requirement to
be, in any manner, a constraining level of regulation on a nascent technology.
Rather, the thrust of the MHCRC recommendation was toward open markets—
not regulation, toward competition—and not monopoly. We continue to feel
strongly, on legal as well as policy grounds, that the essential nature of our open
access recommendation was one that strongly encouraged the continued growth
of an unfettered, unimpeded, vibrant Internet—with many choices available on
many platforms—and we would oppose any regulations that demonstrably
produce an opposite result (Mt. Hood Cable Regulatory Commission, 1999a, p.
17).

Their motivation for acting as they did, they explain, included “the pro-competitive
pronouncements and provisions of the Communications Act” and “a sincere attempt by the
MHCRC staff to follow the FCC staff’s latest thinking on ‘Internet Over Cable’”—there
referencing directly a paper by Barbara Esbin released by the FCC Office of Planning and Policy
Analysis entitled “Internet over cable: Defining the future in terms of the past.” In particular, the
MHCRC noted,

“Ms. Esbin’s paper was particularly relevant in its affirmation that ‘The FCC
could reasonably conclude that cable Internet-based services, such as Road
Runner, @Home and like offerings, when provided by a cable operator over its
cable system in its franchised service area, come within the definition of ‘cable
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services’ under Title VI’” (Mt. Hood Cable Regulatory Commission, 1999a, pp.
4, referencing p. v of the report).

This is pretty gutsy use of an FCC working paper that also argues that the FCC must
“forbear from imposing the Computer II regime on cable provided-Internet access services,”
unless “the cable Internet platform currently stands as an essential barrier to ISPs reaching their
customers” (Esbin, 1998, p. 96). The MHCRC’s chief request of the FCC was the opening of “a
regulatory proceeding to assist in clarifying the matters at issue here, so that a nationwide
resolution of these important national communications matters can be expedited” (Mt. Hood
Cable Regulatory Commission, 1999a, p. 6). Cable was far more ubiquitous to households than
DSL-capable telephone lines; and while its advertised speeds closely hewed to those of DSL, it
was capable of far more speed: to these local regulators, it was a class of its own. Despite the
cable wire’s superior capability to offer broadband access, the “considerable progress” made in
“opening up the telephone wire to competition by requiring the monopoly incumbents to provide
wholesale access to resellers” had “barely begun” over the likely victor of the broadband wars.
The lawsuit itself left quite an impression on the MHCRC, worth quoting at length:

It is now abundantly evident from our process here that AT&T/TCI intend to do
everything possible, including filing litigation, to maintain bottleneck control
over the cable customer’s initial entry to the high-speed cable Internet platform.
Such control is maintained by requiring each cable customer to enter the high-
speed Internet world only through the proprietary platform (e.g. ‘@Home,’ ‘Road
Runner’) of the incumbent cable operator, before reaching other platforms, ISPs,
and content providers of the consumer’s choice. Without a broad menu of
wholesale access through the cable modem, it is not clear to us that the present
great variety in narrowband retail access choices (through online providers and
ISPs) will survive commercially long enough to provide similar economically-
disparate or technologically-vibrant competitive choices to future cable modem
customers. ...The MHCRC submits that such an anti-competitive scenario is
clearly wrong. It is self-evidently not in the public interest. It appears contrary to
every hard-earned lesson of public telecommunications policy this great nation
has learned at least since the 1982 AT&T breakup. ...If the current policy
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pronouncements of federal law have any real meaning, the MHCRC believes that
the FCC, Congress, and franchising authorities should together and immediately
be doing everything possible to prepare cable networks for the competitive, open
cable platform which longstanding national communications policy clearly
contemplates, and we should [do] so despite whatever statutory or categorical
confusion may now exist (Mt. Hood Cable Regulatory Commission, 1999a, pp.
20-21, emphasis theirs).

The MHCRC was sensitive to the possibility of explicit and implicit redlining: implicitly,
they noted the different costs for differential speeds aboard the Internet. “Surely the FCC does not
seek to encourage an Internet access marketplace where the economically disadvantaged (e.g. the
poor, public schools, and libraries) are trapped in a low-speed, low-tech ‘text-only’ Internet
world, while businesses and the well-off enjoy the high speeds, dense graphics, and multimedia
options growing every day on the Internet. … [The] development of a information ‘haves’ and
‘have-nots’, divided by purchasing power, is a social result devoutly to be avoided” (Mt. Hood
Cable Regulatory Commission, 1999a, pp. 14-15). Given the lack of common-carriage
requirements over the cable wire, they expressed concerns about the proprietary @Home platform
only being delivered to high-profit customers, resulting in ‘de facto redlining.’ Local
governments, they argue, had a role to play to

retain and utilize regulatory tools available under existing franchise agreements
and federally-recognized consumer protection authority to ensure that no de facto
redlining or discrimination in price and availability occurs. This may well
become an increasingly critical issue given the general availability of cable
connections in urban areas, and the potentially superior technical ‘fit’ for many
households to the robust cable platform as compared with the more limited DSL
and other options available on the narrowband telephone platform (Mt. Hood
Cable Regulatory Commission, 1999a, pp. 14-15).

While these were concerns about the market, these were also concerns to be rectified,
ironically enough, via ‘the market.’ “The MHCRC hopes that the FCC will not through inaction
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encourage investment and deployment of a proprietary cable modem platform which will be
dominated by a single, incumbent cable carrier,” they wrote (Mt. Hood Cable Regulatory
Commission, 1999a, p. 15). One is struck at how the logic of the MHCRC both challenged and
expanded a certain kind of dominant neoliberal logic as a kind of solution to problems of resultant
inequity, carrying forward both a mutual confidence in yet suspicion of commercial providers of
communication needs. The MHCRC’s take on what stands in for the public interest is worthy of
note:

The public interest is best served by providing for robust competition and choice
in the thriving Internet market, a market which is clearly more important every
day. …’Open access’ is especially important because of the critical need to
ensure that a maximum variety of choices concerning high-speed access to the
Internet be available to users and citizens of any income level or social status
(Mt. Hood Cable Regulatory Commission, 1999a, pp. 13, emphasis theirs).

Free speech issues had not even entered the argument yet. Nor was this an issue at base
with commercialism per se. “The Internet was in fact begun for governmental and public
interest—not commercial—purposes. The recent and extraordinarily rapid development of the
Internet into a commercial success (‘e-commerce’), is to be applauded, and will enhance the
Internet’s importance as a gateway enabling consumers to bring competitive goods and services
into their homes” (Mt. Hood Cable Regulatory Commission, 1999a, p. 19).

The wildfire spreads

On the heels of Portland and Multnomah County’s decisions, in early 1999
multiple points of attack on AT&T’s efforts to maintain a closed network emerged. Denver was
set to debate a similar provision, egged on by ISP lobbying in TCI’s hometown of Denver for
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similar conditions to those obtained in Portland and Multnomah County. Thus if AT&T had
hoped that their lawsuit would stop wildfires from burning brighter, they were failing, as
municipalities shared information. U.S. West’s Tim Sandos, fresh off his efforts in Portland, was
on the move. One account noted, “[A] Denver ISP coalition accused AT&T-TCI of acting like
monopoly and having unfair advantage over telcos, which have to open networks to competitors.
AT&T-TCI would be ‘biggest player on the block,’ U.S. West Public Policy Dir. Tim Sandos
said, and all ISPs want is ‘fair treatment and parity.’” The coalition was headed by Rocky
Mountain Internet; and it and telecom incumbent Qwest “emphasized their local connections as
Denver-based companies,” even as they were aided by America Online, Echostar, Mindspring,
and Verio ("ISPs band together," 1999). AT&T and TCI took no chances as Denver took up the
question, and heavy lobbying commenced of its city council (Diddlebock, 1999). In Dallas, TX,
the City Council postponed decisionmaking on the transfer of their own TCI franchises pending
further consideration of the Internet open access issue. Councilman Larry Duncan, who himself
had worked in the computer industry for decades, was “pushing hard for open access provision”
but “said it’s difficult to predict [the] outcome because most members are getting [a] crash course
on the topic” ("ISPs band together," 1999). In February, the Metropolitan King County, WA
Council had endorsed non-discriminatory access to cable modems, but called upon an Expert
Review Panel to investigate the issues involved with carrying out the policy (Consumer
Federation of America, 1999a).
Others took a different tack. Internet Ventures, Inc. approached the “leased access”
requirement on cable providers as a means of obtaining access to their systems: if purchasers of
such access for video were just purchasing bandwidth, after all, why not provide a service
instead? In reaction, Wesley Hopper, a lawyer representing TCI and others, notably said that the
company was “welcome to try to convince the FCC that data is video programming...They’re
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going to have a hard time doing that.” ("ISPs band together," 1999). The fact that AT&T’s core
argument in Portland was that data transmission can and should be construed as of a similar
category as video when provided over a cable system was immaterial.
Even as the Janus-faced AT&T made such arguments, ISPs looking to find their way
onto their networks were too-clever in their own right as their interests meshed against a common
foe. Regarding their unusual “growing unanimity” on the issue, Mindspring’s vice president of
regulatory affairs told trade press, “We compete against each other every day for customers…We
want to keep competing” ("ISPs band together," 1999). Hyperbolic, and not entirely true (they
would really prefer to wipe each other out), but it made for a good contrast with AT&T-TCI: one
side could muddy the waters as well as the other.
In an interview with writers from the San Jose Mercury News, AOL’s Chief Executive
Steve Case noted regarding the regulatory situation, “We’ve never asked for cable to be a
common carrier. We’ve asked that cable companies open up their network and provide it to others
to resell in a non-discriminatory way, much as the cable industry now has certain non-
discriminatory policies regarding how they pick programming....I can say that versus six months
ago, when people weren’t even realizing it was an issue, there’s a growing recognition from a
public-policy standpoint that stimulating competition in broad-band is important” ("America
Online chief," 1999).

Assemblage articulated

The brushfire the Mt. Hood Cable Regulatory Commission sparked would erupt into a
fierce blaze between cable conduits, the services which rode upon them, and the more cynical
intentions of local Bell companies. Meanwhile, at a deeper level, a set of new struggles were
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being enjoined. One was foundational, the other was definitional. Given the types of fights
involved, particular forms of activism were engaged which would set the tone for the next
decade. A crucial assemblage was crafted that otherwise would have simply been trampled in
Washington, D.C. politics: one grown not from the grassroots-up, but deliberately cultivated by
seasoned players in national politics with a particular sense of the requirements of “the public
interest” and who also possessed particular forms of knowledge and expertise in specific realms,
realms which required no small amount of institutional memory to be effective. By the same
token, such knowledge, and their choice to engage the debate in its particular terms and
foundations, would mean that they were largely appropriating neoliberal imperatives to topple
them under their own weight. In the process, they would receive little credit or notice in the long
term.
A new, foundational front was opened in the policy debates surrounding the structure of
the Internet as it emerged into the commercial realm and was moving into high-speed, one firmly
ensconced in the unpredictable auspices of local officers, numerous volunteers, with little
financial or other stake in the outcomes in these debates, as opposed to the interests of the vested
actors. At this level, localities were discovering that a particular ‘kink’ in telecommunications law
enabled them to render the politics of an entity largely without place ironically and absolutely
place-bound. The local franchise board was suddenly a cable provider’s worst nightmare: most
worrisome for AT&T, these organizations were themselves networked. Each locale was
unpredictable: some might easily grant AT&T its wishes with nary a fight; but then there were the
Portland and Multnomah Counties who might stir others to action. It did not help that cable was
one of the least popular industries in the country due to their exploitative rate hikes to which
consumers were particularly sensitive. Finally, they were willing to make their case national: in
their ex parte comments to the FCC regarding the takeover of TCI by AT&T, they were not
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bashful in making their points. Thousands of new pressure points of activism were born, an
outcome crucially immediately seized by activists in Washington—an outcome, too, that they
fomented themselves.
This revolt would come at a cost. In seeking to redefine ordinary users of advanced
services away from their traditional roles of mere consumers (that were both payers into a cable
system and a commodity to be traded to advertisers and to content partners), how resultant
activism could be practiced was altered. If the market for liberalized networking services arose
from the corporate sector, here was a desire to force the same in the residential one: this would
need to be forcibly obtained. The MHCRC filing noted that, “In making its original
recommendation to Portland and Multnomah County, the MHCRC consciously sought to carry
out what the MHCRC and its staff sincerely understood to be a broad, federally-encouraged
policy of providing for competition, deregulation, and an open and accessible marketplace in
communications and Internet access” (Mt. Hood Cable Regulatory Commission, 1999a, pp. 6-7).
It meant this was not a fight against capital at all even if it felt as if it were. This first salvo in a
post-Telecommunications Act ‘consumer rebellion’ was an effort to push back against the worst
of the neoliberal drive to increase the bounds of market authority via its own logic. It does not
question the commercial imperative already at work upon the Internet universe at the time, still
formative, something advocates, as we shall see, were well aware. With the question of a
commercial or noncommercial Internet off the table at this point, even as noncommercial services
were one of the aspects defended, the logics of this unfolding struggle only rang their death-knell
more loudly. The operative logics, those that shunted such worries aside in favor of arguments
over competition and strains of antitrust law that would serve as their proxy, were necessary to
continue to be invited to the table in Washington during this time.
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The involvement of Washington advocates—their necessary coalition-partners and their
theoretical commitments—thus fomented and supported a particular form of discursive norm in
Portland that set the tone for the remainder of the debate. Quite possibly, it was one handed down
from activities in Washington by activists working in collaboration with their corporate allies,
even if such alliances would be temporary. An opportunity was gained: even as AT&T and its
partner (however disastrous the relationship, and it would be quite) did plan on crafting a closed
system in regards to content and services, a powerful frame had been discovered to combat this.
An opportunity was lost: here was an early chance to call out likely systemic imperatives that
would stem from the commercial imperative online, a desire to maintain old business models
while instituting new forms of revenue growth as the Web was still being catalogued and
semantically understood. In lieu of a popular effort to question the commercial foundations of the
Web, instead an extraordinarily expensive and expertise-laden mode of advocacy was enjoined—
a mode whose expertise, crucially, was of a particular stripe. It was not a struggle in which just
anyone could take part with any credibility. The involvement of local authorities as the front-line
cavalry reinforced these boundaries.
It was an imperative, too, with a restricted horizon: that of the potential closed-universe
of the provider itself, leaving aside the universe in which that provider operated. In a time of
terrific uncertainty—the FCC had yet to produce its first assessment of delivery of ‘advanced
telecommunications services’ to the United States—localities only had their own experience from
which to draw. In a form of near infinite regress, what may appear competitive at a national level
is anything but at a point of purchase, and thus what was in the making was a project of
scalemaking, of determining where markets needed to be accrued.
Perhaps in a high irony, what could on the one hand be seen as a pivotal consumer
victory could also be read as a high-point of the embedding of a particular neoliberal discourse in
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everyday life but reflective of local concern and experience. Via this lens, it should not be
surprising that the Oregonian spoke of these citizen-advocates in such glowing terms. In
hindsight, this was not an extraordinary battle; it was quite ordinary for its time. Their efforts
were not counter to the aims of capital, but were productive of its logic, nourishing a broader
notion of the ‘rightness’ of markets to provide solutions to the problems of markets, with no real
distinction beyond scale to draw distinctions between them. AT&T, in turn, should similarly not
have been surprised at all that some locality like Portland (but it could have been anywhere,
really) chose to engage them, since the logics it professed provided them the ammunition with
which to strike back; its ISP partner’s continual overreach in its ambitions (hubris, really)
presented who would have been otherwise irrelevant actors in Washington the very brick to toss
through the window in the process.

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Chapter 3: Knowing the Net (1) - Apex

The fight in Portland, now radiating outwards at a rapid clip, was the result of an
imported policy framework from debates centered in the nation’s capitol. In addition to the public
interest quartet core of Consumer’s Union, the Consumer Federation of America, the Media
Access Project, and the Center for Media Education, on the industry side the OpenNet
Coalition—a continuously-growing coalition of ISPs and other anti-cable forces, including
GTE—provided vital material resources to bear. AT&T and cable interests defended their
‘closed’ system; OpenNet sought access to these systems; and the regional Bells sought the
ability to close their systems (or, at worst, ‘level the playing field’ by submitting their cable
brethren to similar line-sharing conditions). Yet among this amalgam of conflicting industry
interests, the core consumer advocate groups provided the front line of argument seized upon by
others: they provided the fuel that fed the blaze and, to the extent this debate had one, provided its
moral compass. They seemed ubiquitous where the struggles were strongest, with the Consumer
Federation of America in particular utilizing its nationwide network of member organizations to
provide the needed constituency necessary to allow Mark Cooper, Research Director, to play a
major role in providing comment to local franchise authorities across the country. His efforts
were enjoined by the other three core organizations the whole way, and anywhere a locality
seemed willing to put up a fight, they were seemingly everywhere at once, particularly as the end
of 1999 approached and these local franchise authorities were in the midst of peak lobbying by all
sides. Their role in influencing these debates cannot be underestimated. By the same token, when
one takes stock of their achievements and the ways in which they shaped and shifted debate, we
are left with a variety of ambivalent and ambiguous outcomes on several levels. This is surely one
of the most significant episodes in the development of the commercial Internet—particularly
since no other frame was on offer.
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Such mobilization had significant material costs. One New York Times piece, often cited
as showing the “odd bedfellows” contained in the coalitions that formed around the issue, does us
an entirely different service, revealing the sheer cash resources necessary to be a part of this
particular fight (Labaton, 1999). “While a precise figure on spending on the lawyers and lobbyists
and for campaign contributions is not available, executives and lawyers involved in the case
estimate that it is already in the tens of millions of dollars,” the Times noted. The ‘revolving door’
was a crucial factor in hiring decisions. The paper reported that AT&T and the cable industry had
“retained many of Washington’s lobbyists” including a former Republican representative from
Minnesota and a lobbying firm started by a major Democratic fundraiser. James W. Cicconi,
general counsel and head of government relations for AT&T, was a former aide to George Bush
and had been active in fundraising for George W. Bush. George Vradenberg, the general counsel
for America Online, was a top adviser and fund-raiser for John McCain. Greg Simon, who headed
up the OpenNet Coalition, had worked for democratic vice president Al Gore; he was
collaborating with Richard Bond, former chairman of the Republican National Committee. The
regional Bell companies themselves had hired three well-connected advocates: Haley Barbour,
former chairman of the Republican National Committee; Susan Molinari, former Republican
Congressman from Staten Island; and Michael McCurry, former Clinton press secretary. The
campaign donations stemming from this inter- and intraindustry fight, the Times reported, would
likely result in neither presidential candidate taking a side, lest the money stop flowing from the
losing side.
Perhaps more striking is an underexamined practice in Washington also revealed by the
piece. AT&T had put numerous law firms on retainer—those, presumably, with expertise in
telecom issues—simply to make it impossible for opponents to hire them due to conflicts of
interest. Greg Simon of the OpenNet Coalition told the Times, “A lot of people have told me that
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they owe me thank-you notes...They were retained just so I couldn’t hire them. In Washington it
took weeks to find somebody who was not lobbying for AT&T. I could not find three firms that
had not been retained on the issue.” To illustrate the point, later that year, advocates in the
continuing Portland court case needed to file briefs with no less than fifteen law firms to serve all
the parties involved (Citizens' Utility Board of Oregon, et al., 1999, pp. 28-29). The Times further
noted “Potemkin-like efforts at organizing” by “Astroturf campaigns, in contrast to grass-roots.”
The article called rallies in front of San Francisco City Hall “contrived;” and “both” sides have
“made extensive use of telephone banks to gin up support by asking loaded questions and making
alarmist predictions.”
The article is also instructive in that while it notes that “consumer groups and AT&T’s
rivals say the battle is as much over principle as it is over business,” the go-to source for the
‘consumer’ standpoint was Donna Lampert who had left her old firm (which represented major
cable companies) to work for AOL. Not even the token advocate from the consumer groups was
quoted at the time when this article was written, in August, 1999—after Portland won its initial
suit against AT&T, after advocates had stirred Congressional actors to action, after localities
across the country had commenced fighting to follow Portland’s lead. This, sadly, was exactly the
price consumer advocates’ strategy would be. Up against such intractable odds, advocates played
a skillful game of cat-and-mouse with all sides of the corporate sector and the Federal
Communications Commission itself, leveraging their connections in the states to bring more
localities into the fold.

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Finding a space between capitals: constructing a conceptual frame

The Washington, D.C. based consumer groups had been constructing what became
known as ‘open access’ as a concept for many years. It was hardly new: it was simply an
extension, a defense, of the notion of the common carrier applied to new technologies; more
accurately, it applied conclusions wrought via the Computer Inquiries to consumer telephony.
These groups, in particular the Consumer Federation of America, felt the tensions between new
technologies and this model at least as early as 1989, when CFA published a report with the
American Association of Retired Persons entitled Expanding the Information Age in the 1990s: A
Pragmatic Consumer Analysis. In the years-long lead-up to the Telecommunications Act of 1996,
telecommunications companies were seeking greater control over the operation of as well as the
content which passed through their networks as a “quid pro quo for increasing investment.” CFA
and AARP concluded that “such a union of conduit and content was antithetical to the consumer
and public interest. Owners of wires should not be allowed to determine what services can use
them. They should sell space on the wires and stay out of the programming business” (Consumer
Federation of America, 1999b, p. 4). Their report discerned two competing models in play: a
“decentralized and consumer based approach” versus a “centralized, network based” approach
(with ‘network,’ in this sense, referring to the ‘telecommunications network,’ not some broader
theoretical appeal to network action).

[E]ach of the models emphasized different characteristics of a
telecommunications system and maximizes different goals. Decentralization
emphasizes private and individual motivations. Risk and reward are borne by
individuals and it is the willingness of individuals to incur costs in the hope of
achieving benefits that dictates specific applications. ...Centralization fosters
larger decisions and commitments of resources which seek to enhance the social
good by achieving economies of scale and scope. The telephone company makes
larger, collective purchases and allocates costs to various services. Lowered costs
and internal transfers between groups are intended to effectuate a [] more even
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spread of services. Costs are socialized and benefits allocated through centralized
decision making of the franchise monopoly firm and regulatory bodies (quoted in
Consumer Federation of America, 1999b, p. 5).

Even before the Mt. Hood Cable Regulatory Commission commenced its deliberations,
the tug of war between these two models was rearing its head in consumer filings at the Federal
Communications Commission as it considered how to cope with its new “Section 706” authority
given it by the Telecommunications Act.
8
The ‘open access’ signifier, of course, was yet to arrive;
in the late 1990s, the argument of key self-professed ‘public interest’ activists rested on concerns
regarding free expression, noncommercial content’s survival, basic access to the emerging
medium, and the pressing issue of Internet ‘portals’—entry points to the nascent commercial Web
often providing search features. Broadband was at the forefront of their minds, along with its
most likely market leader in its provision: cable companies, given their already broad reach and
their ability to upgrade to much faster speeds than their telecom-industry consumer counterpart,
DSL. In mid-September, 1998, the Center for Media Education, the Office of Communication of
the United Church of Christ, the Minority Media and Telecommunications Council, the Civil
Rights Forum, and the Consumer Federation of America were noting with trepidation the

8
This section required it to “encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans…by utilizing, in a manner consistent with the public interest,
convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the
local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”
Further, the section required the Commission to “regularly…initiate a notice of inquiry concerning the availability of
advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools
and classrooms)…In the inquiry, the Commission shall determine whether advanced telecommunications capability is
being deployed to all Americans in a reasonable and timely fashion. If the Commission’s determination is negative, it
shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure
investment and by promoting competition in the telecommunications market.”telecommunications capability to all
Americans…by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap
regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other
regulating methods that remove barriers to infrastructure investment.” Further, the section required the Commission to
“regularly…initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all
Americans (including, in particular, elementary and secondary schools and classrooms)…In the inquiry, the
Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a
reasonable and timely fashion. If the Commission’s determination is negative, it shall take immediate action to
accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting
competition in the telecommunications market” ("Telecommunications Act of 1996, 47 USC 12 §1302 (a)," 1996).
127
implications of cable companies rolling out proprietary high-speed Internet access. They stressed
the success of a common carrier model in serving as the foundational infrastructure for the
Internet so far, with implications for First Amendment concerns:

Because under common carrier regulation no one entity controls the information
that can be placed on the Internet, and no entity limits what information a citizen
can obtain on the Internet, the Internet is the most democratic and free medium
that has thus far been produced. … [T]he traditional common carrier prohibition
against bundling transmission services with enhanced or information services
should be applied to other providers of Internet access (Center for Media
Education et al., 1998, pp. 12-13, references omitted).

Even more starkly:

“Some may argue that, as long as customers may always reach any Internet site
by typing in an Internet URL address, the identity of the initial browser or search
engine is irrelevant. The very intensity with which the cable industry is willing to
fight the battle to retain control over the gateway provided on cable Internet
systems belies the truth of that argument. The financial agreements between
portal providers and advertisers belie the truth of that argument. The decision to
create portals by increasing numbers of corporations belie the truth of that
argument. ... Who can predict whether cable operators may find it a competitive
benefit to limit the information its subscribers receive? For example, for several
years well-known search engines have favored particular corporations in
exchange for financial remuneration. While this is a form of content-control that
can be remedied through competition, it cannot be remedied if Internet users are
wedded to a single gateway choice” (Center for Media Education et. al., 1998,
pp. 14-15, footnotes omitted).

These worries are, certainly, timeless. That it was these groups who took them on is
significant. These are liberal worries, and the proposal which would come to be known as “open
access” was not theirs: far away from a common carriage regime, they took the then-independent
America OnLine’s proposal as the policy innovation they would advocate. “AOL’s proposal to
require equal, non-discriminatory access by all ISPs would be a good measure that falls far short
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of imposing full network unbundling on cable operators. If competition develops, the protections
instituted to address the monopolistic provision of Internet access can be removed. It will be
much easier to adopt rules now to promote competition than to allow a monopoly to solidify and
break it up later” (Center for Media Education et. al., 1998, p. 16).
Implementation of this objective was not something they were going to be able to leave
in obscure FCC dockets. Working alongside their erstwhile corporate allies in the OpenNet
Coalition, the group made strong use of NoGatekeepers.org and their own websites to broadcast
their arguments and talking points. By teaming with AOL, these advocates were also indirectly
allying themselves with the regional Bell companies that simultaneously were trying to free
themselves of the ‘deregulation’ that they themselves supported in 1996 while pushing cable into
the regime that governed their own existence. This would be no grassroots movement: this was a
full-on effort to gain converts.
Consumer Federation of America and watchdog group Consumer @ction outlined their
long-operative strategy behind this effort in a policy document released in late 1999. “Consumer
advocates may find the prospect of getting into the middle of a dirty and bloody fight between
these commercial interests less than attractive,” they write, “but the issue at stake is too important
to ignore.” With AT&T gobbling up cable systems with its exclusive ISP, should AT&T succeed
in shutting down multiple ISP access over cable, “Two private toll lanes cannot replace an open
superhighway” (Consumer Federation of America and Consumer @ction, 1999). While the FCC
was still feeling its way with the broadband issue, it was clear that localities held the key to
present pressure in favor of their position. “[T]he fact that local authorities have a direct link to
the open access debate makes it even more attractive as a point of leverage. The issue is removed
from the backrooms of Washington and subject to much greater public scrutiny and more diverse
input” (p. 11). The reasons were obvious to them:
129

Department of Justice merger investigations are conducted with the utmost of
secrecy. The DOJ asks questions in private and negotiates with parties, barely
even acknowledging that an investigation is under way. The Federal
Communications Commission typically takes written testimony and hears from a
small number of experts, but does not allow discovery or cross-examination.
Once the issue has moved to the front burner at the local level, it has resulted in
an intense public information gathering process (p. 12n35).

Finally, and crucially,

[O]utcomes that are truly in the public interest have a tendency to emerge when
powerful commercial interests cancel each other out, as may happen in this case.
Because the commercial interests may neutralize each other, it [is] possible to
have two open networks [cable as well as DSL] to promote broadband Internet
services” (pp. 11-12).

These consumer advocates were less ‘sandwiched’ between the corporate factions
involved than deliberately planting their flag on one side. They were forced by the circumstances
to pick the side of the ISPs, with the top two in the country as ringleaders who possessed
resources to advocate in their interests. As Chester would note later, “The OpenNET Coalition
itself, of course, is not without its own brand of corporate self-interest. But as others without a
vested interest in the outcome of the broadband battles have made clear, Main Street as well as
Wall Street should have a say in this matter. An open, competitive, democratic broadband
Internet is simply too important, not only for average Americans, but also for the educational,
civic, social, and cultural organizations that serve them” (Center for Media Education, 1999, p.
6). GTE, despite serving as a member of this coalition, itself operated a closed network.
Nonetheless, this unlikely combination of “open,” “competitive,” and “democratic” would govern
exactly how they handled the issue of what open access was. It would end up being first and
130
foremost a set of principles for doing business that would be undertaken by private actors, and
only second a set of principles for free speech. It was expected that the first would bring about the
second, a quite striking equation of competition with democratic outcomes.
The utility of the small space into which these activists had inserted themselves revealed
itself on numerous occasions. For one, at the en banc FCC hearing referenced during the pivotal
December Mt. Hood Cable Regulatory Commission meeting, Gene Kimmelman used it to terrific
effect. Upon U.S. West’s expression of desire of subjecting cable to a full unbundling regime (as
with telecom), Kimmelman was able to respond, “I’ve been listening to my colleagues. I would
like to associate myself with the thrust of much of what they are saying. It is one happy
opportunity to say that I probably actually would encourage you to do a little less regulating than
U.S. West but I think the general thrust of all the comments are right on point” (Federal
Communications Commission, 1998, p. 179).

Flesh on ‘open access’ bones

Consumer advocates’ borrowed policy innovation was developed further as they seized
on the MHCRC’s actions. This was a crucial moment in the concept’s history: the notions which
emerge are quite of a piece of the given neoliberal moment: a suspicion of markets is solved via
yet more marketization, now put to the intent of preserving in certain instances noncommercial
content. Strong competition would be turned into a weapon against the commodification of the
consumer herself. Such understandings of commoditization, looked through today’s lens, are
decidedly primitive; even at this moment new advertising networks were being established to
track these individual users. The appropriate ‘read’ of these events, seen from the vantage point
131
of history, is a foundation-laying for exactly this type of tracked subject via a particularly
truncated vision of freedom from commoditization.
On January 27, 1999, the Consumer Federation of America, Consumer’s Union,
Consumer Project on Technology, Computer Professionals for Social Responsibility, the Media
Access Project, and the Center for Media Education filed an ex parte with the FCC calling for a
proceeding specifically about ‘open access’ conditions on cable. This letter explicitly laid out the
concerns of a closed-access world in terms of the operation of broadband networks, expanding
upon the innovations wrought by the MHCRC. As the Commission’s mandate “requires it to
promote the free flow of information in the marketplace of ideas,” they note,

If, in the broadband future, the Internet no longer rests upon open, accessible
infrastructure, consumers will suffer and the public interest benefits of today’s
market-fueled service competition will be lost. To be sure, the diverse array of
service choices will no longer be supported, as consumers are funneled to the
providers with financial ties to last mile facilities owners, regardless of
consumers’ needs or preferences” (Jeffrey Chester, et al., 1999, p. 2).

Open access, post-Portland now a tractable term, would need to be filled with semantic
content and sold to localities. Olson was already doing so, and Washington advocates
commenced doing the same. Andrew Schwartzman, writing to the City of Los Angeles in
response to their own call for input on this new policy tool, noted that the solution to salvaging
noncommercial content as the Internet rapidly commodified had everything to do with possessing
a choice amongst providers of Internet access via any broadband medium.

“Noncommercial content and services, such as those hosted by local free-nets
and not-for-profit entities working with local service providers, may … fall to the
wayside in a monopolistic system. Local ISPs often work with nonprofits to
bring information to the public. These local noncommercial web sites might
offer, for free and without advertising, the same or better quality content offered
132
by the cable operator. These services will be downplayed and perhaps even
ignored by the cable ISP because the service provider will not benefit financially
if consumers use a noncommercial service” (Media Access Project et al, 1999).

In the same filing, ‘open access’ also had everything to do with preserving local
businesses who would not be able to afford a monopoly ISP’s national advertising rates. Most
revealingly, in the same breath, Schwartzman notes that

“Internet users are not only subscribers, but citizens, using the Internet to receive
information about political issues, government-distributed information, and local
matters. If cable operators are successful in stifling competition, the victim will
be the public that will lose choice and diversity.”

And

“Placement deals, content restriction, or filtering by an ISP on the basis of
technical, social, political, aesthetic and commercial factors would be
unobjectionable—were there a choice in ISPs for access via the cable
infrastructure. But under a closed model, such competition is not available.”

The argument made by Portland Commissioner Erik Sten later in the year takes this logic
another step further. Describing @Home’s practice of taking paid placement in its search engine
at the expense of local businesses and interests, he noted,

The local e-commerce impact is incredibly important, but so long as [a store such
as] Powell’s [Books] can go to other Internet service providers and make
agreements, it’s fine. It’d be nice if every search engine acted like the library and
gave you a straight answer, but that’s not the case because search engines are
advertising vehicles. However, the only way to keep the search engine system
“clean” is through competition, so people should be very alarmed about not
having choices about who their gatekeeper is ("Interview with Erik Sten," 1999).
133

Sten, remarkably, is providing the case for business to purchase prime placement on
various ISPs, something that would be anathema less than half a decade later. This is not seen as
objectionable, which is one of the deals that advocates at this stage made with the neoliberal
moment: it makes sense against the present backdrop that a diversity of ISPs solves this problem,
one purchasable by consumers: it is a particular form of market solution to the worst proclivities
of the neoliberal moment. In court documents later in 1999, advocates argued,

Vigorous competition among providers of broadband access to the Internet
benefits consumers in two ways. Truly competitive markets yield lower prices,
higher quality of service, and increased innovation. Competition also promotes
the First Amendment’s objective of a diverse flow of ideas and opinions. …
[T]he Portland ordinance promotes both the First Amendment and economic
interests of citizens and consumers. … Absent open access, AT&T would likely
be able to force consumers to accept its closed system (Citizens' Utility Board of
Oregon, et al., 1999, pp. 1-2).

“Openness” here is a defense of the free market itself. Access to the Internet is at once
both an opportunity for free speech, but by the same token, access to a genuinely free market.
None of this is particularly theorized. “Openness is a matter of design choice, not technological
imperative. The Internet’s signal characteristic has been open entry. That openness lowers entry
barriers and facilitates instant market access. Entrepreneurs with a computer and an idea can start
a business. Those seeking to disseminate messages can reach potential audiences far larger than
any other mass medium can deliver. This network of networks also creates communities of
common concern, locally and internationally” (Citizens' Utility Board of Oregon, et al., 1999, p.
3). While later in the debate Christian Sandvig would comment on the supposed irony that de
Sola Pool’s ‘policies of freedom’ were invoked only indirectly in the network neutrality debate,
his finding of irony is itself ironic, given consumer advocates saw fit to make the connection
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explicitly at this early stage of the debate: “There is simply no way to obtain the same level of
freedom of expression and the same speed and quality of service in the closed model. Whatever
the virtues of @Home’s admittedly sophisticated technology, it is not being deployed as a
‘technology of freedom.’ See de Sola Pool, Technologies of Freedom, (Harvard University Press
1984).” (Citizens' Utility Board of Oregon, et al., 1999, p. 5).
The manner by which open access is to be implemented is, likewise, through private
arrangement.
9
When Schwartzman, writing Los Angeles cable authorities, tackles the issue of
‘what open access was’ head-on, it is explicitly a business arrangement: not a set of principles.
Contrasting such an approach with direct content regulation to solve the problem of cable
operator control, such as requiring an ISP to offer ‘balanced coverage to controversial issues” or
“provid[ing] at least three sources for any consumer product that it includes,” he proposes
“adoption of content-neutral, structural, business-oriented safeguards to prevent providers from
attaining and abusing a monopoly gatekeeper position.” In more detail:

No single, common definition of open access has yet been formulated. A number
of regulatory models are available, ranging from traditional common carriage
regulation to a more flexible ‘nondiscriminatory access’ model. We believe that a
flexible policy of requiring nondiscriminatory access to all competitive service
providers, coupled with strict enforcement of those requirements, allows for the
best solution for competitive Internet service providers while imposing the least
burden on cable providers. ... More precise regulations would need to be
developed only if the cable industry is not responsive to a broader policy
mandate (Media Access Project et al, 1999).

In many ways, it is this gameness of these advocates to go along with the commercial
imperative unfolding that is these advocates’ continued ticket to policy-making settings in
Washington. Given the term’s flexibility, it is also what supplies continued entrée at local level to

9
This is not so different than a ‘Title II-lite’ approach. Nondiscriminatory interconnection amongst telephone providers
is not so different at base.
135
credibly present its necessity: if it is merely a business arrangement, localities with less expertise
than that of the likes of David Olson need not fear wading in and putting their foot down.
This said, the stance of these advocates is a complex beast: to borrow Ruggie’s (1982)
term, it contains a residual ‘embedded liberalism’ which calls for the competitive part of their
argument to be set within a broader social framework. In early 1999, Consumers Union and the
Consumer Federation of America published a report (M. Cooper & Kimmelman, 1999) in which
they delve into the business models of the incumbent providers. This report was discussed in the
previous chapter. In addition, however, this report took stock of the different levels of
communications-technology users by income. Their end recommendations were instructive, a
combination of competition-driven policy within a framework of equity, forcing markets to do
what they would resist. As inherently mistrustful of the desires of the owners of conduits they
were, however, they also recognized the side-benefits individual consumers had wrought from
broader liberalization projects in the telecommunications sphere, and sought to defend the
strongest of these. Monopoly pricing practices needed to be addressed; where competition did not
exist, continued price regulation should still be maintained; pricing protections for “low-volume,
long distance users” would need to be established to “ensure that this segment of the market is not
discriminated against with price increases that do not reflect real costs.” They would actively
bolster elements of the Telecommunications Act that enforced the opening of telephony markets
to competition, since in many markets, local networks were expected to remain a bottleneck.
Until competition developed “throughout the consumer market,” local phone monopolies “must
be required to allow potential competitors to connect to their networks at prices that facilitate
competition and reflect only efficient costs for telecommunications equipment and services”;
efforts to create loopholes in this regime “should be rebuffed” (M. Cooper & Kimmelman, 1999,
pp. viii-ix).
136
Such a vision is decidedly lacking from the Federal Communications Commission’s first
foray in assessing the ‘reasonableness’ and ‘timeliness’ of the deployment of advanced
communications services to ‘all Americans,’ a report required of them by the
Telecommunications Act. Reading this first Report today, their efforts appear incredibly
primitive: it was an agency clearly feeling its way in the dark. After a lengthy survey of trade
press and industry filings, and with a vague effort to compare broadband diffusion with other
technologies (television, the telephone)—complete with S-curve graphics—they looked at the
dollars being spent but not necessarily where said dollars were put to use, declaring only that “we
believe it is premature to conclude that there will not be competition in the consumer market for
broadband.” (In a footnote, however, they concede that “Incumbent LECs do, however, have
market power in the related market for narrowband residential telecommunications” (FCC, 1999c
¶48n102).) Intermodal competition—that is, cable competing against telecom competing against
broadband over powerline, etc.—was this Commission’s early hope for broadband reaching the
consumer; trade publications and corporate reports detailing investments in new technologies was
sufficient to provide the FCC their optimism that they need not intervene. Expand one’s scope
widely enough and market power disappears; lift one’s gaze to observe how many players were
operative at a national level and local concentration is carpeted over; this was precisely their tack
in a time of uncertainty and a seeming gold-rush in telecommunications facilities. They note with
interest one commenter’s response that “[a]ccess to capital is very plainly not an obstacle to the
effective provision of DSL services” (FCC, 1999c ¶44). Insufficient data about rollout to rural
areas or to “disadvantaged urban neighborhoods” is countered with anecdotes of some far-flung
locales experiencing rollout; a great faith is placed in local leaders providing an industry with
“demand pull” with their knowledge of the needs of their local communities and the power to
“coalesce enough demand to pull in profit-oriented suppliers” (FCC, 1999c ¶78).
137
Overall, this first FCC foray feels, for all its length and the challenge entailed in tackling
this issue for the first time and at this particular historical moment, flimsy. The FCC’s conclusions
are entirely undertheorized; their adjoining studies of technology diffusion are largely beside the
point. All the same, it is hardly surprising that the FCC saw fit as well to quote Friedrich Hayek
to defend the notion that hands-off is the right policy (“...what cannot be known, cannot be
planned”) since “the dimensions of broadband and the upper limits of market-based supply and
demand are unclear” (FCC, 1999c ¶74n178, quoting Comments of the Technology Entrepreneurs
Coalition). (Perhaps there is some theory after all in play.) One section weakly hints that there
was little to worry about because the United States was relatively well off: “Economic theory
teaches that, in countries that are rich in resources and in which products can continually improve
on quality, consumers benefit from relatively fast innovation. Innovations arrive sooner when
many, rather than few, firms enter...Our experience in communications markets teaches that entry
by many competitors is the best paradigm by which to bring broadband to all Americans” (FCC,
1999c ¶¶52-53). Thus based on their expansive (yet placeless) survey, having cast as wide a net
as possible to determine whether there is a competitive market developing for broadband—in
other words, having loaded the dice—answered yes. If consumer advocates were concerned about
competition being a means to an end, the FCC negated this argument: competition was the end,
period; that it existed was a matter to be taken as given from the dollars being spent; its
configuration was of little consequence. While it may be reasonable to note that one asks too
much of them at this stage, that it is difficult to tell whether there is adequate development for this
resource, they go much further, stating that “under most scenarios, competition among several
facilities-based providers of residential broadband will occur. ...We expect consumers to demand,
and the market to deliver, much more in coming years” (FCC, 1999c ¶¶94, 97). Based on the
strong conclusions they drew based on so halting an investigation, the FCC also determined that it
138
would not examine issues of Internet peering arrangements, leaving those bereft of any
investigation. They remain so. If Computer III and its continuations represented steps away from
common carrier models of communications, this first Report was a step even further in this
direction.
The analytical gulf between the consumer advocates and the FCC was not bridgeable. On
one level, it was a question of scalebuilding: until the FCC was willing to observe at a local level
the constrained options available to localities—that is, until it stopped viewing broadband
markets as national but instead as an issue at the point of sale—no common ground would be
found. Thus one fight would be jurisdictional: if localities ultimately carried the day in court, the
FCC may be forced to act in their interest. Streeter’s notion of ‘corporate liberalism’ (1996) by
which the FCC served to protect nascent industries (here, cable broadband) appears to hold, but
the logics espoused by Kennard reveal themselves in a whole different register, the product not
only of years of effort to instill a particular mode of thinking about regulation writ large, but
instilling a seeming willingness on the agency’s part to reinterpret its own role in the creation of
the Internet itself to the service of this mode of thinking itself. Already, consumer advocates
recognized that AT&T was playing a similar game of cat-and-mouse with its ubiquitous access to
virtually every level of government: to localities, it claimed that localities did not have the
statutory authority to issue such dicta as did Portland; to the FCC, they said that the
Communications Act did not give them authority to institute any open access requirement. Jeff
Chester of the Center for Media Education noted what was in plain view: “This regulatory shell
game, where the cable industry continuously moves the jurisdictional pea, substantially disserves
the public interest. Only by the FCC exerting clear jurisdiction over this matter can the cable
industry’s duplicity be stopped and the Internet protected.” (Jeffrey Chester, et al., 1999, p. 3).
139
In early 1999, the FCC approved the AT&T-TCI merger; its decision was informed by
this first Report. Responding to concerns of monopolization of high-speed broadband access by
cable interests, the FCC noted that while the combined AT&T-TCI might be at an advantage, the
FCC held that there were others planning to roll out cable Internet access, so competitive
concerns weren’t an issue yet. Even if they considered high-speed access a separate market from
narrowband,

AT&T is not a more likely entrant than AOL or other leading ISPs (including the
incumbent LECs, which have facilities of their own) that are currently providing
services using narrowband transmission. Accordingly, the merger does not
eliminate any scarce assets or capabilities; in fact, a partnership between AT&T
and TCI is precisely the kind of arrangement by which AT&T (and other ISPs)
could be expected to provide higher-speed Internet access services (FCC, 1999b
¶94).

For consumer advocates, an increasingly worrying development was the January
announcement by @Home regarding its purchase of online portal Excite in a $6.7 billion stock
swap. Its CEO commented, “We are merging with Excite not only for what they have achieved,
but what we become together—the new media network for the 21st century” (quoted in Malik,
2003, p. 151). The idea was quickly becoming to make deals with content providers, charging a
premium for access to such content. Despite indications as @Home’s own self-description as
“effectively one of the world’s largest intranets” in their business plans posted online (scrubbed
by the time they were quoted in Citizens' Utility Board of Oregon, et al., 1999, pp. 4-5), FCC
Chairman Kennard told reporters, “At this nascent stage in the development of the market, one
should not presume to have a regulatory cure for every anticipated marketplace ailment”
(McConville, 1999). Public interest advocates’ concerns about independent ISPs’ role in the
availability of noncommercial and other unprofitable content (and perhaps basic access)—not to
140
mention the MHCRC’s registered concerns—were only mentioned once in the Order permitting
the transaction.
10
(Incidentally, the word “democracy” doesn’t appear at all in the order.)
Mystified by the varying manners by which commenters had suggested employing open access
(regional Bells pushing for full unbundling; MHCRC and consumers and ISPs pushing their
lesser solution; a company called Internet Ventures, Inc. pushing to be allowed to purchase
carriage via leased access provisions of channel bandwidth) the FCC threw up its hands and
declared it unnecessary.
The FCC concluded that in their view the merger itself would not deny customers “the
ability to access the Internet content or portal of his or her choice,” noting further that given this,
“open access issues would remain equally meritorious (or non-meritorious) if the merger were not
to occur. Moreover…multiple methods of providing high-speed Internet access appear to be
emerging, and the Commission will monitor broadband deployment closely” (FCC, 1999b ¶96).
The primary concern of the one dissent, from Commissioner Gloria Tristani, had nothing to do
with a favoritism of content or the role that ISPs advocates suggested they portrayed online;
rather, she was dissatisfied at the level of monitoring of AT&T’s promises to actually upgrade
TCI’s facilities in a universal manner (Tristani, 1999).
11

10
Note that should some form of “open access” condition—still vague in the FCC Order—be placed upon cable
providers, this would have given ISPs better access over high-speed lines at this time than they were able to receive
over DSL. Until late in 1999, recall that in order for a competitor ISP to provide service over an ILEC’s local loop, it
needed to be either a lessor of that entire loop or have an arrangement with a CLEC that was. It could not deal directly
with the ILEC to use only the high-frequency portion of the loop.
11
In an interesting sidenote, Commissioner Furchtgott-Roth thought that the FCC did not even have jurisdiction over
this transaction overall; he held that the Communications Act “charges the Commission with a much narrower task:
review of the proposed transfer of radio station licenses from TCI to AT&T, and consideration of the extension of
common carrier lines by the merged entity. Nothing in either of these provisions speaks of jurisdiction to approve or
disapprove the merger that has occasioned TCI’s desire to transfer licenses and international resale authorizations. We
are required to determine whether the transfer of station licenses serves the public interest, convenience and necessity
and whether the transfer of authorizations for international resale serves the public interest, convenience and necessity”
(Furchtgott-Roth, 1999, p. 1). He continues his logic later as he notes, “Beyond the threshold question of statutory
authority to regulate mergers, I have concerns about the process employed in FCC merger reviews. The vast majority of
license transfers…even those that involve merging entities [] are not subject to the stringent review today imposed
upon AT&T and TCI. For example, as I have observed, mergers of companies like Mobil and Exxon involve the
transfer of a substantial number of radio licenses, many of the same kind of licenses as those at issue here, and yet we
take no Commission level action on those transfer applications” (Furchtgott-Roth, 1999, p. 3).
141
Expanding their purview

In June 1999, the district court in Oregon found in the City of Portland and Multnomah
County’s favor against AT&T’s lawsuit. It wasn’t just a slight win: this was a decision in which
District Judge Owen Panner was described by Communications Daily as “dismantling” AT&T’s
arguments in their entirety ("AT&T Corp. v. City of Portland," 1999; "Court says ", 1999).
AT&T claimed the locality had overreached their authority; the court disagreed, noting Congress
desired cable regulation to be at the local level. The Court held that the locality could require
open access since cable operated an “essential facility,” something quite aside from regulating
cable as a common carrier. To AT&T’s complaint of a perceived mandate that it would have to
install new equipment at its headends, the court responded there was no such directive—it was up
to them to decide how to do this. To AT&T’s complaint of its now being forced to carry certain
speech, Panner responded this was not a speech regulation but an economic one. Supporters were
ecstatic. On June 13, in an audacious move, the Center for Media Education, the Media Access
Project, Computer Professionals for Social Responsibility and the Oregon Consumers League
placed an ad in the Oregonian celebrating Portland and Multnomah County’s victory over AT&T
in District Court, hoping to call increased attention to the issue and to urge residents to contact
Congress to make such access policies a national prerogative.
12
City Commissioner Erik Sten
noted the spread of the idea to other locales, whose officials “stat[ed] that if any other city was
victorious in applying open access, then those cities would revisit [the] issue.” An “MFN” or
“Most Favored Nation” provision was increasingly becoming the placeholder of choice for other
locales while AT&T appealed the Portland District Court’s decision to the Ninth Circuit. In a
curious appropriation from international “free trade” discourse (itself at this time increasingly a

12
The ad can be found at
http://web.archive.org/web/20000816033956/http://www.nogatekeepers.org/archive/06131999.oregonian.ad.pdf.
142
hot subject of debate), this meant that whatever elements of the condition survived in the courts
would be what was required of a cable franchise under contention. Sten continued, “It’s safe to
say most of the city commissioners and mayors I’ve spoken with felt [open access] was the right
requirement” ("Court says ", 1999).
There were few promising signals sent from the national level. It took two weeks for the
Federal Communications Commission to respond to the District Court decision; when it did, its
reception was entirely negative. A Television Digest article described Kennard at the 1999
National Cable and Telecommunications Association conference as fearing the “chaos” of
individual franchise authorities each setting technical standards. “We have to have a national
standard in this area,” he warned, and to applause of the cable executives present, “the market
would be rocked with uncertainty [and] investment would be stymied” without such a national
standard ("Kennard hits," 1999). In a speech entitled “The Road Not Taken: Building a
Broadband Future for America,” Kennard laid out his national broadband policy, a plan via no-
plan:

Here is my vision for broadband in America. Multiple broadband pipes serving
America’s homes. At least four or five facilities-based competitors. Digital
Subscriber Line (DSL), cable modem, terrestrial wireless, and satellite. That’s
my vision for our broadband future. Because that is the best way to serve
America’s consumers. Multiple facilities-based carriers, competing robustly to
bring all sorts of wonderful content to America’s homes….But how do we do it?
We let the marketplace do it (quoted in Breckheimer & Taglang, 1999).

Kennard compared the power assumed by franchise authorities “with [a] highway system
‘where every town could set parameters for the size of cars and the size of lanes. …We wouldn’t
be able to drive to the store, much less to another state.’” “Sometimes,” he continued, “people
talk about broadband as though it is a mature industry….But the fact is that we don’t have a
143
duopoly in broadband. We don’t have a monopoly in broadband. We have a no-opoly. ..The
broadband market is fertile, but still undeveloped.” Kennard noted that the “best decision
government ever made with respect to the Internet was the decision the FCC made years ago not
to impose regulation on it. It wasn’t ducking the issue, it wasn’t a dodge. It was a decision to
act…born of humility that we can’t predict where the market is going” ("Kennard hits," 1999).
The seemingly willful confusing of the enhanced service for the conduit itself in the present
instance went without comment. Commissioner Michael Powell similarly chimed in, stating that
there should be a “‘high burden of proof’ on advocates of equal access to cable systems, warning
that government doesn’t know enough about Internet technology to regulate” ("Kennard hits,"
1999). He concluded that the court decision was “crazy.”
At the same gathering, FCC General Counsel Christopher Wright seemingly begged the
cable industry to give the FCC an excuse to jump to their defense. “[W]e can’t preempt [the
decision] unless we have the authority, and you have to tell us we have the authority” via filings
at the Commission. “I’m sure there are plenty of provisions in Title VI [of the Communications
Act]. I don’t know if Section 706 [of the Telecommunications Act] works as well, but don’t
throw it out…The good news is that we [FCC] are in agreement with the gist of the arguments
that AT&T presented in the Portland case” ("Kennard hits," 1999). Staffs of all five
commissioners shared these views. Commissioner Gloria Tristani—recalled in future years as one
of the more stalwart defenders of the public interest at the Commission—was, according to her
aide Rick Chessen, an “early and strong advocate of the hands-off approach. She feels cable is the
leading provider of advanced services, especially to rural areas, and she doesn’t want to do
anything to jeopardize that.” Television Digest noted that the “[o]nly hint of support for Portland
came from Comr. Ness’s [staffer] Kim Matthews, who said her boss agreed [with the chairman
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and other commissioners], but ‘she is concerned about bottlenecks’ to Internet access” ("Kennard
hits," 1999).
Cable officials, understandably, were buoyed by the comments. Comcast’s Brian Roberts
downplayed the significance of the result of the initial court battle, noting prematurely that it
would not encourage other locales to require open access provisions, confident that “most cities
[were] thrilled” just to get cable modem service along with the adjoining franchise fees and
school and library hookups. Already erasing advocates from the picture, he followed up with an
argument that would figure strongly in public debate to mute free expression concerns over this
new medium: Roberts insisted that the open access debate was a “fight pure and simple about
money...[and it’s] not the business of government to pick winners and losers” ("Kennard, Powell
stake," 1999)
Working alongside the OpenNet Coalition, consumer advocates who had long found no
support from the FCC turned to Congress to put pressure on the agency. They certainly weren’t
alone. Shortly before the district court ruled, the national legislature was beginning to take notice:
bills were introduced seeking to address the issue by bipartisan clusters of legislators. Numerous
of these bills were obvious efforts, egged on by the powerful regional Bell monopolies, to rein in
the efforts of an FCC that had interpreted the 1996 Act broadly, allowing ‘too generous’ access to
competitors aboard local lines. Yet consumer advocates found a degree of success, with bills
friendlier to their and ISP interests filed by Rep. Rick Boucher (D-VA) and Rep. Bob Goodlatte
(R-VA) who introduced two—the Internet Growth and Development Act (H.R. 1685) and the
Internet Freedom Act (H.R. 1686). These covered a great deal of ground but included provisions
that would push cable companies to open lines to competitors; AT&T pushed back against both
(Breckheimer & Taglang, 1999). HR 1685 would have required telephone-company operated
DSL-capable loops and cable companies alike to unbundle transport and Internet access; further,
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companies that failed to do so would be considered to be violating the Sherman Act (Breckheimer
& Taglang, 1999). In July, 1999, Representative Ed Markey (D-MA) circulated a draft
resolution—not binding law—that would have the FCC hold cable companies to the same “open
access” conditions to which telecommunications companies were held (Center for Media
Education, 1999, p. 5). Representative Blumenauer (D-OR), who represented the Portland area,
introduced a sweeping bill: it reinforced the ability of cities to impose open access requirements
on cable franchises; it required the FCC to open cable lines to unaffiliated ISPs on fair and
nondiscriminatory terms; and it would allow competitors to obtain access via the “leased access”
route that Internet Ventures proposed. The FCC would be given the authority to enforce these
provisions. Any telecommunications service offered by the cable system would also be seen as
providing a common carriage service as well ("San Francisco delays," 1999). These bills,
however, went nowhere: as Consumer Federation of America and @ction Network would later
note in their strategy document, the corporate politics were seemingly cancelling each other out.

AT&T sets its sights on MediaOne

As the Congress remained largely in stasis, in mid-summer AT&T filed its intent at the
FCC to continue acquiring cable companies, this time setting its sights on MediaOne. As a result,
a new wave of local action was set to commence as the giant would need to seek the permission
of all of MediaOne’s local franchise authorities to seal the deal. Advocates were determined to
capitalize on this opportunity. At the same time, Excite@Home was diving more deeply into a
premium-content model. By the time the MediaOne acquisition was announced, AT&T’s single
affiliated ISP had invested nearly $60 million in content startups, even as the company was
strapped for cash (Malik, 2003, p. 154). The CEO blamed the cable conduits: “We are definitely
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supply-constrained right now. We know the demand is out there. The problem is the installers—
there are only so many backhoes digging up the streets” (quoted in Malik, 2003, p. 154). Their
foreseen business model, however, was clear. The company’s president said outright that “The
power has to be proprietary content…People don’t watch distribution” (quoted in M. Cooper,
2000a, p. 1043n1083). This strategy was reinforced later in the year as Excite@Home bought
online greeting-card upstart BlueMountain.com for $780 million, “reasoning that Blue Mountain
Arts’ traffic would add more oomph to Excite, which was falling behind Yahoo! by the month”
(Malik, 2003). When the New York Times gave public airing of the insider disagreements between
Excite@Home and its conduit partners, it quoted Excite@Home’s CEO: “We think that over
time, the revenue from transporting data will continue to fall. That’s why in our long-term
business model, half our revenue comes from the media side,” a comment that “pissed off”
executives at Cox, Comcast and AT&T (Malik, 2003, p. 152). While Malik attributes the lack of
enthusiasm for the public sentiment to bad internal relations, he neglects to consider that the
intense simmer of the ISP-access fight may have had just as much, if not more, to do with it.
When Erik Sten, in Portland, gave a Washington Post writer a tour of the city, the
concerns became quite concrete. In an interview later in the year, he said,

On the broader question of what happens if you don’t have choice, I think it’s
chilling and obvious. We had a Washington Post reporter in town for the Court
hearing a few weeks ago, and he just walked into Powell’s Books, the largest
independent bookstore in the country. He walks in and asks if they have an
Internet department, since he wants to include this in his story. He went into their
Internet department and asks the guy in the Internet department whether he
supports Portland’s decision on open access. And this guy says ‘yeah, and I’ll
show you why,’ and they call up the @Home Internet home page and he searches
for books three different ways, and it all comes back Amazon.com - because
Amazon bought that placement on the @Home service. So if you’re searching for
a book in Portland, Powell’s, our number one tourist destination in the city and
our biggest bookstore, a cultural icon that’s incredibly important both socially
and financially to the city of Portland, you can’t even find Powell’s through the
@Home search engine ("Interview with Erik Sten," 1999).
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Concurrently, consumer advocates were growing in awareness of a potentially disturbing
new market developing. As Excite@Home was increasingly becoming not just a platform but
recrafting itself as a content provider, in late July, the Consumer Federation of America,
Consumers Union, Media Access Project, and the Center for Media Education would note in a
letter to FCC Chairman Kennard that a cottage industry responding to cable’s increasing demand
for filtering technology was maturing. Large developers of routers, such as Cisco, were hardly
being secretive in outlining the ways they could serve the interests of new broadband networks; it
simply wasn’t being reported in major press outlets. Advocates seized on these companies’
marketing materials to drive their concerns home.

Cisco Systems, for example, one of the leaders in providing sophisticated
networking hardware and software to cable ISPs, is not reluctant to discuss the
power of the new digital architecture, a power that translates directly into
increased ISP profits and control. The new networking technology, Cisco
promises the cable industry, gives “…you the information you need to offer
advanced differentiated services at a profit…. [Y]ou can optimize service profits
by marketing ‘express’ services to premium customers ready to pay for superior
network performance” (discussed in Center for Media Education, 1999, p. 7).

The openness with which such initiatives were (and would continue to be) discussed by
router manufacturers was indicative of the known demand nascent broadband providers would
provide for these tools. Met with FCC silence, action became increasingly intense outside the
beltway. In addition to those who had commenced taking action immediately after Portland and
Multnomah County made its own decision, others acting on their knowledge of the district court’s
decimation of AT&T’s case advanced open access conditions on their own franchise transfers.
Many would announce their intent to make final decisions later in the year as AT&T appealed the
district court decision to the Ninth Circuit. San Francisco was one such locale, postponing a vote
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until December, but the Board of Supervisors made sure to point out that they “back[ed] Portland
in its court battle with AT&T and declare San Francisco’s general policy to be supportive of open
access” ("Access fight," 1999). Miami-Dade County set a hearing of October 19 on open access,
even holding a late September workshop on the debate; at this point “[s]taffer for Commissioner
Bruno Barreiro, [the] strongest open access advocate, said he saw ‘very good likelihood’ that
[the] policy would pass.” Los Angeles similarly scheduled a decision for the fall ("Access fight,"
1999).
Others chose to take action directly. Fairfax, Virginia initially delayed a decision as to
whether to mandate open access as Cox Communications took over their franchise from Media
General—which, reflecting the exuberance only a bubble can provide, it was doing for the
princely sum of $1.4 billion for a system of 260,000 subscribers, or $5385 per subscriber. It was
also inheriting “local frustration at Media General’s previous rate hikes and ‘antiquated’ system;”
Media General had been promising upgrades but had allowed their systems to fester nonetheless
("Fairfax County seeking," 1999). No matter: with the District Court decision providing wind at
their backs, Fairfax County instituted an open access condition on Cox. The trade rag Warren
Cable Regulation Monitor, catering to its core audience, could barely restrain hyperbole. “Behind
closed doors in the dead of night and with no opportunity for public comment the City of Fairfax,
VA, voted 4-2 to apply common carrier regulations to Cox and require it to unbundle its
highspeed modem service in exchange for approving a franchise transfer from Media Gen’l” ("In
the states," 1999b). “Behind closed doors” affairs are, of course, always reserved for
compromises favorable to the incumbent, as nearly transpired in Portland. The Monitor
continued:

[The] vote underscores why 30K local franchising authorities across the US
should not be making scatter-shot decisions about nat’l telecommunications
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policy,’ NCTA [the National Cable and Telecommunications Association] added.
(Nice to see the NCTA getting a bit fired up, eh?). It appears not to be a
coincidence that Fairfax Cty is home to many high-level AOL [AOL] execs who
certainly run into city councilors at the county’s many golf courses, social events,
and political fundraisers. Even a bunch of devo-land suburbanites, with more
lawyers than raccoons, has to realize that this decision gets made by the Portland
case. Why else wouldn’t they insert a MFN [most favored nation] clause, much
like in San Fran, that reserves the right to revisit the issue once it is resolved by
Congress, or more likely the 9th Circuit?

In July of 1999, the Broward, Florida Board of City Commissioners mandated that in
transferring its franchise, it—and any other cable operator—would need to provide a similar
standard of open access to competing ISPs ("In the states," 1999a). In response to Broward
County’s open access initiative, Comcast and Advanced Cable Systems sued in U.S. District
Court, Southern Florida, repeating most of AT&T’s old points in Portland. The lawsuit was
eventually thrown out due to the fact they were not even supplying cable modem service yet, but
were told that once they upgraded their systems, they could try again ("AT&T threatens," 1999).
In early August AT&T filed a separate, second lawsuit in Broward County which stuck ("San
Francisco delays," 1999). Kennard and the FCC continued to press their case in the wake of
Broward County’s decision, arguing for “an intentional restraint born of humility” because “we
can’t predict where the market is going” ("Broadband access stays," 1999).
Municipal organizations took action as well. At their annual convention in St. Louis, the
National Association of Counties (NAC) adopted a resolution that asserted local franchise
authorities did have jurisdiction “to require MSOs to open their networks to all ISPs. [The
r]esolution said that if Congress or FCC makes policy in that area, it should mandate open access
to encourage competition among ISPs” ("Broadband access stays," 1999). They were largely
alone in directly endorsing the policy amongst municipal groups, aside from the National League
of Cities the previous year. The National Association of Telecommunications Officers and
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Advisors (NATOA) were mistrustful of the FCC’s actions, but not for the same reasons as the
core advocates which operated NoGatekeepers.com; they were much more concerned about
preemption of their authority. At a Strategic Research Institute conference in Washington, D.C. in
late summer 1999, Jane Lawton, then-president of the organization, declared that it was “hard to
trust a ‘hands-off’ policy.” She noted the contradiction between what had been understood as
“deregulatory” via the Telecommunications Act and what was emerging in FCC policy, as it was
“‘disingenuous of the FCC’ to paint its own position as procompetitive and that of Portland and
Broward County as ‘regulatory’” ("San Francisco delays," 1999). She said what was obvious to
localities: that the differences in approach more accurately constituted “a couple competitive
models,” and that while at this time NATOA’s position stood to protect localities’ ability to
demand open access provision but not to favor the policy itself per se, she believed that such a
policy was “inevitable…that open access will become policy” due to its increasing popularity and
the likely need for legislative response of the ilk already brewing ("San Francisco delays," 1999).
AT&T and MediaOne, in addition to dispatching a legion of lawyers and lobbyists,
launched a campaign that included “withholding investment in facilities, threats to drag localities
into complex regulatory proceedings, and expensive TV advertising, not to mention heavy-
handed threats to drag localities into costly law suits [sic]” (M. N. Cooper, 1999, p. 3). While
cities were being given varying advice as to whether to pursue open access conditions with
considerations colored by caution and the likely lawsuit, few were now uninterested. The
OpenNet Coalition promised to be a powerful presence in any city negotiating its transfer of a
MediaOne franchise to AT&T ("Cities wary," 1999). In response, in an effort to clear FCC rules
limiting ownership of cable systems, AT&T was busy rearranging its own house so as to appear
less powerful than it was, taking two tacks. One involved approaching the FCC to alter media
ownership rules in their favor, engaging in an “intense lobbying campaign” that ultimately
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rendered only minor changes in their favor. A bigger victory for AT&T was simply delaying FCC
decisions on horizontal cable ownership rules, providing time to institute their second. The
company bought time to “shift[] investments and consolidat[e] holdings in order to decrease their
total ownership under the FCC’s rules” ("AT&T/MediaOne merger," 1999). The company
created numerous ‘tracking stocks’ to separate out amalgamated businesses under its purview
while still retaining control of them. The net result was a tangled web of accounting
prestidigitation that would make AT&T look less the behemoth it was and thus more palatable for
anxious regulators to let be. “The new AT&T,” a Consumer Federation of America report
declared, “is now a jumble of management gimmicks intended to convince regulators that AT&T
is not in charge—tracking stock for cable programming, tracking stock for wireless, tracking
stock for Internet programming, a management committee for Time Warner Entertainment, and
an independent operating agreement for Cablevision” (1999b, p. 3).

Consumer advocates on the move

In the face of such efforts, it is surprising how bold localities were. By the end of the
year, Cambridge, Massachusetts would require nondiscriminatory access, as did the
Massachusetts towns of Somerville and Quincy of MediaOne ("News," 1999). They did this after
requesting clarification from the FCC as to whether they had the right to do so; “[t]he FCC never
responded” ("Additional open access," 1999). In Pittsburgh, ISPs lobbied the Pittsburgh City
Council to require open access over cable plant during the city’s franchise renegotiations.
Pittsburgh, PA had considered the open access quandary in its own negotiations regarding AT&T
and TCI earlier in the year, but dropped the issue in the face of a potential lawsuit by AT&T
("News," 1999). However, the process was renewed in the context of Portland’s victory later in
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the year, and in late 1999 Pittsburgh, PA regulators forced AT&T to provide open access should
Portland prevail over AT&T in the Ninth Circuit. ISPs were ferocious in lobbying for their
interests there in the months leading to this decision ("News," 2000).
Consumer advocates, in conjunction with local affiliates, were actively pushing these
debates along. In October, the Virginia Citizens Consumer Council teamed up with Consumer
Federation of America to urge the Virginia State Corporation Commission to make open access a
condition of the AT&T-MediaOne merger, as had been done elsewhere in the state; they followed
up with a letter to the Richmond city council the following day, submitting for the record the
Consumer Federation of America’s and Consumer @ction’s report, “Transforming the
Information Highway Into a Private Toll Road,” which summarized in detail the means by which
the emergent cable giants sought to prioritize profitable content surreptitiously (Consumer
Federation of America & Virginia Citizens Consumer Council, 1999a, 1999b; the report is
Consumer Federation of America and Consumer @ction, 1999). Advocates here turned the tables
on the planned prioritization schemes made available by new routing capabilities: if these routers
were good enough to weed out traffic, surely they could be useful to direct flows of traffic as
well? “Alternatives for ensuring nondiscriminatory conditions of access have been identified in
the months since Portland first ordered non-discriminatory access,” they wrote. “Such alternatives
include local peering, policy-based routing, and access to [the] cable modem transfer
system”(Consumer Federation of America & Virginia Citizens Consumer Council, 1999d, p. 2).
Drawing out a distinction between ‘private’ regulation versus ‘public’ to further turn the tables on
the huge parties involved, they noted,

AT&T threatens that if it is forced to provide non-discriminatory access a heavy
burden will be imposed on local communities. …[C]onsumer groups are
concerned instead that if AT&T’s private regulation of the broadband Internet is
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allowed to flourish, the heavy burden will fall on consumers” (Consumer
Federation of America & Virginia Citizens Consumer Council, 1999d, pp. 2-3).

When AT&T/MediaOne responded that such conditions were equivalent to local
“regulation of the Internet” outside of its authority and that AT&T would ensure public access on
its own recognizance, the CFA and VCCC responded:

Requiring open access over the cable network does not get localities into the
business of regulating the Internet. Instead, it requires that ISPs and the holder of
the cable network franchise negotiate an arms-length arrangement that provides
the ISP with non-discriminatory access and terms in exchange for a fair price
paid to the cable franchisee. ISPs, should they believe that the conditions are
discriminatory, bear the burden to prove so in a private legal action. In other
words, by establishing a requirement for non-discriminatory access, the cable
authority merely forces the cable company to negotiate access based upon free
market principles (Consumer Federation of America & Virginia Citizens
Consumer Council, 1999d, p. 1).

MediaOne’s representative at the meeting attempted to cast a requirement of open access
as a commitment on Andover’s part to get steeped in the details of price regulation. The artful
dodge utilized here by consumer advocates which emphasized that an open access condition
would be a business agreement and not a local, to-be-determined regulatory regime (a stance that
was entirely consistent with consumer advocate stances throughout the year) would prove a
necessary feature in debates elsewhere. Shortly before Cambridge, MA instituted a requirement
of open access on its own systems, Mark Cooper himself traveled to Andover, MA as they
deliberated the same, but was not permitted to speak. MediaOne attempted to similarly muddy the
waters there; the Massachusetts Consumers’ Coalition, whose statement CFA helped to prepare,
utilized the dodge once again: a requirement for nondiscriminatory access “merely forces the
cable company to negotiate access. If the ISP thinks the terms being offered are discriminatory, it
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bears the burden of proving in a private action that it is being discriminated against. Adopting the
non-discriminatory access condition only forces the cable company to negotiate. The cable
companies have made it clear that they will not offer non-discriminatory access to the customer
under their current exclusive arrangements” (Massachusetts Consumers' Coalition, 1999, p. 2).
In November, 1999, Democratic Representative Ed Markey of Massachusetts backed the
right of municipalities to mandate open access, penning a letter to the Boston Globe “citing open
access advocates in his state…and outlining his fight for open access in Washington;” he
trumpeted the argument of the core NoGatekeepers organizations that if the federal government
did not act, municipalities should. “If the FCC continues to oppose open access as a national
policy, then local authorities should take whatever action they can to protect consumer choice and
the competition that promises so much for the economy” ("Open access suit," 1999).
Massachusetts was a hotbed of activity: in September, Paul Schlaver of the Massachusetts
Consumers’ Coalition and Mark Cooper of CFA testified before Massachusetts Department of
Telecommunciations and Energy in an open meeting on the matter (Massachusetts Consumers'
Coalition & Consumer Federation of America, 1999). Christopher Grace, Chairman of Grace
Venture Capital, was also spearheading a statewide initiative petition on open access for the
November ballot. In an interview, he noted that while this fight may look to casual observers like
just a ‘turf fight between industry giants,’

“This is first and foremost a consumer issue. ...What is emerging from the cable
industry is one set of arguments for Wall Street, one set of arguments for public
consumption, and one set of arguments for regulators, and these arguments are
not always consistent. In Canada, AT&T is on record in favor of enhanced
competition and Open Access, and apparently, AT&T is whispering in the FCC’s
ear that it is pro-competition and will eventually open up the cable system.
Meanwhile, AT&T is telling the public that Open Access will bring the sky
down. Yet on Wall Street, AT&T is saying that it is committed to going forward
with infrastructure investments regardless of what happens, and a lot of analysts
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on Wall Street, ironically, see Open Access as being in AT&T’s best interests.”
("Special feature," 1999).

Further, the petition drive was on-track to succeed, meetings with local politicians and
Congressional delegations had commenced, and a web site was being established under the aegis
of “Massachusetts Coalition for Consumer Choice and Competition on the Internet” ("Special
feature," 1999). In response to the petition, AT&T and MediaOne bombarded the state with ads
which, Grace noted, “they are providing to themselves free of charge, urging consumers not to
support the open access petition, having a soccer mom claim that proponents of open access are
opposed to the free market and competition. They fail to mention that AT&T and MediaOne are
essentially closing out any competition on the cable system” ("MediaOne ads," 1999). As the new
year turned, lobbying was intense at the statehouse by both sides, yet no bills were even on offer
at that point. An intense amount of money was being spent in the referendum struggle: advocates
noted that cable interests had by that point spent more than $1.1 million trying to kill the
referendum; Chris Grace, in contrast, had spent $600k in support ("News," 2000).
CFA and its affiliate organizations were active on multiple other fronts. The Vermont
Public Interest Research Group and CFA wrote to the Vermont Public Interest Board on the issue
as it considered its own upcoming cable franchise renewals (Consumer Federation of America &
Vermont Public Interest Group, 1999). In Miami-Dade, Florida, CFA and Florida Consumer
Action urged the Board of County Commissioners to impose its own open access requirement on
its transfer of its MediaOne franchise to AT&T (Consumer Federation of America & Florida
Consumer Action Network, 1999). Miami decided against requiring open access in the end,
arguing that they believed it should be decided on a national level, “a belief that was no doubt
helped by a visit from FCC Chairman Bill Kennard, who reportedly advised local officials not to
support Open Access” ("News," 1999). Working with Missouri Citizen Action, a similar request
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went to the St. Louis Board of Aldermen (Consumer Federation of America & Missouri Citizen
Action, 1999). While earlier in February the King County, WA Council adopted a policy of
nondiscriminatory access as part of its franchise renewal, it appointed an Expert Review Panel to
evaluate issues associated with implementing the policy. This panel would eventually split 4-4,
producing no clear recommendation, and the Consumer Federation of America urged King
County to proceed with its early recommendation of open access (Consumer Federation of
America, 1999a). Addressing poor customer service, Fremont, CA took the step of requiring
service standards over high-speed broadband provided by cable, demanding issues be handled “in
a more prompt, efficient manner than had previously been the case” ("News," 1999).

The FCC attempts to thwart local efforts and consumer arguments

At all turns the FCC cast off indirect signals to stymie these efforts. A white paper by a
staff economist entitled “The FCC and the unregulation of the Internet” (Oxman, 1999) recalled
many of the successes in actions preventing bottleneck controllers from controlling access to
facilities, but took away the opposite conclusions consumer advocates did. Oxman concluded that
in “plotting a deregulatory course for the future,” the lessons to take away would include not
“automatically imposing legacy regulations on new technologies.” Further, “When Internet-based
services replace traditional legacy services, begin to deregulate the old instead of regulate the
new;” the FCC should “[m]aintain a watchful eye to ensure that anticompetitive behavior does
not develop, [but] do not regulate based on the perception of potential future bottlenecks, and be
careful that any regulatory responses are the minimum necessary and outweigh the costs of
regulation” (Oxman, 1999, p. 3). In particular regarding the last point, the author states,

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As the steward of the communications public interest, the Commission must
ensure that all players in the communications marketplace, including owners and
users of telephone networks and cable systems, have a fair opportunity to
compete. That goal should, and very often can, be accomplished without
governmental regulation, by permitting market forces to work and shape the
competitive landscape. The Commission should, of course, avoid regulation
based solely on speculation of a potential future problem (Oxman, 1999, p. 25).

However, the FCC decided to intervene more boldly in local affairs later in October,
publishing a staff report prepared by the Cable Services Bureau (and credited to its Chief,
Deborah Lathen) which sought to provide “guidance” to localities considering the question while
defending a continued “watchful waiting” stance. The report was quietly authored based on
closed-door meetings with various players in the broadband industry. Commencing cheekily with
a rendition of the parable “Blind Men and the Elephant,” it was seemingly blindly optimistic in its
assessments of competition in the face of continued withering consumer critique:

Far from finding harm, the Bureau’s monitoring efforts have revealed a nascent
residential broadband market containing a number of existing and potential
competitors. Cable, telephone, wireless, and satellite companies are rushing to
provide broadband services to the home. ...Perhaps most importantly,
government has provided the numerous incentives to broadband companies to
invest in and deploy their technologies. By forbearing from imposing ‘open
access’ regulations on cable operators, the Commission has fostered an
environment that encourages investment not only in cable, but also in the
alternative broadband technologies, such as wireless, satellite, and DSL (Lathen,
1999, p. 47).

As the Commission’s mandate was to “allow market forces to flourish” only intervening
“in the event of market failure,” the Cable Services Bureau recommended that “the appropriate
balance can be struck by monitoring the market and resisting the urge to fix a system that does
not appear to be broken and shows early signs of healthy growth and competition” (Lathen, 1999,
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p. 41). Directly contradicting advocates’ claims, and sending a direct (and intentional) signal to
local authorities, it concludes that

customer demand for choice ultimately will compel cable operators to open their
systems to unaffiliated ISPs. If a cable operator opts for a closed, proprietary
system in which consumers have no choice of ISPs or have to purchase unwanted
services as a condition of subscribership, these companies will risk losing
subscribers in favor of more open systems. These operators also would be
susceptible to regulation intended to eliminate monopolistic and anticompetitive
practices. We believe that market forces and our ongoing monitoring efforts will
persuade cable companies to keep their networks open, even in the absence of
regulation (Lathen, 1999, p. 42).

The report hems and haws over what “open access” was, listing the varying ways players
in the debate ‘defined’ the term and finishes by throwing its hands up. “[D]espite a flurry of
national and grassroots activity concerning ‘open access,’ our panelists -- a collection of some of
the nation’s leading business, government, and public interest advocates on this issue -- were not
able to agree upon a single workable definition of the term, much less recommend an appropriate
regulatory classification and enforcement mechanism” (Lathen, 1999, p. 38).
The core D.C. advocacy groups behind NoGatekeepers, on the eve of this report’s
release, responded with alarm. “We are distressed to hear that the Commission intends to release
a staff report evidently intended to dissuade local franchising authorities from insisting that cable
TV franchisees offer consumers the opportunity to choose among competing Internet service
providers, and to grant citizens the right to transmit and receive Internet content without
economic or content-based restraints,” they wrote (Center for Media Education, et al., 1999).
Understanding full well the force such a report, even if non-binding, would have in regulatory
discourse across the country—particularly in the manner it would be mobilized by AT&T,
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MediaOne, and other cable companies with a vested interest in defending their nascent business
models—they bemoaned:

We believe that issuing of “guidance” or other recommendations, even
camouflaged as policy analysis, would be incompatible with your expressed
policy of ‘watchful waiting’ on the open access issue. Most important, a ‘staff
report’ is susceptible to mischaracterization as an official policy statement. Even
though publications issued without a vote of the FCC’s members have no legal or
precedential significance, cable industry lobbyists can misuse such documents in
municipal and state legislative battles. The foundation of our democratic form of
governance is open decision making…Secrecy, on the other hand, engenders
only suspicion and doubt. Secrecy also generates bad policy. ...It is sadly ironic
that the Commission should proceed in secret to prepare a document purporting
to provide guidance on an issue of such national importance. As far as we are
aware, public input on this report came from three invitation-only meetings with
staff (Center for Media Education, et al., 1999)

Advocates pushed for what seemed common-sense proposals at this stage of the debate.
Even if the FCC thought that it should not intervene in the opening of these networks at this time,
they proposed that the FCC could “at least mandate that cable modems and cable modem
termination systems have the capacity to provide multiple ISPs with non-discriminatory access”
so as to prevent monopolistic lock-in of closed systems (Center for Media Education, et al.,
1999). No response was forthcoming.
Perhaps one of the more significant developments at this point was the Broadband in the
Public Interest e-newsletter launched by NoGatekeepers in early October 1999. The significance
of its brief run—released generally bi-weekly, its last update on behalf of the core groups
speaking in a unified voice would be early February 2000—was collation of all of these
significant happenings at the local, state, and national levels in Congress as well as at the FCC. It
would touch on international affairs as well, given the United States appeared to be moving in the
opposite direction as other nations when it came to broadband policy. Broadband in the Public
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Interest would outline the victories and contradictions in official statements. They tracked
developments and the intense lobbying which accompanied the AT&T-MediaOne transfer,
collecting local reports and putting them in perspective. When it was discovered that the merger
would violate ownership limits on cable, BPI broadcast the machinations inside the FCC to make
this defensible ("AT&T/MediaOne merger," 1999). The email-blast was early to remind its
readers that in Canada, open access was the law of the land, with “cable companies and
ISPs…both working to implement Open Access. In fact, some cable companies in Canada have
already implemented Open Access, such as Regional in Timmins, ONT” (Rogoway, 1999).
Looking to Australia, they note “the initiative of the local power company, ACTEW, to build a
broadband, multi-use network serving Canberra...[that will be] open to all comers—phone
companies, cable companies, and ISPs” (Rogoway, 1999).
Perhaps the most challenging argument to counter, however, involved the repeated
assertion at the FCC that any open access requirement would deter investment. Bewildering to
them were the motives attributed to efforts like the staff report just released. Responding in force:

[W]hen we went looking for the mythic Wall Street cabal standing with linked
arms against Open Access (Hands across Wall Street) we couldn’t find them.
Consider the FCC Staff Report “Broadband Today,” released earlier this month
which states, “there was near unanimous agreement among the cable and
investment panelists that government regulation of the terms and conditions of
third party access would cast a cloud over investment in both cable and telephony
applications.” (The rest of us did not hear the panelist’s testimony because it was
received by the FCC in a closed proceeding last spring.) But when we turned to
the footnote supporting that conclusion, we found only a citation to a
Communications Daily article which cited unnamed Wall Street analysts for the
proposition that the “uncertainly created by open access activity” had caused
“cable stock prices to downturn in recent weeks.” We emphatically agree with
that conclusion. Uncertainty makes investors nervous. Ironically, the FCC’s
position of watchful waiting – also known as deciding by not deciding – is
helping to fuel that uncertainty. But the question of how uncertainty affects the
market is an entirely different question than whether requiring cable broadband
operators to open their pipes to competition will chill investment ("Open access:
A threat," 1999).
161

The advocates were incredulous that the FCC couldn’t tell the difference between
investor nervousness based on uncertainty versus the open access policy itself. “On that
question,” they continued, “the weight of the evidence clearly indicates that Open Access would
encourage investment. In fact, at a recent KMB conference on telecommunications, two
prominent Internet investors, Anna Maria Kovacs of Janney Montgomery Scott and Richard
(“Ric”) Prentiss of Raymond James & Associates stated that not only could the FCC eliminate the
cloud of uncertainty by affirmatively resolving the issue, but that Open Access would actually
speed market entry ("Open access: A threat," 1999). Sealing their case, the FCC’s audacity and
shortsightedness was confronted head-on. “FCC staff has recently said that they fear that
conducting such an inquiry [into the possibility and technical aspects of open access] would have
a negative impact on cable industry stocks. That is the worst, and most inappropriate, of all the
reasons not to conduct an inquiry. Prompt completion of such a proceeding would substitute
certainty and stability for confusion and rumors,” they spat (Center for Media Education, et al.,
1999).
Cable and AT&T’s collective response was increasingly hysterical in public even as they
retained what appeared to be the backing of the Federal Communications Commission.
Communications Daily reported on comments that crept out of the East Coast Cable 1999
conference, held in Baltimore. In the crosshairs were “aggressive municipal consultants” that
were “forcing cable operators to fight off regulations and ordinances like never before.” States
and municipalities were “seeking to overlay blanket telecom ordinances on existing cable
franchise agreements…and operators need to stay alert in [the] face of Bells and ISPs.”
Cablevision Systems’ vice president of Cable Policy noted: “We have to get [the rhetoric] taken
away from the sound bites of ‘open access’ and ‘don’t pay twice.” The “other side of this issue
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has the sound bites in their favor,” said another executive. The emphasis was on increased efforts
to “educate” local officials; the ISPs, in the form of OpenNET, “manufactured this issue,”
Cablevision’s vice president of policy continued. Adelphia Deputy General Counsel Charles
Stockdale was blunt: “Tell municipal officials there’s no reason to jump into [open
access]…There’s no reason to get out front and get sued.” An emphasis on the plight of the
smaller cable companies was mentioned, and Thomas Power, an aide to FCC Chairman Kennard,
was similarly supportive, noting the “surprising” result of lots of “competition” provided by small
operators. (Again, at what particular scale this would be the case is not mentioned: one can
assume it is once again a purview from such a vantage point that it would be impossible to
conclude otherwise.) Offering a bit of friendly advice, the article noted that “[h]e recommended
the best way to keep Congress from legislating cable’s advanced services ‘is to continue [rural]
deployment.’” Noting that Canada had an open access requirement, Power “echoed other
concerns about pricing regulation, noting Canada’s experiment with open access mandate. He
described how 3 years after passage Canada is wrestling with myriad tariffs, as well as questions
such as what exactly is nondiscriminatory access, and can one provider be charged more than
another” ("Cable operators believe," 1999).
In Consumer Federation of America’s Mark Cooper’s comments to the November, 1999
Consumer Conference sponsored by the Virginia Citizens Consumer Council, he laid out a
continuing strategy going forward emphasizing the ground game at the local and state level. It
was as much a recruitment speech as it was a pep rally. Cooper trumpeted, “The advocates of
non-discriminatory access have won the ‘Battle of the Franchise Transfers’ [for two reasons].
...The moral and economic superiority of the ‘open access’ position—the fact that it promotes the
public interest—has been demonstrated and endorsed by politicians, public interest groups, Wall
Street, and local governments.” Second, “The defenders of discriminatory access have expended
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immense political resources to just break even, using political tactics that have offended many,
and their assets have been dramatically diminished” (M. N. Cooper, 1999, p. 1). The moral
victory had been particularly important, and he took the opportunity to win more to its cause:

The proposed AT&T/MediaOne merger galvanized the opposition to this [closed,
proprietary model of Internet provision] for several reasons. Discriminatory
access to communications infrastructure—roads, canals, railroads, highways,
telecommunications networks—has never been tolerated in this country. Access
to the highways of commerce and the marketplace of ideas has always been
provided on a non-discriminatory basis to ensure the free flow of information.
...Promises that there will be two competitors relatively evenly matched to
provide broadband to residential ratepayers (e.g. telephone company DSL
offerings are currently the next-best thing to broadband over cable) have failed to
ease concerns about the public interest in access to communications. ...Two is
simply not enough to ensure a competitive market. Three or four produces only a
highly concentrated market, which itself cannot be relied upon for vigorous
competition. Three or four competing systems will not provide freedom of
expression if they are all closed, and all closed is the inevitable outcome of
allowing one to be closed (M. N. Cooper, 1999, p. 2).

Localities that demand open access are portrayed as coming out ahead; their
infrastructure would be “more hospitable to all independent ISPs” with “fewer exclusive business
relationships” standing in the way. “The independent ISP community will have blossomed in
these localities, since the creativity of the Internet is based on open access and, in many respects,
the Internet’s most vibrant attributes derive from local and regional content providers” (p. 4).
Forebodingly, he intoned,

As the war at the local level plays out, the AT&T/FCC cabal will seek to shift the
issue to the federal level by having the broadband Internet declared a
telecommunications service. The FCC will then assert jurisdiction and do
nothing. The FCC’s promise to act swiftly if it perceives market power are not
convincing, especially in light of its failure to act in the past—when cable TV
rates skyrocketed and mergers and acquisitions have moved forward in flagrant
violation of FCC rules. ... Whether the final decisions are made at the local or
national level, the grassroots basis for open access will have been laid in the city-
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by-county fight. The more cities and counties that step up and take a pro open
access position as the franchise renewal process begins, the bigger the base to
ensure the ultimate victory” (M. N. Cooper, 1999, p. 4).

Apex

We arrive at yet another point of historical ambivalence. This moment, more than any
other which would follow, is the closest the United States ever came to a regime whereby any
mode of broadband provision would be required to provide anything approaching
nondiscriminatory interconnection to competing sources of Internet service, much less broadband
common carriage service. Taking advantage of legacy cable rules, advocates were able to
advance their cause via their top-down network of consumer organizations across the country
everyplace that a cable franchise that AT&T desired made its home. The requirement, one that
would be attacked in coming years for exactly these reasons, that each locality had a say in how
its infrastructure operated provided thousands of potential footholds to trumpet their case.
These victories, however, would prove pyrrhic. This would be due to a number of factors
that broader systemic forces would be able to take advantage of. One was the deliberate
positioning of the consumer advocates between capitals: even as they recognized the possibly
duplicitous nature of their erstwhile strange-bedfellows, this provided them a number of national
footholds. One was that the policy space was opened by the potential cancelling-out of corporate
interests, a facet with which consumer advocates were well aware and playing to their advantage.
To retain their position here as both an ally and a viable threat, they needed to hew their message
to one strictly of competition. Other issues certainly lay in the recesses of their minds: a particular
desire to preserve noncommercial activity online, as well as noncommercial operators, which they
recognized served different constituencies and provided a needed corrective for the emergent
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commercial dominance appearing online. But they did not take this critique to its logical end.
Here was an opportunity to examine how, as Erik Sten was observing in learning about Powell’s
Books predicament aboard online portals, a commercially-driven semantic understanding of the
contents aboard the Web might slant the availability not just of particular avenues of locally-
driven commerce but democratic content instead. In lieu of such a direction, this was countered
not with a questioning of the commercial drive but a suggestion to radically commercialize the
Internet’s operation by liberalizing it still further.
This, however, was not a choice that was possible for these advocates. They were as
ensconced in the governmentality of the time in Washington as their corporate allies and enemies.
Given the effort of the Hundt and Kennard administration to continue the liberalization drive
online, such an argument was impossible if they expected to continue being called before local
Commissions and before national organs of governance as the FCC and Congress. Such an
epistemological foundation would prove both their strength and their Achilles’ heel in this first
phase of a struggle over the nature of the nascent public Web itself.

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Chapter 4: Knowing the Net (2) - Nadir

Several events would bring an end to this phase of the struggle for the definition of open
access in relation to the operation of quickly-commercializing broadband networks. The first
emerged from the fallout stemming from a small, quietly assembled cabal that FCC Chairman
Kennard to put together in the hopes that a deal could be hammered out on open access without
official regulation. Meetings commenced in the late summer of 1999 amongst six parties—
AT&T, Excite@Home, MindSpring, Atlanta Mayor Bill Campbell and the FCC’s own Local and
State Government Advisory Committee. Andrew Schwartzman, of the Media Access Project, was
included in these talks as well. They culminated in an early December announcement by AT&T
that it would offer a “limited” opening of its network in 2002. The letter released December 7 was
signed by David Baker, Vice President of Legal and Regulatory Affairs for MindSpring; James
Cicconi, General Counsel and Executive Vice President of AT&T; and Kenneth Fullman,
Chairman of the FCC Local and State Government Advisory Committee (D. N. Baker, et al.,
1999).
To the uninitiated, this letter appeared to be a watershed moment in the overarching
debate. The signing parties made a number of promises. One was that AT&T would provide its
customers with “a choice of ISPs,” giving users the ability to choose “without having to subscribe
to any other ISP.” AT&T would provide a range of speeds and prices “reasonable and
appropriate” to those speeds. “Direct access to all content available” on the Web “without any
AT&T-imposed charge to the consumer for such content” would be on offer. The emergent giant
would guarantee that the “functionality of [a user’s chosen] ISP” would be as good as that ISP’s
performance on other high-speed networks, “subject to any technical constraints particular to, or
imposed upon, all ISPs using AT&T’s cable system to deliver high-speed Internet access.” AT&T
would negotiate with ISPs seeking carriage aboard their network “upon the expiration of existing
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exclusive contractual arrangements”—that is, AT&T’s own ‘obligation’ to Excite@Home. In the
course of these negotiations, the company promised new comers “Internet transport services for
high-speed Internet access at prices reasonable comparable to those offered by AT&T to any
other ISP for similar services, subject to other terms negotiated between the parties on a
commercial basis.” Independent ISPs would be able to market their services using AT&T’s
network to those who had not elected an ISP; they could bill customers directly. AT&T would
offer the ability to “differentiate services...such as enhanced customer care and advanced
applications” and the opportunity to “maintain brand recognition.” All of these facets were
“subject to terms and conditions to be agreed upon...which will address, as appropriate, but not be
limited to issues such as pricing, billing, customer relationship, design of start page, degree of
customization, speed, system usage, caching services, co-branding, ancillary services, advertising
and e-commerce revenues, and infrastructure costs” (D. N. Baker, et al., 1999).
The independent ISP community largely welcomed the development ("OpenNET
Coalition welcomes," 1999). However, confusingly, in a supplemental letter to the FCC one of
the ‘grand bargain’ signatories, MindSpring, walked back some of its perceived enthusiasm
regarding the new deal. They expressed concerns about the extended period before such
conditions would become a reality. While the principle established was positive, they wrote, it
left AT&T maneuver to “impose constraints such as limitations on video streaming or IP
telephony on all users of their system.” Even as its signature on the AT&T letter sent a mixed
signal, MindSpring looked to play both sides of the political fence, urging the adoption of a
national policy on the matter:

We hope that the Commission and other federal policy makers will grasp the
opportunity that this initial agreement creates, because only clear and
unambiguous federal policy can make the promise of this first step real,
enforceable and timely. Otherwise today’s agreement may not benefit consumers
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for years to come. We again respectfully request that the FCC initiate a
proceeding to address these issues on a comprehensive basis. In setting out public
policy principles, the FCC would establish the “rules of the road” that would help
ensure fair workable and enforceable agreements between parties (D. Baker,
1999).

Public interest advocates smelled nothing but public relations gimmickry. Worse, it was
via the trade press accounts of the agreement that news of Schwartzman’s under-the-radar
involvement became known, causing no small amount of strife amongst the community of
consumer advocates working on the issue. In his own response to the AT&T/MindSpring letter in
an open letter to Kennard, Schwartzman wrote, “In accepting your request to meet with AT&T
and others, I placed at risk my relationships with my clients and my professional colleagues. I
have had several very emotional conversations in the two days since word of my involvement
was leaked to the press, and one client has directly accused me of a breach of trust. ...I am
confident that I will be able to convince my [colleagues] that I did the right thing” (Schwartzman,
1999).
Schwartzman had left the negotiations several weeks before they came to a close.
(Notably, Excite@Home had left the talks early as well, so AT&T may not even have been able
to make good on its commitments expressed; this no doubt also informed Schwartzman’s
decision.) He had several specific concerns, and these go to the heart of the manner in which
AT&T was trying to stretch some notion of ‘open access’ to the limit, serving both as a public-
relations move and further muddying the waters of “what open access was.” AT&T was being
disingenuous, claiming that it was waiting for its exclusive contracts with Excite@Home and
RoadRunner to expire before committing to allowing rivals aboard—this despite having
controlling stakes in the companies. AT&T remained unwilling to commit to its users in writing
that they would not have to purchase a bundled ‘package’ to obtain Internet access. Further,
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AT&T missed the point of “open access,” which he stressed meant for consumer advocates that
“cable operators provide competing ISP’s with full access to their systems under the same terms
and conditions, and at the same rates, that access is available to affiliated ISP’s. An operator
should not be able to restrict offerings to those which its affiliate chooses to provide”
(Schwartzman, 1999).
A crucial facet of AT&T’s intentions was not readily apparent in their letter. Where ISPs
could gain admittance to the last mile matters in Internet geography, and it was becoming
apparent a simple requirement to ‘negotiate’ with competitors was not going to be sufficient.
From what Schwartzman could gather in his discussions behind the scenes, AT&T was forcing its
ISP competitors to use AT&T’s own transport from the cable headend (from whence the wire
goes straight to households) to the Internet backbone itself, thus allowing the company to still use
its policy-based routing capabilities to potentially debilitate rival offerings. It would also result in
additional revenue in AT&T’s pocket, as ISPs would not only need to pay the company to access
customers, but they would need to purchase “special access” to the Internet backbone; this would
apparently be the case even if a rival ISP had already built a regional hub near the headend
already, or even had constructed its own transport to the Internet backbone. AT&T’s condition
would render such investment redundant. Perhaps most offensive to Schwartzman was the
duplicitousness with which AT&T handled the whole debate:

Even as technologists at the highest levels of AT&T and Excite@Home were
representing to me that there is no technological impediment to providing
citizens with access to multiple ISPs, their lobbyists have continued to argue the
contrary position before numerous state and local legislative and regulatory
bodies. Indeed, a significant factor in my decision to withdraw from the talks you
asked me to attend was the claim contained in an October 15, 1999 article by
Excite@Home’s General Counsel that “The technology simply does not yet exist
to allow multiple ISPs to share a coaxial cable on a commercial basis”
(Schwartzman, 1999).
170

He ultimately asked Kennard to “take a fresh look at the open access issue, realizing that
AT&T’s recent moves do not represent a solution to any of the serious public interest concerns
voiced by consumer groups” (NoGatekeepers.org, 2000b).
The other core advocates were livid. Reacting to AT&T’s announcement of an
“agreement on principle” to open its network to rivals, the Consumer Federation of America,
Consumers Union, and the Center for Media Education called AT&T on its half-baked
compromise. Via press release (Consumer Federation of America, et al., 1999), the groups
announced that it “fail[ed] to address the basic issues that surround the migration of the Internet
into the high-speed cable environment. In particular, AT&T’s new policy offers no assurances
that it will treat all ISPs equitably, or that it will rescind the content restrictions that it currently
imposes on its broadband Internet customers. And customers will have to wait two more years—
an eon in Internet Time—for even AT&T’s meager concessions to take effect.” The Center for
Media Education’s Executive Director Jeffrey Chester expressed his own dismay:
“Unfortunately, AT&T’s announcement has more to do with public relations than with the public
interest…It’s not surprising that three of the six parties to the agreement refused to sign, which
underscores the need for FCC action in this area.” Gene Kimmelman of Consumers Union added,
“Cutting preferential deals with affiliates and a few most-favored outsiders is no more likely to
open high-speed broadband to more choice and lower prices than has occurred for cable
television itself.” (Consumer Federation of America, et al., 1999). Mark Cooper of Consumer
Federation of America added, “The real issue here concerns the basic architecture of the
Internet...and how that architecture—traditionally open and nondiscriminatory—will be
transformed in a closed cable environment. AT&T’s announcement makes absolutely no
concessions in the areas of differential service, discriminatory transport, and the ultimate control
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of customer accounts-all of the hallmarks of cable monopolies that we simply cannot allow to
become the new standard of service for the Internet” (Consumer Federation of America, et al.,
1999).
Kennard’s response was delivered in an address before the California Cable Television
Association, responding only thusly to the AT&T/MindSpring letter, and leaving out any critique
provided by public interest advocates:

Some call it open access. Some call it forced access. Sometimes it’s just a pain in
the access. …Everyone I talk to about this issue - leaders in your industry, the
ISP industry, franchising authorities - all embrace the concept of openness.
Everyone seems to agree that openness and choice are what consumers want and
will demand. This debate is really about how to get there. There are two choices:
we can rely on the market to facilitate openness; or we can try to regulate our
way there. For now, I’m putting my faith in the marketplace. Unless a compelling
case can be made for government action - a failure of the market to maximize
consumer welfare - then we should give the marketplace a chance to work. …
Last summer, I encouraged some of the stakeholders in this debate to come
together and really engage on the issue of how unaffiliated ISPs will get access to
cable’s broadband pipe. As a result, two weeks ago, these stakeholders, including
AT&T and MindSpring/Earthlink, announced an agreement-in-principle that will
allow AT&T’s cable customers access to the Internet through unaffiliated ISPs.
This is a positive first step. It is just a blueprint, a plan-in-progress, but it is a
start. I encouraged these discussions because all the stakeholders were telling me
that they believed in openness, but the stakeholders weren’t talking to each other.
I wanted to facilitate a dialogue, a dialogue that could lead to marketplace
solutions rather than government mandates. AT&T and MindSpring stepped up
to the starting blocks. Now I urge them and I urge you today to be the first out of
the starting blocks. I urge you to do this because this is what consumers want
(Kennard, 1999).

He further challenged the industry before him in the same talk to build with “openness”
in mind—with one particular plank being ‘open boundaries,’ by which he meant,
“interconnection is encouraged, and bottlenecks and content control are eliminated. The borders
are porous, not closed or walled-off, and outside programming and services are allowed to enter
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the network and interact freely with consumers.” But as long as his broadband vision was a plan
by no-plan, the issue continued to fester.

From vague directive to the core

D.C. based consumer advocates and their allies in the states had long held
nondiscriminatory open access not as a technical directive, but rather as a business relationship
that should be required of industry players; they left the details to the participants. Now, their
arguments were increasingly forced into nascent networks’ innards by AT&T’s actions and the
FCC’s meandering. The FCC simply sat bewildered on the sidelines; in the meanwhile, AT&T
used wordplay to force a technical definition. The core advocates in Washington increasingly
drew on four papers to this end, with Broadband in the Public Interest and the
NoGatekeepers.org website serving as their vehicle for mobilization. Two had been
independently filed with the FCC as part of the AT&T/MediaOne docket proceeding, but they
remained to be materially rendered relevant elsewhere: the D.C. based advocates would do just
this. One was a white paper written by University of Michigan economist Jeffrey K. MacKie-
Mason (1999). MacKie-Mason provided a needed academic argument that open access
requirements would not deter investment. Leading off with a quote from the Canadian Cable
Television Association which defended Canada’s open access policy, he presented evidence that
not only would open access not “reduce the value of broadband last-mile transport infrastructure,”
it would render the companies who operated under open access quite profitable; looking to
Canada as a comparison, arguments that the condition deterred investment were self-evidently
false, as providers there were “investing in broadband facilities faster than the major U.S. cable
operators” (p. 2). He summarized that broadband service profits would be “more than sufficient”
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to induce rapid investment; that cable broadband transport “profits will be higher,” and
“Consumers will benefit tremendously from the greater quality and variety of ISP service,” thus
“increas[ing] penetration rates” (p. 3).
The remaining three papers provided extensive critique of the FCC’s policy of waiting
and watching as potentially causing great harm to the evolution and functioning of the Internet
itself. These arguments informed Mark Cooper’s reaction to the AT&T/MindSpring letter. While
advocates had been arguing in the abstract in this matter all year, these papers provided explicit
technical discussion of the ramifications involved. The first was a working paper for Berkeley’s
Roundtable on the International Economy by François Bar, Stephen Cohen, Peter Cowhey, Brad
Delong, Michael Kleeman, and John Zyman entitled “Defending the Internet revolution in the
broadband era: When doing nothing is doing harm” (1999). The second was a comment
submitted into the FCC’s docket regarding the AT&T/MediaOne merger by Mark Lemley and
Lawrence Lessig (1999). Lessig had by this point been pounding home his message about the
shifting nature of the Internet for going on three years (as he recalls in Lessig, 2000, p. 15); he
certainly was prominent in other media and had to have been known by members of FCC staff
throughout the agency (Streeter, 2011). However, this was the first time, to my knowledge, that
his work was finally articulated to direct advocacy work in Washington, soon to be beyond.
Consumer advocates would take this to an entirely new level, becoming his advocate. The last
was a brief piece by MIT’s Jerome Saltzer (1999), crucially one of the original authors of the
papers outlining “end to end” networking architecture.
Bar et al. sought to distill whether there was a pressing need for the FCC to ‘regulate’
broadband over cable, and if so, what the least invasive form of such regulation may be. Theirs
was no work of radicalism, or even any attempt to bust up a potential trust forming: they offered
no suggestion that AT&T should not be allowed to operate its own ISP or other ‘vertical’ market
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service atop its network. They instead examined the various ways @Home thwarted innovation
and freedom of use aboard its service. For instance, they limited downstream online video from
other sources to “about ten minutes per day;” they limited upstream traffic, erected prohibitions
against setting up a server over one’s home connection, performed “technical biasing and
limit[ed]…performance for non-partner content.” They enforced prohibitions against using
@Home for “work-related activities, for which customers are expected to purchase the more
expensive ‘@Work’ service” (Bar, et al., p. 25). They noted evidence from Excite@Home’s
annual report that @Home intended to explicitly privilege partners by steering users unknowingly
to them, something quite simply done by ensuring that partner content would load faster than
non-partner content, amongst other options. Bar and his co-authors emphasized the location of
innovators in networks: in present systems, these had productively existed at network edges,
rather than within the network itself; such activity stood to affect how the broader network itself
would operate, which, in their view, was the point. This would, of course, be the common refrain
for years to come in these debates. They conclude that media that possess market power—with
cable being a sure example—the FCC should look toward what their British counterparts had
done in favoring ex ante openness principles to protect innovation.

The policy stakes are much larger than the competitive fates of particular groups
of ISPs. What is threatened, if open competition is not maintained, is the
continuing evolution of the Internet, the innovation in and the evolution of
electronic network-based business, and therefore the competitive development of
the network economy as a whole. …We are not talking here about regulation of
the Internet nor of dealings among the ISPs. Rather, we are talking about
assuring competition for access to the Internet over local networks, broadband as
well as narrowband. Open access should be guaranteed unless it can be definitely
demonstrated that competition in access, and consequently throughout the
Internet system, can be maintained (p. 4).

175
Lemley and Lessig’s comments were a far more scathing affair, but they are no radicals
here either. They allow that the merger of AT&T and MediaOne could well open up a positive
new competitor in telephone service; their concern was instead limiting end-users access to a
broad market of ISPs. Even more broadly, they expressed concern regarding AT&T control and
its implications for the functioning of the Internet, particularly in maintaining the end-to-end
principle which, they felt, had been the basis for the Internet’s robustness:

By bundling ISP service with access, and by not permitting users to select
another ISP, the architecture removes ISP competition within the residential
broadband cable market. By removing this competition, the architecture removes
an important threat to any strategic behavior that AT&T might engage in once a
merger is complete. The architecture thus represents a significant change from
the existing End-to-End design for a crucial segment of the residential Internet
market. Further, there is in principle no limit to what AT&T could bundle into its
control of the network. As ISPs expand beyond the functions they have
traditionally performed, AT&T may be in a position to foreclose all competition
in an increasing range of services provided over broadband lines (Lemley &
Lessig, 1999, p. 20).

Similar to the broad arguments presented by Bar et al. (the authors of that paper reference
an article Lessig had written over the summer), Lemley and Lessig provided additional technical
detail and explicitly took the Cable Services Bureau’s staff report Broadband Today to task. Their
critique was a devastating, full-on shaming of the Cable Services Bureau. They were astonished
at the Commission’s “naïve assumption” that a monopoly would voluntarily open its market to
competitors in the face of the rapid consolidation transpiring in the wake of the
Telecommunications Act:

The Bureau does not explain exactly what “market forces” will compel AT&T to
open this market. How exactly will customers of a certified natural monopoly
exercise the power to “vote with their wallets?”... [I]f the Bureau’s hope is that
AT&T will be forced into open access because consumers will delay their switch
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to broadband in boycott of its closed access policy, it is a supreme piece of irony
to suggest that it is the threat of regulation that will delay the deployment of
broadband technology (Lemley & Lessig, 1999, p. 33).

With near-ridicule the authors noted that even if bottlenecks should develop, the FCC
was unhinged if it thought it could put the genie back in the bottle once unleashed. The Cable
Bureau was concerned that even the threat of regulation might be a barrier to investment in itself:
the irony, Lemley and Lessig point out, is that if to hint at regulation presents a barrier to
investment, the FCC is doing just this! The Cable Bureau’s argument thus makes no sense.
Perhaps most damningly, the Bureau’s difficulty in “defining open access” was
lambasted in no uncertain terms:

The Bureau maintains that there is neither agreement on how to implement “open
access” nor agreement on what “open access” is. But this part of the report reads
like a poor imitation of a Socratic dialogue. Obviously, if one gathers a collection
of bright lawyers and technologists, each advancing different interests, one can
create a cacophony of views about what “open access” is, just as a good law
professor can create a cacophony of views about what “justice” is, or even what
the “FCC” is. But a law professor can not deny that there is an “FCC” merely
because no “agreement” in definition is found (Lemley & Lessig, 1999, p. 30).

If Lemley and Lessig provided a devastating takedown compared to Bar et al.’s more
toned offering, the last paper, by Jerome Saltzer, matter-of-factly emphasized the numerous ways
that cable broadband providers were exercising gatekeeper control already (drawing on some of
the same points that Bar et al. made and expanding upon them). He foretold, “The argument
between cable companies and municipal regulators that has been labeled ‘Open Access’ is
actually just the first of a series of arguments destined to surface as it begins to dawn on
customers that cable companies stand not only as access providers but also as gatekeepers to the
Internet” (Saltzer, 1999).
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Nearly all questioned AT&T’s veracity as it pursued its interests in different regulatory
settings. Lemley and Lessig noted that AT&T was deliberately speaking out of both sides of its
mouth, pointing to reply comments the corporation filed in another proceeding requesting that
dominant telephone companies open their networks to AT&T’s services. Quoting directly, AT&T
told the FCC that “the most important action the Commission can take to speed deployment of
advanced telecommunications services is to vigorously implement and enforce the market-
opening obligations that Section 251 [the unbundling and nondiscriminatory interconnection
clause] imposes on incumbent LECs” (Lemley & Lessig, 1999, p. 31 n18). AT&T, of course,
sought entry to local markets via open access conditions via telephone where they were
dependent on someone else’s wire; but where they were able to exercise control, they wanted to
keep it. Time and again this had been the case. Mackie-Mason was equally quick to point out that
in Canada, AT&T’s had pushed for policies amounting to open access as well. Quoting them
directly in a filing to the Canadian regulator: “If the bottleneck nature of these services [cable
broadband last-mile transport] is not recognized, the establishment of a competitive market may
be jeopardized, and more significantly, undermine the development of Canada’s Information
Highway” (pp. 30n87, emphasis his).
These papers were increasingly cited in filings and reports produced by the four core
consumer advocacy groups in presentations they gave to localities and state legislatures. All of
these were easy to mobilize: their principal advantage in this regard was that none challenged a
privately-supplied and –driven Internet. The significance of Bar et al’s, Lemley & Lessig’s and
Saltzer’s contributions were less their novelty—the core advocacy groups in D.C. were arguing
many of their points but through an antitrust, consumer choice lens—than the opportunity to
introduce a different version of Internet history, one that countered the FCC’s own provided by
Oxman’s staff report: the FCC’s ‘hands off’ was never truly ‘hands off.’ In many ways, the
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pedigrees of these scholars mattered more than their arguments, even as their arguments were
vital: the ability to broadcast research by independent scholars from Harvard (Lessig), the
University of Michigan (Mackie-Mason), MIT (Saltzer) and Stanford and Berkeley (Bar et al.)
and to name them as such commenced on a regular basis, particularly at the state and local levels.
(The Berkman Center at Harvard, it should be noted, was also providing pro bono services for
localities fighting for open access.) The Lessigian intervention cannot be underestimated here: it
provided a new basis of analysis for Mark Cooper’s own work in analyzing the state of affairs of
the time, particularly through the model presented in Lessig’s Code and Other Laws of
Cyberspace (evident in M. Cooper, 2000a). As consumer advocates mobilized this work, ‘open
access’ shifted as a concept; it retained its connections to “open, competitive, democratic”
networks but now also overflowed its semantic bounds into a vision of an expansive, ‘free’
Internet (if not an expansive, ‘free’ society itself). These seemingly complementary signifieds
would actually find themselves in an ironic tension. Additionally, these arguments were released
not just to supporters, but to more cynical corners on the corporate side of the debate. But even if
the local Bells were putting the arguments to use, it was further circulating the arguments to
places they may not have reached before; it was win-win. Consumer advocates surely knew this.
Despite the setback of MindSpring signing onto AT&T’s raw deal for open access in
November, the onslaught of spending by cable interests, and the combined forces of a
telecommunications lobby seeking at once to either eliminate unbundling and wholesaling rules
on their systems (while trying to force cable to open their own lines to these conditions),
advocates had managed to find a space to discuss something quite new in policy circles. They had
reopened a discussion into the nature of how the Internet should operate, drawing implications for
how society should operate, if indirectly. In late December, the Center for Media Education,
Consumer Federation of America, and the Media Access Project sponsored a forum at the
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National Press Club (transcript at "Can we preserve," 1999), the first of two, which featured
presentations from Lawrence Lessig (giving an early version of a talk that he would provide next
month in Germany), Ron Sims of the King County, Washington Executive Office, Erik Sten of
Portland, and Mark Cooper. Moderating was Jamie Raskin, Professor of Law at American
University’s College of Law. Raskin implored, “[T]he world of cable Internet offers none of the
cornucopia-like choice that we have today for Internet service providers...The new architectural
infrastructure will thus give us a new and totalizing control to the cable ISP.” He spoke of a
growing movement: “To a growing coalition of cities and counties, consumers, citizens and
media access groups, the problems with this restrictive and closed-down Internet future are
profound…but a clear solution may be at hand which is a requirement of open and equal access
for all ISPs to the communications network on reasonable and nondiscriminatory terms. And it is
important to note that a number of cities and counties have begun to become leaders in this
movement.”
Lessig would touch on points that within years would be on the lips of web-activists
worldwide: he spoke of the importance of the free protocols that underlay the movement of data
across the web; the principle of ‘open code’ that emphasized collaboration over proprietary cover;
and finally the principle of the end-to-end network. Years before Ed Whitacre muttered his
famous threat against freeloaders that would touch off a second round of debates regarding the
operation of broadband networks, Lessig called attention AT&T Broadband and Internet
Services’ CEO Daniel Sumners who, when asked barely a week previous if cable broadband
would permit streamed video, responded, “No, it wouldn’t be used to stream video, AT&T didn’t
spend $56 billion to get into the cable business, quote, to have the blood sucked out of our veins.”
That this was spoken nearly a month after announcing their planned opening of their
networks two years hence was an irony not lost on the crowd assembled. The moral high-ground
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had been reached with this gathering, and these advocates’ worlds were about to be torn apart
from within as a prominent ally would defect ("Can we preserve," 1999).

AOL buys a wire of its own

It had, perhaps, long been predictable that AOL would eventually peel off with some
cable partner. In early January 2000, they announced their proposed takeover of Time Warner in
the largest corporate merger ever as of that time. Even as the FCC continued to profess that,
analytically, DSL and cable belonged in the same market (even to the point of perhaps including
dialup Internet access as well in this mélange), the NoGatekeepers.org onetime ally knew as well
as the consumer advocates did that cable was going to come to dominate broadband for the
foreseeable future—for the reasons that they had helped to argue as part of the OpenNet coalition.
At a second briefing on these issues at the National Press Club—this time featuring the
involvement of the ACLU, although their worries centered around government filtering of the
Internet—CFA’s Mark Cooper was justifiably unforgiving:

Two months ago, almost to the day, in this very room, I offered the observation
that the large ISPs were probably off somewhere in their ski lodges in Aspen
negotiating deals for commercial access. ...I was, of course, far too limited in my
vision. The exotic location of the start of the negotiations was China, not a ski
lodge in Aspen—even more difficult for the little guys to get there—and the
outcome was even more dramatic. It wasn’t a deal for commercial access; the
largest narrowband ISP bought the second largest cable company. The message,
however, is exactly the same, and quite clear: we cannot allow issues such as the
freedom of speech, the free flow of ideas and the flow of commerce in our
society to be decided by the whims of corporate interests which change with
every merger. We must have a binding public policy obligation that provides
open access to the thousands of little ISPs who seek to reach the public in an
open and unhindered way.

181
Ironically, when the merger was announced, the two CEOs were proud to say
that the first thing they did after they did their deal was call the CEO of AT&T
and offer to cooperate. Now, from the view of a large cartel dividing up an
industry, that’s what you do. And from the point of a consumer advocate who
wants competition, this is not comforting ("The future," 2000).

AOL, in the meantime, sought to capitalize on its past affiliations with OpenNet and,
indirectly, the NoGatekeepers coalition. Early on, the company announced that they were still
committed to open access. CEO Steve Case told trade press that “now that No. 1 [MSO] AT&T
and No. 2 AOL Time Warner are both on record supporting consumer choice,” the issue would be
resolved soon. Their vice president followed up that as a result, “Government action is less and
less needed,” even though the company would remain “a dues-paying member of OpenNet”
("AOL-Time Warner open access," 2000). Large ISPs, such as MindSpring, expressed confidence
in AOL; all the same, conflicting reports of members of the OpenNet group “seething” were
indicative of the pressures smaller ISPs felt, now that their largest member may be partially
responsible for their future viability.
Playing the bad cop to AOL’s good, cable groups utilized front groups to argue their
interests. The AT&T-born Hands Off the Internet’s executive director introduced one of the
tropes most useful in neutralizing the influence of the consumer actors—that consumer groups
themselves had been serving as front groups or “astroturf” themselves for AOL (Jacobson, 1999).
“For a year now,” he said, “AOL-backed groups have been active in pushing state and local
access regulation in franchise transfers and renewals across the country. It will be interesting to
see if they are as aggressive in promoting this regulation in the service territories for AOL-Time
Warner” ("AOL Time Warner latest," 2000). This was merely showboating for the press; the
Center for Media Education, Consumer Federation of America, Consumers Union and Media
Access Project issued a near-instantaneous statement that they did “not want to be beholden to a
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giant media-Internet dictatorship, even if it promises to be a benevolent one” ("AOL-Time
Warner open access," 2000). However, with the profusion of front groups involved in the debate
and the politics increasingly difficult to follow, merely the suggestion that they had ulterior
motivations needed to persist to do damage.
An even more problematic message emerged fomented by AOL’s past push for open
access, expressed best by the bipartisan pair of Senators DeWine (R-OH) and Kohl (D-WI) of the
Senate Judiciary Antitrust Subcommittee: the deal “adds a new wrinkle to the broadband ‘open
access’ debate by potentially resolving it through private negotiation rather than by government
regulation” ("Few regulatory obstacles," 2000). National Cable and Telecommunications
Association president Robert Sachs capitalized on exactly this message. “Cable systems and
programming networks are being validated as key to any long-term business strategy for the Web.
…It also removes any question that market transactions are far preferable to government
regulation in sorting out the complex and promising destiny of the new economy” ("Few
regulatory obstacles," 2000).
Given that this time AOL was purchasing cable franchises, the process of local
negotiations were set to begin anew in each locality with a Time Warner system. Smart regulators
attempted to topple AOL and AT&T’s seeming benevolence under its own weight. Still awaiting
an ultimate court ruling from the Ninth Circuit on his own case, David Olson wrote to franchise
authorities, roaring that since AOL had been the biggest supporter of open access in the past, “it
seems that no good-faith objection can or should be made by AOL under the circumstances” in all
local franchise authority transfers of cable systems to the new corporate entity. Action became
intense once again at the local level. In addition to being the first of a set of fraying relations with
what had been a semi-unified front in the open access battle, the AT&T-MindSpring letter served
its purpose to render the notion of ‘open access’ deliberately less clear and more arcane—why
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ask us to do something that we’re promising to do?—and put more of the onus on advocates to
make the case that an officially-mandated access policy remained relevant, necessary, and even
understandable. Broadband in the Public Interest noted the developments regularly as the core
group redoubled their efforts.
The new politics in play were apparent when a new front opened in Henrico County,
Virginia, as the CFA and the Virginia Citizens Consumer Council urged authorities to require
open access themselves; advocates praised the initial expressed intention of doing so and sought
to reassure them of their decision despite the AT&T/MindSpring letter, contesting any notion
pushed by AT&T and their front groups that this settled matters. CFA and VCCC concluded,

The FCC will likely ignore Mindspring’s request to hold a rulemaking on open
access. Over a year ago, the FCC flatly denied our request to conduct just such a
rulemaking. In the intervening months, the agency has aggressively sought to
deny cities and counties the authority to take this issue up. The FCC also has
reiterated its position that no open access policy is necessary. Simply put, if, as
we believe, open access is in the public interest, the only way it will happen is if
local governments insist on it. All of our lives would be made much easier if the
FCC acted responsibly in this matter. It has not, however, and we have no reason
to believe it will do so any time soon (Consumer Federation of America &
Virginia Citizens Consumer Council, 1999c).

They also pointed out the hypocrisy inherent in AT&T’s approach:

In fact, AT&T lobbied hard for conditions in the Telecommunications Act of
1996 that prevent the local phone companies, with whom it wishes to compete,
from leveraging their monopoly control over the telephone network in exactly the
way it is abusing its newly purchased market power in the cable TV industry.
Our earlier documents showed that AT&T demands open access from telephone
companies for DSL service, where it does not rely on its cable monopoly for
access. AT&T has constantly litigated interconnection agreements to enforce
open access conditions for local telephone service. ISPs have none of these rights
under AT&T’s proprietary, self-serving definition of open access (Consumer
Federation of America & Virginia Citizens Consumer Council, 1999c).
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Advocates themselves were pushing the envelope with these comparisons. Should cable
systems be required to provide the access to independent ISPs that consumer advocates sought, it
would be easier for an ISP to gain access to end users over cable systems than over a
telecommunications company’s DSL systems, as they would not need to either become a
telecommunications provider themselves or make a side-deal with a company that was. As such,
and with major incumbents and cable companies realizing this, vicious politicking erupted “with
the now-typical television advertising, direct mail, and misleading print ads” ("News," 2000), the
municipality followed through with just such a requirement, lauded by the Consumer Federation
of America. Such praise was necessary, as the AT&T/Mindspring letter easily could have flagged
momentum on the issue:

[I]n what was to our knowledge the first opportunity by a local cable franchise
authority to examine the open access debate since the AT&T-Mindspring plan
was announced, open access was endorsed. . …The Henrico decision in favor of
open access was a victory for consumers. The Board of Supervisors, despite
intense lobbying efforts by the proponents of closed access, stuck to its guns.
They refused to buy the argument that private negotiations between two
corporate entities, which produced negligible consumer benefit, can adequately
replace a considered public policy. The lesson of Henrico is that this debate is far
from over. Local authorities continue to have much to contribute to the
development of a sound public policy on open access (Consumer Federation of
America, 1999c).

Henrico County was rewarded promptly for its efforts with a lawsuit by AT&T—but the
company took its vengeance one step further, performing the kind of infrastructural blackmail
Cooper had described earlier on: the MediaOne franchise’s facilities would not be upgraded, it
declared, until the lawsuit was settled ("News," 2000). AOL saw an opportunity in AT&T’s
arrogance to advance its own interests. Warren’s Cable Regulation Monitor reported that
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OpenNet denounced the suit in a continuing corporate game of hide-the-whoopie-cushion. AOL’s
parasitic perch within the organization gave it cover as ISPs condemned AT&T’s actions as
“completely contradicting [the company’s] earlier pledge to embrace open access,” and that
consumers and regulators should pay attention not to what AT&T says but what they do.
Cheekily, they averred, “monopoly is not just a board game—it is AT&T’s business plan”
("State and local actions," 2000).
Los Angeles became hot again in early 2000 as its Culver City municipality approved an
open access requirement; on its heels West Hollywood announced that in its negotiations with
Adelphia later in the year, open access would be “a top priority” ("News," 2000). San Francisco’s
Department of Telecommunications and Information Services recommended an open access
mandate by City Council and Board, but not for three years ("News," 2000). Montgomery
County, MD, close to DC, held a hearing where “open access advocates squared off against
Comcast. Other localities in the Washington area are also considering the issue as Comcast
attempts to buy nearly every cable system from Northern Virginia to Philadelphia” ("News,"
2000).
Significant pushback continued. Reports were emerging which noted AT&T’s “carrot
and stick” tactics—threatened lawsuits and withheld service for communities considering an open
access policy while accelerating deployment in those that were not ("AT&T threatens," 1999). As
Portland’s Erik Sten said in an interview,

[I]t looks to me like most city councils have come to the conclusion that open
access is the right policy choice, but then they back off for pragmatic reasons.
And that’s a generalization that I’m making, but I have talked with a lot of city
commissioners, and I’m following the media whenever another one gets reported,
and I don’t remember too many places where folks have come out and said that
the right policy choice is closed access. So really it’s a combination of heavy
handed tactics that are pushing a lot of these mayors and commissioners, and
that’s unfortunate ("Interview with Erik Sten," 1999).
186

Consumer advocates pinned their hopes on localities to increase pressure on the FCC to
take more substantive positions; surely with a capital-D Democratic administration in place they
would gain more traction for consumer concerns than a Republican one. For the time being, at the
local level, they were holding their own in a number of key locales despite the challenges of
AOL’s defection from their coalition and AT&T’s aggressive efforts. In Madera County, CA,
AT&T sent 45,000 pre-paid postcards to residents that they could mail in to their local franchise
authority that opposed open access provisions. Authorities nonetheless voted unanimously in
favor of an open access provision despite the campaign ("Madera County," 1999). Once the
expected lawsuit hit, the town folded and “reached a compromise” in early 2000 ("News," 2000).
Richmond, VA, Seattle, WA, and Plymouth Township, MI decided against the policy—all cities
in which advocates had submitted testimony—but Seattle and Richmond were likely to re-
examine the issue in 2000 depending on the outcome of the city of Portland’s lawsuit ("Open
access setbacks," 1999). In St. Louis, MO, the Board of Aldermen and Mayor in late 1999 voted
in favor of open access, but in early 2000 cable interests—the principal provider for the city being
Cox Communications, which was trying to collect clusters of cable franchises itself—launched an
“astroturf” referendum campaign seeking to reverse the decision in the November election. Cox
used its medium to its advantage, airing messages supportive of the campaign while denying
NoGatekeepers and local allies’ own paid advertisements ("News," 2000). In the meantime, cities
that were already obtaining service via Excite@Home were feeling the tensions brewing within
the company. Seattle was one: residents complained of blackouts, slow speeds, and poor customer
service both via email and via telephone—hold times lasted 40 minutes according to reports
("Customers in Seattle," 1999).

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You’ve got the petulant, angry Andy Schwartzman here today, I’m afraid

The culmination of this phase is summarized in a February, 2000 public forum that the
FCC held on the AT&T/MediaOne merger, presided over by Cable Services Bureau Chief
Deborah Lathen. The escalating tensions between consumer advocates and the Commission were
on full display, particularly when Andrew Schwartzman took the dais. “I’m afraid I’m not going
to be the warm and fuzzy Andy Schwartzman today,” he warned. “You’ve got the petulant, angry
Andy Schwartzman here today, I’m afraid” (Federal Communications Commission, 2000c, p.
10). Noting the “curious neutrality” in favor of AT&T as exhibited by the Commission,
Schwartzman was unremitting: his materials indicated that AT&T’s approval was largely a
foregone conclusion by all indications. As a result of past deals including the TCI merger, AT&T
had been in violation of cable ownership rules for months, yet action at the FCC’s Enforcement
Bureau was nonexistent.
However, his testimony is most enlightening in illustrating the nature of activism at the
national level of the time, what it required to be a part of these debates. He was full of bombast,
enraged at the FCC’s seeming inability to keep tabs on its own rules, furious at the procedure that
played to AT&T’s advantage. The cable bureau, in particular, displayed a spectacular blind spot
for the inequities provoked by their seemingly neutral actions:

I have complained repeatedly that the Cable Services Bureau has given AT&T a
platform to push its case by establishing a special web page which provide
downloadable word processor files for all of AT&T’s major filings. Only this
week, in response to my repeated objections, has the staff added an explicit
reference to the fact that other parties have filed pleadings in this case, and
directions on how to find them in the Commission’s ECFS system. A referral to
the notoriously cumbersome and accident prone ECFS is hardly the same thing as
prominent placement on the bureau’s own website. Has anyone on the eighth
floor tried to use the ECFS with a 28.8 modem, rather than their T-1 lines? Those
who (unlike FCC staff) lack high speed connections and fast computers are
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unlikely to find our comments even if they go to look for them (Schwartzman,
2000, p. 3).

He noted that the AT&T/MindSpring letter released in early December had been posted
prominently on the page, whereas Schwartzman’s extensive response was not—it wasn’t
anywhere on the Commission’s website. “I take particular objection,” he added, “to the staff’s
repeated expressions of belief that posting of documents on the Commission’s web page or the
impossibly cumbersome ECFS fulfills its outreach obligation. I represent those on the wrong side
of the digital divide, many of whom have no Internet access, or are restricted to 28.8 baud or
slower speed” (Schwartzman, 2000, p. 3n6). FCC officials and staff, by Schwartzman’s count of
ex parte filings, had 65 conversations with AT&T, “most of them involv[ing] upper level
executives of the company.” Adding to the challenge of public participation of any kind in these
matters, even though such conversations by law needed to be memorialized in a public ex parte,
these were often undertaken via “terse and artfully vague language.” “There is little reason to
seek meetings to reply when there is no way to know what was said,” Schwartzman commented,
providing a typical example:

The full text of the substantive ‘notice’ reads as follows: “We discussed the need
to conform the cable horizontal ownership and attribution rules to the
programming concerns underlying the cable horizontal ownership statute. We
also discussed the impact of the cable horizontal and attribution rules on the
proposed merger of AT&T and MediaOne” (Schwartzman, 2000, p. 5).

This was to say nothing of the resulting potentially problematic corporate entanglements
consummation of the merger would create amongst the major cable companies, AT&T, and AOL.
Schwartzman asked what the effect of the AOL/Time Warner transaction had on this affair, given
that
189

MediaOne and Time Warner are 50/50 partners in RoadRunner, the number two
cable internet service provider. AT&T owns some 58% of Excite@Home, the
number one cable Internet service provider. Consumers Union, et al. and other
parties have complained that this combination will monopolize the market for
delivery of Internet services, and inhibit free expression on the Internet. The
possibility that AOL, by far the largest Internet service provider will now share
ownership of RoadRunner would give these companies even greater incentive to
act in concert (Schwartzman, 2000, p. 2).

Heather Barber, representing City Commissioner Erik Sten and the City of Portland, OR,
offered a passionate plea for intervention:

Both the citizens’ commission and the Portland City Council were excited about
some of the opportunities that AT&T proposed to bring to Portland, or so they
thought. The city was excited to have competitive local phone service that is
needed in Portland. The city was very excited to have high-speed Internet access
available at the home. That is a product that is very much welcome. But both our
citizens’ commission and our elected officials came to the conclusion that we
thought open access was necessary to provide the kind of Internet service that
Portland has become accustomed to.

Portland believes in competition. Portland believes in choice. And from Portland
citizens’ point of view—and Commissioner Sten has talked to hundreds of
citizens since this issue has been raging in Portland over the last year—the idea
of having only one way to access the Internet over high-speed cable modems is
not acceptable in Portland, Oregon. The city has gone through the problems
associated with monopolies and simply believes that open access is the best
approach.

…I suspect you have heard and will hear that local governments are trying to
regulate the Internet. … Simply said, that couldn’t be further from the truth.
Portland has no interest in regulating the Internet, never has, never will. None of
the city’s regulations has anything to do with content. … [W]e do not favor
different technical standards. FCC officials have made the argument - and it has
been bandied about - that if local governments lake action on this issue, the
country will end up with 30,000 technical standards. The city has not asked tor,
nor has it regulated, any technical standard.
190

…Whenever Commissioner Sten is stopped on the street or in the grocery store,
the response is always, keep fighting for open access (Barber, 2000, pp. 1-2).

A representative of Seren Innovations, Inc., an overbuilder started as a non-regulated
subsidiary of Northern States Power Company which was providing services in Minnesota and,
imminently, California, offered, “The best evidence of AT&T’s monopoly power is the fact that
every time an overbuilder like Seren enters the market, AT&T responds by dropping its prices or
adding new services at no charge” (Glass, 2000, p. 2). Khalil Munir, Executive Director of the
Telecommunications Advocacy Project, testified to the uneven and hardly “colorblind”
deployment schedule, calling into question FCC ambivalence at looking more deeply into
deployment patterns in specific markets. He also testified to the difficulties in presenting evidence
of any sort: “[D]ue to the proprietary nature of much of the evidence, and TAP’s inability to
cross-examine MediaOne in a formal hearing process, TAP has been restrained in submitting
further evidence to the FCC” (Munir, 2000, p. 6). Given the politically charged nature of calling
out redlining, he was forced in open testimony to walk back some of his comments: structural
inequality remains something nearly impossible to express in terms accessible to a proceeding
such as this.
Some of the most revealing exchanges took place as a final case for open access was
made to the Commission. Greg Simon, of the OpenNet Coalition, stressed the need for open
access policy to enable a choice of varying ISP providers. This was a point made by consumer
advocates all along, but Andrew Schwartzman expanded the horizon, a brief glimpse into what
always lay behind the strategic choices both in coalition-partners and in rhetorical strategy:

191
Finally, this is not just about choosing your ISP, the formulation that we’ve heard
repeatedly this morning. If you get to choose among a couple ISPs … but they all
agree to limit uploading or to limit the size of video files because the terms and
conditions offered don’t give them that option. If they all agree that they’re not
going to permit certain kinds of filtering, parent’s concern about how their
children access the internet, it’s not open access. Open access involves citizens,
the customers who have a right to speak in an interactive medium and to receive
information. It’s not just their ability to have two or more ISPs to choose from as
a customer. It’s about their rights as citizens to use the internet as a medium of
open expression (Federal Communications Commission, 2000c, p. 49).

Jim Cicconi, representing AT&T, provided the common retort that would become rote
when confronting the issue of opening its networks:

Investors in this company, Excite@Home, which is not controlled by AT&T, but
which TCI was an investor in, along with many others -- and, in fact, there’s a
public component of it, as well as investment bankers and others, went out there
and built a system when no one else would build it. They took the risks, they
secured contracts from the cable companies who wanted to offer this service.
And, in return, they were given a period of exclusivity within which to realize a
return on the investment commitment they had made to build this system. And if
[OpenNet’s] membership has one thing in common, it’s, frankly, that a number
of them want to be able to take advantage of that investment for free. In essence,
at wholesale. Deriving the benefit of somebody else’s risktaking. That isn’t
appropriate. It is not the business of the Government, and I think this agency has
wisely concluded that it is not in the business of requiring the abrogation of
contracts out there (Federal Communications Commission, 2000c, p. 51).

Cicconi also, correctly, pointed out some of the hypocrisy contained in the Bells and
GTE’s membership in OpenNet:

“The Bell companies themselves have absolutely no interest in open access, per
se. They have no ISP benefit that they derive from it. Their sole interest in this
issue is simply to bottleneck the realization of competition in their territories.
GTE is particularly egregious. They’re a member of OpenNet. They operate a
cable system which itself is closed. The Worldwind system is actually advertised
on the internet in a way at odds with the great principles of OpenNet. If you want
a different ISP, you have to pay an additional charge. And I’d be happy to give
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Greg a copy of the letter that was submitted to the FCC by consumer group
pointing this out. And we’re happy that they’ve done that” (Federal
Communications Commission, 2000c, p. 51).

While Cicconi attempted to split the coalition this way, OpenNet’s Greg Simon had a
ready response. As time marched forward, it would prove a point on which advocates for
“openness” would need to repeatedly waste breath to charges of freeloading off incumbent
networks (even as they received regular checks from the same parties for the use of their
networks):

[I]s access to the network under non-discriminatory terms, taking the network for
free at wholesale? No. Is that what AT&T is asking when they go into the local
loop, are they asking to ride for free? Because they want to get a discount? ...We
haven’t even asked for a discount from what they charge their own affiliated ISP.
We’ve asked for the same deal. And that deal is they take two-thirds of every
dollar that @Home makes from a subscriber. We have said treat people as you
would treat your own affiliated provider. We have not even said you can’t have
discounts that are fair for different classes of customers. You just can’t
discriminate in favor of one customer or discriminate against one customer
(Federal Communications Commission, 2000c, p. 52).

Deborah Lathen, Chief of the Cable Services Bureau, decided to test her conclusion from
the staff report she had released the previous fall. In an environment in which multimodal
competition in broadband had developed, she proposed (far as it was from reality), “Do you not
believe that market forces would mandate that they would have to that and the Government
would not have to mandate it?” Simon responded, “When has a monopoly ever given up a
monopoly without some help from the government? …AT&T says they’ll give it up in two and a
half years, but I’ve yet to see that they mean non-discriminatory open access as compared to
deals. That is not open.” (Federal Communications Commission, 2000c, p. 52). Lathen appears to
have largely ignored the response.
193
It was the testimony of François Bar—who had written with his colleagues one of the
papers that consumer advocates saw as crucial to mobilize—which brought order to the affair. He
offered his critiques from the white paper he had co-authored; taking aim at Oxman’s FCC
working paper from the previous summer, he noted, “It was not the unregulation of the Internet,
but active involvement by policy makers that guaranteed openness of the underlying
infrastructure which was the telephone network, and made competition possible in order to spur
the development of the Internet” (Federal Communications Commission, 2000c, pp. 66-67).
Offering the AT&T/Excite@Home combination as an example of what open access was
not, he then offered his view of what it was:

I think open access would need to have two components. One is transparency in
the architecture. And here there’s an interesting analogy which is that the power
derived from control of the architecture in cable internet access is very similar to
the kind of control the owner of an operating system on a computer derives from
control over the APIs, the application programmer interface. … Second, that
other ISPs should really have reasonable access to critical network features on a
comparable basis. So, finally, in conclusion, I would like to address [the
question,] why do anything. And the reason why … is that there are several
indications today that competition would probably be highly imperfect. What we
have today is limited competition between the alternatives. Between cable
broadband and a DSL. The footprints tend to not overlap.” (Federal
Communications Commission, 2000c).

The FCC’s Chief Economist at the time, Howard Shelanski, posed several revealing
questions to Bar. Presented with the scenario of an ‘ideal world’ in which numerous technologies
exist to access broadband Internet in every home, Bar yet stressed that one would need to be sure
that there was actual access to these technologies at the individual market level. To the question
of whether open access would still be necessary in that instance, Bar responded,

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My preference, ultimately, would be to have a framework to deal with this issue
which is not tied to individual technologies. Which is, I think, the reason why
we’re facing this problem today. … I think in the end, also, having an open
framework that is cross platform, cross technology, has a sort of value. That you
don’t necessarily want to develop an infrastructure where different kinds of
technology line up directly with different kinds of architecture because I think the
switching issues for customers will remain there. … [In sum, i]t is not clear to me
that in the end you want a system where you have to pick a whole package of
underlying technology, network architecture, electronic commerce marketplace
architecture and content provision....My sense…is that the more cross pollination
possibilities you make possible, the more experimentation you have. And the
richer the environment will be” (Federal Communications Commission, 2000c,
pp. 71-72).

Shelanski asked, what if there were thousands of ISPs, would open access still be
desirable? Bar replied ideally it would, but the main point was that “[i]f there are limits who gets
to be let in should not be decided by the owner of the infrastructure. I mean, we have all kinds of
mechanism[s]—auctions, licenses…that do not give the entire power to decide who gets
programming or applications or ISP onto the infrastructure just because they own the
infrastructure” (Federal Communications Commission, 2000c, p. 78). After being pressed further,
Bar noted that this is complex stuff, and that he advocated debate on it—of the ilk consumer
advocates had long desired, an honest inquiry into the challenges open access presents, not some
exercise in handwaving. That was, “[one] that looks at the options. That looks at what exactly are
the technical restrictions, not just what the owners of the infrastructure tells us are the restrictions.
… An open debate about looking at alternative allocation mechanisms and consequences” (p. 79).
While the forum provided a consolidated version of debates that would stretch out
another decade, it also revealed other, more disturbing insights. Cable Services Bureau Chief
Lathen, from the transcripts, occasionally reveals herself to be far less conversant on the
broadband issue than one would expect of someone in her position. Several pages of the transcript
are occupied with an exchange between she and AT&T’s Cicconi about the location of the ISP
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service itself. Cicconi spends no small amount of effort explaining to Lathen that the set top box
is not where Excite@Home or RoadRunner or the portal pages they offered were provisioned or
stored (Federal Communications Commission, 2000c, pp. 45-46). This is intended less as slight to
Lathen than an illustration of the newness of it all and the challenges of a regulator facing a new
area; it also provides a degree of signal of what kinds of tacit knowledge underlay the debate
there. Yet it is impossible to not come away from these proceedings without the impression that
she seemed rather underprepared, far more comfortable (and generally far more interested) in
issues of video service than this new emergent medium.
The general taken for grantedness too of duplicitous testimony and input of the major
players as AT&T was also addressed, if by the ‘petulent, angry’ Andrew Schwartzman to
Cicconi’s attempt to tell the panel that cable’s ability to corner the market on broadband was
decreasing by the day: “Maybe they don’t win, but there’s a lot of people out there who sure think
that there’s chokeholds. …Every now and then a CEO forgets that they’re not sitting around
[behind] closed doors…and they’re at a convention and they speak truth that I’ll be gosh darned if
I’m going to let them get onto my cable, spend fifty billion dollars on it, then everybody says, oh,
he didn’t mean it” (Federal Communications Commission, 2000c, pp. 37-38). That this went
without comment from officials in the room spoke volumes more than the comment itself.
As the meeting wound to a close, Lathen’s closing question set up what had been in many
minds a forgone conclusion. “[D]o you think that the merger would give AT&T some kind of
horizontal reach that would allow it to handicap or slow down the growth of competition from
alternative broadband providers such as DSL or wireless, either by virtue of its being able to have
first pick or exclusive arrangements with broadband content and application providers or through
some other means?” To which the various participants answered no—with some, such as Bar,
offering their caveats. All sought to add nuance to the semi-loaded, scope-constricted question.
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Nonetheless, this seemed to settle it: multimodal technologies would not be stymied, and one
could predict that this was a done deal.

Wearing down, ramping up

Even if the lawsuits were still to be decided, real chinks in the armor of local efforts to
obtain open access conditions were appearing. The costs of litigation, for instance, were wearing
down the will of localities to fight; Madison, WI avoided the issue for this reason in late January
("State's largest car dealer," 2000). By May, the Massachusetts Department of
Telecommunications and Energy found that the local governments who had demanded open
access had overreached their authority ("Comm Daily notebook," 2000). The U.S. District Court
in Richmond, VA, unlike their west-coast counterparts, upheld MediaOne’s complaint (Kumar &
Breznick, 2000). Hands Off the Internet, always at the ready to twist the knife, told trade press
that “the judgment ‘underscores the irrationality of having localities try to regulate high-speed
Internet access systems, such as cable lines” ("Cable notes," 2000).
If it wasn’t clear already that the largest players were feeling the strength of their
positions, they expressed them outright at the NCTA’s Annual Convention in New Orleans. One
report noted that executives from America Online, Excite@Home and Microsoft (which itself
was undertaking cable investments) all extolled privately-driven partnerships with cable operators
to “deliver services better and faster” all the while “downplay[ing] their influence as new-media
conglomerates in [the] Internet economy.” They emphasized that “speed to market” held
precedence over scale: “Excite@Home CEO Geroge Bell said, ‘it’s victory to the fastest’”
("Microsoft," 2000). Politics was intense as evidenced by moves in Congress. Pushed by cable
players, a bipartisan group of legislators wrote FCC Chairman Kennard to “move quickly to
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approve the AT&T-MediaOne merger”—without any “onerous regulatory penalties.” The
justification, provided to Congressional leaders, of course, had nothing to do with the Internet
side of the equation: it had everything to do with local telephone competition. The letter noted
that the ‘only exception to new competition’ wrought by the Telecommunications Act was “local
residential telephone” where “facilities-based competition…has yet to become a reality on a
broad scale” ("Microsoft," 2000). Other bipartisan pairings, such as Senator DeWine (R-OH) and
Herb Kohl (D-WI), asked the Federal Trade Commission to investigate the implications of
“Internet routing and caching technology” whereby content providers could store information
closer to end-users, thus speeding up access to this information. Such practices raised “serious
antitrust issues that should be investigated by the FCC and FTC;” and while allowing for the
potential benefits of such technologies, they could also “give preferential treatment to content
owned by affiliates” ("Microsoft," 2000).
In early June, the FCC followed through on the former request and ignored the latter. Part
of the tension with this merger were continuing interests AT&T possessed in RoadRunner, a rival
to its Excite@Home system (Federal Communications Commission, 2000a). These worries had
been expressed by Schwartzman in the en banc hearing at the FCC. The Department of Justice, in
allowing the merger to go through, required via a consent decree that AT&T divest of these
interests. They would not do so; and while consumer advocates would call the FCC on it
numerous times, new Chairman Michael Powell waved these concerns away (although the D.C.
Circuit provided an assist, requiring a reassessment at the time of cable ownership rules). The
decree also covered potential joint actions AT&T may wish to enter with the emerging AOL-
Time Warner. On the FCC side, in lieu of putting into place an open access regime, the
Commission decided to go along with the voluntary (and to advocates, illusory) commitments
AT&T made to provide nondiscriminatory access to broadband providers. Kennard was adamant.
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It was as if the hearing in February had never occurred. “I believe that there are powerful
marketplace incentives to ensure that consumers have such choices. Therefore, I have consistently
advocated that we allow the nascent broadband marketplace a chance to develop before imposing
a government-ordered regime. ...I have been encouraged by voluntary commitments by AT&T
and other cable operators to open their systems so as to accommodate consumer choice. AT&T
has made these commitments to the FCC on the record in this proceeding, including the
commitment that they will not restrict video streaming.” (Kennard, 2000, p. 1).
What is truly remarkable about the order is what was not contained in any of the
individual commissioners’ statements: beyond Kennard’s curt dismissal of advocate concerns for
open access, putting his faith once again in the magic of market forces to stimulate multimodal
competition (and whatever broadband universe that would bring), not another one focused on
broadband Internet access as an issue. Kennard focused on the procedural issues he followed in
considering the merger; Furchtgott-Roth and Powell took issue with the seeming arbitrariness of
these particular procedures described and were desirous of less emphasis on the ‘public interest’
standard in decisionmaking. Powell, in particular, disagreed with the notion taken by the
Chairman that even if an entity complied with “the rules specifically designed to address the
harms at issue” yet “interfere[d] with the objectives of the Communications Act or other statutes”
thus necessitating further requirements, these additional requirements “subsume[d] the rules and
puts too much weight on our more ambiguous “public interest” authority. That authority is meant
to complement, not override, existing rules. … In circumstances where we have a rule that
addresses issues raised by a merger, I would apply the rule and find that the public interest is
satisfied” (M. K. Powell, 2000, p. 2).
Commissioner Tristani’s objections (not to the point of dissent) focused on the delivery
on television, mentioning broadband only in passing. “As with its approval of the CBS-Viacom
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merger, the Commission has once again failed to consider seriously the significant impact that an
AT&T-MediaOne combination could have on the diversity of media voices. By focusing
primarily on technical compliance with our rules, the Commission has not sufficiently analyzed
whether the proposed transaction will undercut a fundamental purpose of the Communications
Act—maintaining independent sources of news and information” (Tristani, 2000).

Localities lose the issue

Even as this merger was still under consideration, the oddball politicking surrounding the
question of open access and the battling notions of what ‘deregulation’ truly meant invaded state
legislatures. Importantly, as in Congress, these initiatives remained as likely to be introduced by
republicans as democrats. The Consumer Federation of America’s Mark Cooper was continuing
to be a presence across the country in statehouses thanks to the CFA’s network of local affiliates.
In February, Cooper testified before the Maryland state House of Representatives’
Commerce and Governmental Matters Committee in support of the passage of the “Internet
Consumers’ Bill of Rights” that would “guarantee open access to the high-speed broadband
Internet” (M. Cooper, 2000b). In Michigan, the message of pro-open access advocates was
making it outside of legislative backrooms, as Broadband in the Public Interest reported that
stories were appearing which highlighted “concerns many Detroit-area citizens have with the
cable industry’s plans to require consumers to purchase the cable monopoly’s ISP;” but despite
examination of the issue, no Detroit-area authorities had required open access “in large part,
according to one city councilwoman, because of AT&T and MediaOne’s lawsuits against every
locality supporting open access” ("News," 2000). What wasn’t happening at local levels was at
the level of the state legislature: Mark Cooper appeared in early April before the Committee on
200
Technology and Energy, in Lansing, Michigan to testify in favor of the “Internet Access
Enhancement Act” which would do similarly to the bill proposed in Maryland (M. Cooper,
2000c). He prepared a statement for the Massachusetts Consumers’ Coalition to promote open
access via the proposed Massachusetts House Bill No. 5006, “An Act to Promote Competition in
the Cable-Based Internet Access Market” (Consumer Federation of America, 2001). Further
efforts saw letters to the San Francisco Board of Supervisors supportive of an open access
ordinance (Consumer Federation of America, 2000a).
During these appearances, Cooper was able to turn AT&T and AOL’s words to his own
advantage; in late February, Consumers Union, Consumer Federation of America and the Media
Access Project issued a report (2000) that analyzed AT&T and AOL’s past stances in the US and
abroad (recall AT&T had sought open access principles elsewhere, as they had over DSL lines in
the United States). For those still unable to accept a static definition of the concept of open
access, they were able to identify key planks that the companies themselves had seen as
necessary. Cooper distilled these planks into the following principles for broadband access going
forward that would be advocated to state legislatures:

• Comparably efficient interconnection, with the identification of several
options for physical and virtual interconnection…
• Open standards with change management processes.
• ISP neutral network management.
• Minimum content and service restriction, consistent with neutral network
management
• Performance parameters, including a list of services to be made available
and practices to be avoided.
• Confidentiality of competitively sensitive information and protection
against abuse of such information by vertically integrated broadband
service providers.
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• A wholesale relationship between unaffiliated ISPs and vertically
integrated service providers from whom the independents wish to
purchase facilities.
• Rates for transport service that are subsidy free and not anticompetitive.
• Bundling and marketing provisions that prevent the abuse of leverage
over monopoly services (Consumers Union, Consumer Federation of
America, & Media Access Project, 2000, p. iv).

Officials in Utah were grappling with the quandary that its own 1995 Utah
Telecommunications Act, approved by voters, apparently required its cable franchises to provide
access to their systems, but the law’s continued legality in light of the 1996 Telecommunications
Act meant it remained contested ("Utah law raises," 1999). In late 1999, Pennsylvania’s state
legislature was reportedly considering a bill that would force all cable operators to operate on
open access terms. “After the bill gets out of Committee, [Rep. Ronald Raymond, the bill’s
sponsor] expects the Pennsylvania legislature to be ‘flooded’ by lobbyists from both ISPs and
cable companies” ("News," 1999). One was introduced in early 2000 ("News," 2000).
In Ohio, Republican Representative George Terwilleger introduced a pro-open access bill
mid-February, which was greeted with a threat by Ohio Cable Television Association to fight it
("News," 2000). In Virginia, SB 707—proposed by Fairfax republican Warren Barry—required
all cable companies “to provide interconnection to ISPs on nondiscriminatory rates, terms and
conditions at any technically feasible point (chosen by the ISP);” further, it offered a “most
favored nation” provision, providing that if another state offered more stringent requirements,
those would apply in Virginia as well ("News," 2000).
The news was hardly all rosy. Los Angeles’ Information Technology Agency voted to
approve AOL-Time Warner’s franchise transfer with no binding access condition: rather, they
accepted the companies’ promises to maintain some form of open network. Amazingly, AOL
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even found this unpalatable despite past rhetoric, and commissioners chided representatives of the
company for their duplicity ("Open access advocates suffer," 2000). The City Council would still
need to approve the arrangement; Time Warner indicated it would fight even this weak provision.
These were arrogant, heady moves considering its purportedly pro-’open access’ position.
Elsewhere, New Hampshire’s House Science, Technology and Energy Committee “killed a bill
that would have required cable companies to open up the market if they had a 30% market share
for Internet access” ("News," 2000). In Vermont, then-Governor Howard Dean offered moderate
support for a “leased access” provision of open access but shied away from anything else,
supporting Kennard’s cautious approach: “I commend your efforts to encourage cable companies
to open their systems to ISPs voluntarily... this limited change in AT&T’s policy [MindSpring
deal]couldn’t have taken place without the implicit threat of regulation that your efforts
represented.”
By midyear, one count stood at 14 state legislatures attempting to move on open access—
all had been stymied (Kumar & Breznick, 2000). All the same, localities were reported to be
thinking cleverly about ways to enhance their service; one report said, “[P]ublic-interest models
are emerging in a number of other cities that are trying to gain concessions from the cable
franchises. For example, some cities seek to retain 10 percent of the bandwidth for non-profit
organizations. Others hoped to allocate 3 percent of cable fees to fund public-access channels or
to get one-time grants to convert public access stations -- libraries, community centers—to
digital” (Hazen, 2000).

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A double-edged sword: the Ninth Circuit decides

On June 20, the Ninth Circuit rendered its decision on the Portland appeal, fundamentally
changing the political landscape well outside the bounds of the court’s jurisdiction.
13
The most
significant aspect of the decision was its effort to separate out a telecommunications service from
the underlying cable service: by its read of the Telecommunications Act, Internet service was a
service that rode aboard this underlying network on a cable system in the same manner that ISP
service was provided over a telephone wire. A significant passage, quoted by activists, read as
follows:

Among its broad reforms, the Telecommunications Act of 1996 enacted a
competitive principle embodied by the dual duties of nondiscrimination and
interconnection. …Together, these provisions mandate a network architecture
that prioritizes consumer choice, demonstrated by vigorous competition among
telecommunications carriers. As applied to the Internet, Portland calls it ‘open
access,’ while AT&T dysphemizes it as ‘forced access.’ Under the
Communications Act, this principle of telecommunications common carriage
governs cable broadband as it does other means of Internet transmission such as
telephone service and DSL, ‘regardless of the facilities used.’ The Internet’s
protocols themselves manifest a related principle called ‘end-to-end’: control lies
at the ends of the network where the users are, leaving a simple network that is
neutral with respect to the data it transmits, like any common carrier. On this role
of the Internet, the codes of the legislator and the programmer agree …
ISPs are themselves users of telecommunications when they lease lines to
transport data on their own networks and beyond on the Internet backbone.
However, in relation to their subscribers, who are the ‘public’ in terms of the
statutory definition of telecommunications service, they provide ‘information
services,’ and therefore are not subject to regulation as telecommunications
carriers. …Like other ISPs, @Home consists of two elements: a pipeline (cable
broadband instead of telephone lines), and the Internet service transmitted
through that pipeline. However, unlike other ISPs, @Home controls all of the
transmitted facilities between its subscribers and the Internet. To the extent
@Home is a conventional ISP, its activities are one of an information service.
However, to the extent that @Home provides its subscribers Internet
transmission over its cable broadband facility, it is providing a

13
Circuit decisions only apply to the region the appellate court’s jurisdiction.
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telecommunications service as defined in the Communications Act (quoted in
Consumer Federation of America, 2000b, pp. 1, 3-4).

All sides declared victory. Erik Sten offered a positive reaction and saw it as vindication:
“We may have lost the battle but won the war,” Erik Sten commented (McCall, 2000). All the
same, two dim realities were sinking in nonetheless: CableFax ranted in a near-hysterical
editorial:

I warned those regulators and their even more zealous supporters that local
authorities might find that they had just stepped in ‘Portland Cement’ [a year
ago]. The 9
th
Circuit Court of Appeals just confirmed that prognostication.
…[Finding that cable broadband provision of Internet service was a
‘telecommunications service,’] local authorities do not have jurisdiction to
require it, regulate it, or prohibit a cable operator from providing it. …Local
authorities have been told, at least in that Circuit, that they simply do not have
legal jurisdiction over cable Internet access. Instead, the local authorities who
had been collecting franchise fees from what they considered a ‘cable service’
now may find that their own overzealous efforts to regulate a nascent technology
have resulted in them losing revenue operators were willingly giving them!
…Meanwhile, some are arguing that since cable has now been defined as a
‘telecommunications service’ it must be regulated as a common carrier.
…Nonsense….[T]he FCC has the discretion to ‘forebear’ [sic] from regulating a
telecommunications service as a common carrier, and [the court] also noted, right
in the decision, that the FCC had already made a finding, in its AT&T/TCI
merger approval, that the public interest did not require such regulation at this
time (Effros, 2000).

Both sides were, effectively, correct. What the court had done was provide a bit of clarity
to definitions contained within the Telecommunications Act: as it turns out, these were
tremendously significant. Because the Congress had decided that the appropriate way to break
down regulation was by technology and not function, yet had in their definitions for certain
functions of the telecommunications network embedded terms that applied to the functions of
cable systems, a new tangle was appearing. Had the Court not ‘found’ that telecommunications
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service being served by cable systems in providing Internet access, one set of rules would have
applied; as it turns out, another now did. The irony was that a finding of a telecommunications
service riding upon a cable service removed jurisdiction of this service from local purview: if the
system was no longer under the rules of a cable system (rules that empowered local franchise
authorities to negotiate with cable companies) then technically localities couldn’t institute open
access conditions: these would be guaranteed by federal law under unbundling rules, to be
rendered specific by FCC fiat. It also meant that the Internet service revenues that passed through
these cable wires no longer were eligible to be considered in the calculation of franchise fees
local cable franchises were required to pay to localities. In winning, local commissions found the
rug swept out from underneath them: it would take a little time for them to realize this. In many
regards, it was too much of a win for consumer advocates, given their strategy.
The Consumer Federation of America laid out a second “Action Plan” based on the
decision (Consumer Federation of America, 2000b). The court case provided a wind at these
advocates’ backs to open the Pandora’s Box of full-fledged Title II treatment of cable broadband,
which would, if selectively applied, require cable companies to interconnect with other parties
(eliminating the open access issue), require access to broadband by persons with disabilities, as
well as opening the door to giving states a say in continuing to regulate non-cable (read: video
provision) services, “regardless of whether they are provided on a common carriage or private
carriage basis” (p. 3). “In a sense,” they argued, “the Ninth Circuit granted exactly what open
access advocates were fighting for. ISPs possess the legal right to nondiscriminatory
interconnection with cable modem networks, which they can exercise through private action. That
right will be useless, however, unless government enforces nondiscriminatory access in
meaningful fashion. This means open access advocates still have their work cut out for them” (p.
1).
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The FCC’s Kennard continued to hem and haw on the issue. The strategy document CFA
prepared quoted him as reminding all that “the FCC has not determined whether high-speed
Internet access over the cable plant is a ‘telecommunications service’” and that “the
categorization of ‘telecommunications’ service does not necessarily mean that service is subject
to all of the common carrier regulations that apply to telephone companies” (p. 2). Further, the
CFA cited a press release from the Chairman announcing the possibility of a proceeding to
“establish a record on marketplace developments” which meant only that “the Chairman is
talking about taking several months to start a proceeding that focuses on the wrong issues” (p. 2).
The Chairman was “already misconstruing the court’s words, claiming ‘that this type of service is
both a ‘telecommunications’ service and an ‘information’ service” (p. 4). “Given its track record
on the issue, and the clear requirement that cable and DSL be treated in similar fashion, the FCC
could decide that it no longer needs to require open access for any advanced telecommunications
services. The United States Telecom Association, the telephone companies’ trade association,
used the Ninth Circuit decision to renew its call to allow high speed Internet access over the
telephone wires to be closed down and run on a proprietary basis” (p. 5).
Action thus needed to remain at the level of state and local levels despite ongoing
ambiguity; the consequences of delay would be dire. CFA called for localities outside the Ninth
Circuit to “continue to press for open access in every manner possible, starting with the
continuation of the effort to exercise cable franchise authority;” court cases elsewhere, such as the
Fourth Circuit, should “be continued” to establish what would hopefully be further support for a
similar position, given this would likely reach the Supreme Court at some point; at the least,
differing rulings would force the FCC to take action. ISPs within the Ninth Circuit should
“immediately seek agreements for nondiscriminatory access and interconnection with cable
modem service providers,” and failing this, they could now seek redress. Time was of the
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essence: “Delaying the process allows cable operators to embed discriminatory hardware and
software more deeply into the network and impose discriminatory business practices on ISPs
desperate for access” (pp. 4-5). Given FCC ‘footdragging,’ “Local governments have been the
key counterbalance against the FCC’s wrongheaded policy on open access. State public utility
commissions are now another potential counterbalance, and their role should be defended” (p. 5).
If the FCC continued to have difficulty discerning how broadband should be viewed in
the marketplace (in the same market as dialup? In a different market?) the Department of Justice
had no such difficulty. It had, in its own analysis, determined that ‘narrowband’ Internet service
did not compete with broadband—which was the analysis that led them to force AT&T-
MediaOne to divest of its holdings in RoadRunner to consummate their merger. Taking an
opportunity to point out how the “public interest mandate” was lagging behind even traditional
antitrust authorities at the FCC, Cooper set the example in a filing with the FCC shortly after the
Ninth Circuit decision (Consumer Federation of America & Consumers Union, 2000) which
supported the allowance of SBC, a regional Bell company, to be permitted to sell long distance
service, having opened its own lines in such a manner that the ‘checklist’ contained in Section
271 of the Communications Act was fulfilled. While seemingly unrelated, this allowed him to
call on the FCC to force AT&T to “file tariffs at the FCC outlining the just, reasonable and
nondiscriminatory” charges it would offer for broadband interconnection—an action supportable
particularly in the Ninth Circuit now that it was found to be operating a telecommunications
service and thus subject to the same regulation as SBC. To twist the knife, he noted that AT&T
had “complained bitterly that [SBC] was not providing nondiscriminatory access to DSL service”
despite its continued operation of “millions of cable lines in Texas” on a closed basis.
A strategy of boosting localities’ own efforts while needling the FCC ran up against new
realities. While the City of Portland decided against appealing the decision further, it now
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realized it would need to recalculate the franchise fees they collected from cable providers for
cable services. As the Cablefax editorial foretold, losing out would be public access facilities due
to the resultant revenue ‘hole;’ one report noted that they had hoped to obtain a ‘slice of fees’
from data services ("Portland drafts," 2000). To add insult to injury, despite Oregon requiring a
telecommunications franchise to provide telephony services, just one day after the Ninth Circuit
decision was issued AT&T launched its @Home service in Portland, interpreting the Circuit
decision as removing local authority altogether. David Olson was incensed at the company he
cast as possessing a “troubling history of taking the law into its own hands” (Estrella, 2000). All
cities were being led to rethink their strategies for similar reasons. In the meantime, with another
appeal pending in the Fourth Circuit of Appeals, the FCC submitted a brief seeking its desire that
the court reach a less expansive conclusion—arguing that the only issue at hand was whether
local authorities had statutory authority to order open access conditions on franchise transfers
("FCC urges court to avoid," 2000).

AOL-Time Warner as ambiguous consolation prize

As the year wound down, the telecommunications bubble deflating fast, Excite@Home
going belly-up midyear, and a new administration (and FCC) in the offing, the local fights for
open access receded as efforts shifted to setting national policy. In Washington, D.C., local
efforts during a franchise transfer there were commenced to consider an access provision, but
overall the sentiment was to wait for the FCC to render a policy itself (Stephens, 2000). In
Minnesota, Governor Jesse Ventura did attempt to revive legislation requiring nondiscriminatory
interconnection for both cable and telecom companies, shifting regulatory authority away from
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localities to the state public utility commission (Estrella & Haugsted, 2000). The overall feeling
was that FCC action would be soon in coming. None of these efforts panned out.
While the AOL-TW transaction was still under debate, the FCC maintained a
noncommittal stance on the matter. The AOL-Time Warner merger was becoming a public issue,
with articles appearing decrying the combination as media consolidation was becoming its own
issue on its own. At an en banc hearing which took place shortly after the Ninth Circuit decision,
Kennard remained bewildered at the notion of open access, even if he seemed more willing to
explore it. Even after the intensity of the struggle of the previous two years, recalling the
‘Socratic’ section of the Staff Report from nearly a year previous, he said, “[O]ne of the
frustrations I have with this debate is that there is not a baseline definition” (Federal
Communications Commission, 2000b, p. 125). Mark Cooper, invited panelist, responded that he
had never directly advocated what the Ninth Circuit found, preferring ‘one sentence’:
“[U]naffiliated Internet service providers shall be allowed to gain access to cable modem systems
on ‘rates, terms and conditions that are no less favorable than’ affiliated ISPs” (p. 125). James
Love of the Consumer Project on Technology, also a panelist, added regarding competing ISPs,
“Give them the right [to access]. Tell them to arbitrate disputes so you don’t have to try and write
rules. We tried to get through this without writing rules by letting private parties have the private
right of action” (p. 127).
As his tenure was coming to an end with the coming elections, Kennard finally issued a
Notice of Inquiry (FCC, 2000), essentially throwing the tough questions in the laps of the next set
of Commissioners. The exhaustive piece, asking how the Commission should classify cable
services, still making such pronouncements as “What is ‘open access’?” and “Is open access a
desirable policy goal” (pp. ¶¶32-33)? It was clear that the deliberate strategy of obfuscation, fear,
uncertainty, and doubt had succeeded by large cable interests. “Industry participants have
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different conceptions of open access,” the FCC declared (FCC, 2000, p. ¶28), describing three
variants that are at pains to render the subject as complex as possible and as far away from
Cooper’s one-sentence description as could be.
Shortly after the Notice was issued, in November 2000, a judge tossed out Broward
County, FL’s ordinance requiring open access, this time arguing that the locality violated
AT&T’s First Amendment rights. The National Association of Telecommunications Officers and
Administrators were performing an about-face as well, telling Multichannel News, “We believe
the FCC should decide this. And we’re going to press our case that [Internet over cable is] a cable
service, delivered over a cable platform.” Such a ‘redefinition’ would reinstitute the full boat of
expanded franchise fees for localities and ensure broadest local authority (T. Hearn & Estrella,
2001). Advocates, in comments to the Commission in response to the Notice, took umbrage with
this Court’s read of the situation.
It is in this context, with a decision about the AOL-Time Warner merger still in the
making, that consumer advocates responded in December to the FCC’s Inquiry. A ‘notice of
inquiry’ is hardly a vehicle for making policy; rather, it is the first step on a longer journey to a
“notice of proposed rulemaking’ which would go through its own commenting period that
advocates felt was already called for. “This long-awaited Inquiry arrives during the throes of a
debate that has proceeded much too long without active Commission involvement. A full
rulemaking proceeding on open access is needed now,” (Consumers Union, Consumer Federation
of America, Center for Media Education, et al., 2000, p. i).
Consumer advocates’ concerns, while couched in language of competition in the
consumer market, had always been at base about the promotion and protection of marginalized
and noncommercial content, and in the end-stages of this initial battle, they were making this
clear. At risk should an open access policy not be instituted were “hundreds of community
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‘Freenets’…[which] act as low-cost ISPs by purchasing connectivity from telephone companies
and providing connections to individuals and social service groups for free or at cost, and
maintain web pages for non-profits” (Consumers Union, Consumer Federation of America,
Center for Media Education, et al., 2000, p. 11). Further,

“Without open access policies, FreeNets are unlikely to obtain high speed
connectivity because FreeNets provide services that the cable industry might well
perceive as directly competitive. In addition, FreeNets are not likely to be
replaced in the commercial marketplace. FreeNets often offer information
services—particularly of local interest—without ‘banner advertising’ and
merchandising offerings. Just as many citizens, especially parents, may prefer
non-commercial radio or television to commercial offerings, they may prefer to
access—or have their children access—local information sources that do not
come bundled with ads providing ‘click through’ access” (Consumers Union,
Consumer Federation of America, Center for Media Education, et al., 2000, p.
11).

These advocates were watching the birth of a new, ‘channelized’ Internet emerging
before their eyes in its early stages. AT&T’s recent efforts, for example, slow users’ upload
speeds to 128 kbps when they had once had the ability to do so at 1 Mbps was worrisome:

“These technologies and features are not, of themselves, contrary to the public
interest. They become so, however, when these choices inherent in those
technologies are foisted upon users without options to go elsewhere. In such a
case, the previously open, competitive, and diverse Internet becomes a limited-
choice medium. Users become more like cable television viewers, hoping that
their cable company will carry their favorite channel, despite the fact that without
a financial link between their cable company and the content provider, such hope
will likely remain futile.” (Consumers Union, Consumer Federation of America,
Center for Media Education, et al., 2000, pp. 9-10).

They reminded the Commission that decisions it made, unlike the restricted purview of
the Department of Justice and the Federal Trade Commission, “must include consideration of
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First Amendment values. Essential to the value of the Internet is the ability of citizens to speak to
one another, to be publishers and broadcasters as well as readers and listeners” (Consumers
Union, Consumer Federation of America, Center for Media Education, et al., 2000, p. ii). Open
access, as argued by these advocates, would “[s]eve First Amendment values—fostering citizens’
ability to speak and be heard—by preserving competition among independent content providers,
including those providing and facilitating non-commercial and civic content;” it would “preserve
the innovation that is the hallmark of the Internet and encourage competition among various
providers of technical high speed services;” and “through competition among providers,” it would
“preserve consumer choice in areas such as niche marketing and filtering objectionable content,”
while “encourag[ing] deployment of competitive facilities to provide high speed Internet access”
(Consumers Union, Consumer Federation of America, Center for Media Education, et al., 2000,
pp. i-ii).
Most significantly, however, while these were reiterations of already long-expressed
points, what was becoming increasingly clear was a knowingly deliberate act of institutional
amnesia on the part of the FCC. Foreshadowing developments to come, the FCC’s Notice of
Inquiry noted with little comment the recent “development of market-based access
initiatives…there appears to be some movement toward allowing access to additional ISPs” (p.
¶36). As evidence, the Commission pointed to the AT&T-MindSpring letter of the previous year.
The Notice also pointed to a “Memorandum of Understanding” that AOL and Time Warner
issued earlier in the year committing to opening ISP access aboard its combined cable platform.
Time Warner in July had issued a news release as well that ISP Juno Online Services would be
the “first unaffiliated ISP to use Time Warner cable systems for the provision of high-speed
Internet access” (p. ¶37). The Commission cited this as evidence of a market ‘opening up’ its
architecture to competition absent the FCC’s prerogatives.
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Consumer commenters reacted with alarm. In the long view, they reminded the
Commission that in light of the past Computer Inquiries proceedings, “the Commission’s current
inaction in the area of cable broadband open access is inconsistent with its historic decisions in
the Computer Inquiry proceeding. While the FCC may believe such inaction simply continues its
“unregulation” of the Internet, we should be clear that non-intervention constitutes instead a
fundamental policy reversal” (Consumers Union, Consumer Federation of America, Center for
Media Education, et al., 2000, p. iii). But even more of concern was the Commission’s own
recent actions being shunted down the memory hole. The consumer advocates were “compelled
to point out that none of the initiatives mentioned are ‘market based.’ Each of these agreements
was adopted specifically in response to a regulatory initiative or inquiry” (Consumers Union,
Consumer Federation of America, Center for Media Education, et al., 2000, p. 22). Recall that the
AT&T/Mindspring letter was the result of discussions initiated by Kennard himself; the
AOL/Time Warner Memorandum of Understanding “was drafted in order to speed regulatory
review of that merger at the FCC; and the recent spate of AOL negotiations are in response to the
Federal Trade Commission’s apparent position that it will not approve the AOL/Time Warner
merger until such agreements, presumably with competition-enhancing terms, are achieved”
(Consumers Union, Consumer Federation of America, Center for Media Education, et al., 2000,
pp. 21-22).
Even these moves to ‘open’ were flawed. These commenters had already long pointed out
the contradictions to the AT&T-Mindspring promises; becoming more clear in the preceding
months was that Time Warner’s own offer, while superior to AT&T’s, remained duplicitous. The
AOL Time Warner commitment had included providing a choice of ISPs and a promise to
negotiate without prejudice with unaffiliated ISPs. Users would not be forced to purchase Internet
access from AOL-TW before purchasing access from another ISP; these ISPs would have direct
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access to their customers; and (unlike AT&T, consumer advocates note) these ISPs would be able
to connect to the AOL-TW network without purchasing ‘transport’ from the conglomerate
(summarized by Consumers Union, Consumer Federation of America, Center for Media
Education, et al., 2000, pp. 25-26). The advocates further noted that the company would, in
addition to promising nondiscrimination over its network with non-partners, that it would not
“prevent the provision of streaming video by unaffiliated ISPs” (Consumers Union, Consumer
Federation of America, Center for Media Education, et al., 2000, p. 26). Consumer advocates
even allowed that “AOL/Time Warner appears to recognize the legitimacy of civic discourse
goals,” committing to “partner[] to promote national, regional or local services in order to
facilitate the ability of consumers to choose among ISPs of different size and scope” and “not
allow[ing] selective service offering of service that ‘redlines’ a portion of an AOL/Time Warner
cable system” (summarized by Consumers Union, Consumer Federation of America, Center for
Media Education, et al., 2000, p. 26).
Yet these turned out to be half-baked promises. AOL-Time Warner insisted on calling
these ‘voluntary’ commitments, the details of implementation were not outlined, and there was no
legal enforcement, thus “mak[ing] them untrustworthy” (Consumers Union, Consumer Federation
of America, Center for Media Education, et al., 2000, pp. 26-27). Worse, a detailed filing by ISP
NorthNet had brought to light what awaited a provider of these services sitting down to undertake
these “voluntary” negotiations (even if required by the FTC). NorthNet noted that the ‘term sheet’
offered them by Time Warner offered usurious conditions to any ISP seeking access to their
network, including “explicitly eschew[ing] any obligation to negotiate in good faith by Time
Warner.” An ISP would be required to disclose proprietary (and sensitive) data about their
operations. They would need to give Time Warner a nonrefundable $50,000 deposit; all costs for
connectivity would total $700,000. An ISP’s ‘start page’ was subject to Time Warner’s approval;
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Time Warner also reserved the right to put its own content ‘above the fold’ “without limitation as
to content, applications, service or functionality.” If privacy policies differed between the
companies, they would need to be brought into alignment. The price of the offered ISP service
needed mutual approval by Time Warner and the ISP. If the ISP sought to offer functionality that
went beyond what Time Warner offered, it required Time Warner’s approval. Time Warner
retained exclusive right to ‘bundle’ its service with others, particularly video services;
additionally, Time Warner would ‘only optimize other ISP’s services for personal computers, but
not for other devices, such as set top boxes.” Among these conditions, Time Warner required a
stunning 75% of revenues gained by the ISP as well as 25 percent of all ancillary revenues
generated by the ISPS, such as advertising, other transactions, premium services and forms of e-
commerce or other fees (summarized by Consumers Union, Consumer Federation of America,
Center for Media Education, et al., 2000, pp. 26-28). Press accounts of such challenging (if not
impossible) negotiations were emerging, particularly regarding the 75% of revenues requirement
(Estrella & Haugsted, 2000). In previous testimony it had been noted that AT&T’s previous
arrangement with Excite@Home was merely 66%. Consumer advocates concluded, “Even under
regulatory duress, cable operators have not demonstrated a willingness to negotiate agreements
with unaffiliated ISPs that serve competitive and First Amendment goals” (Consumers Union,
Consumer Federation of America, Center for Media Education, et al., 2000, p. 28).
The disagreement of the Broward County court with the Ninth Circuit, which gave the
appearance of genuine ambiguity in the law, was the result of a botched understanding of how the
Internet worked: it was clear that working to incumbents’ advantage was the newness of the
technology and the ability to hide technological capabilities behind a particular business model
that precluded such capabilities. The mistakes that the Court made, consumer advocates noted,
were egregious. For one, the court assumed that the cable operators had the same First
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Amendment rights as newspapers, thus giving them a twisted form of ‘editorial control’ over the
content that passed through their wires. That one court could read past precedent this way was
alarming enough, but revealed that the argument still bore utility, and it would appear again and
again in years to come in comments from conduit operators. More embarrassing for the Court was
how it believed the technology itself operated:

For example, the court asserted that users would attribute potentially offensive
speech provided by an alternative ISP to the cable operator, and that all 5,000
ISPs in the country could potentially seek access to the cable operators system….
This miscomprehends how the Internet works or what the ordinance required.
Internet Access is not like a cable channel: some affirmative action on the part of
the user is required to obtain content, including offensive content. .... Given that
the Internet subscriber must affirmatively chose an alternate ISP, and
affirmatively seek objectionable content, it surpasses belief that the subscriber
would then attribute any offensive content to the cable system operator.
Furthermore, the cable operators have consistently maintained that they exercise
no editorial role in limiting a user’s access to content; just the opposite, cable
operators have pledged not to discriminate against any outside content. ... Indeed,
the only other district court to address the “forced speech” argument rejected it
(Consumers Union, Consumer Federation of America, Center for Media
Education, et al., 2000, pp. 7-8).

In January, the FCC issued its approval of the AOL-Time Warner merger. Following
what had been the Federal Trade Commission’s lead, the FCC did allow that it understood that
negotiations with the cable giant for ISP access was challenging, referring to the comments of
several ISPs (FCC, 2001, p. ¶126n357). The Federal Trade Commission required the combined
entity to have access to at least one unaffiliated ISP within 90 days of the beginning of AOL’s
service; that

“AOL Time Warner not interfere with content passed along the bandwidth
contracted for by unaffiliated ISPs, or discriminate on the basis of affiliation in
the transmission of content that AOL Time Warner has contracted to deliver to
subscribers over their cable systems; and (3) that AOL Time Warner market and
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offer AOL’s DSL services in the same manner and at the same retail price in
Time Warner cable areas where affiliated cable-based Internet access service is
available, as in those areas where affiliated cable-based Internet access service is
not available” (FCC, 2001 ¶47, footnotes omitted).

The FCC added conditions that AOL Time Warner would not restrict the ability of ISPs
or customers to reach each other; to allow these ISPs to have control over the “first screen”
without some tithe to the provider; to allow these unaffiliated ISPs to bill customers directly; and
“to the extent AOL Time Warner provides any Quality of Service mechanisms, caching services,
technical support customers services, multicasting capabilities, address management and other
technical functions of the cable system that affect customers’ experience with their ISP,” AOL
would not provide differential access or service based on affiliation (FCC, 2001, p. ¶126). These
ISPs would not be restricted from disclosing their contracts to the FCC. They established binding
enforcement procedures via complaint. Even as the Commission made formal several of the
conditions contained in the “Memorandum of Understanding,” however, it is a far cry to call the
conditions that it instituted “open access;” the Commission itself, with the cover of its Notice of
Inquiry to shield it, pointedly declared (in a footnote) that “In particular, we decline to mandate
‘open access’ to AOL Time Warner’s cable systems or to require that the merged firm divest
itself of Road Runner, as requested by Consumers Union and other commenters” (FCC, 2001
¶126n363).
The AOL-Time Warner combination is certainly the go-to example for many writers for
embarrassing deals run amok, with disastrous consequences, mistakes unseen. The FCC put off
setting national policy as it enjoined the Federal Trade Commission conditions on AOL-Time
Warner as they merged. While this seems a reasonable test-case and a victory (for at least the
emergence of a more widespread ‘commons’ model, as Aufderheide, 2002 notes), arguably the
moment had been decided months before, as the MediaOne transaction came to an end. A huge
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difference in the AOL-Time Warner merger even finding itself with conditions enforced was the
presence of large content concerns as Disney suddenly expressing concern about the new entity,
as Aufderheide notes. The introduction of a victory for “commons” activists, however, was a
subterfuge in a broader sense in two principal ways. For one, enforced was hardly open access in
the sense intended by activists all along. For another, it ultimately would serve not to expand, but
in a perverse way, limit the range of debate about the emergent dominant medium as it arose from
the burst bubble anew.

Conclusion

Between December, 2000 and mid-February, 2001 the NoGatekeepers.org site was
effectively shut down, left with a message reading, “We have come a long way in educating
policymakers and consumers about the importance of preserving the Internet’s qualities of
openness, diversity and consumer choice in the broadband world. But the need for continued
vigilance to ensure open access remains. While this chapter has come to a close, we encourage
you to stay involved.” The page finished with links to the old supporting organizations.
14
Given
the vague connection to AOL, the core organizations behind it largely stopped adding material
much earlier in 2000.
Often left as a side-story or a curiosity, it is key to revisit this opening salvo even as
waiting in the wings a new term would soon be spawned by Lessig’s protégé, Tim Wu. True, it
was an internecine fight between well-heeled factions of capital, but it was crucially the terrain
upon which advocates for the public interest—and a small number of them, to be sure—laid out
the initial case not just for an open access regime but for a vision of what the emergent Web

14
Available at http://web.archive.org/web/20010224141604/http://www.nogatekeepers.org/.
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should look like and who it should serve. Their answers may give us pause. Working from a
particularly guttural and deeply-felt sense of transaction cost economics—it surely is easier to
switch providers of ISP service without changing the medium through which one accessed the
Internet—we end up with mixed outcomes: first, the vision of an “open, competitive, and
democratic” space (as if this space has ever existed anywhere); second is the vision this one takes
on as cargo, an even more sweeping vision of freedom in the Lessigian vein (Streeter, 2011).
We are left with an odd ambivalence. The placement of (weak) open access conditions
upon AOL-Time Warner was surely a hard-fought victory for these players. All the same, it still
did not amount to national policy. It may be tempting to point to AOL’s defection as the last nail
in a national policy’s coffin, but this move was entirely expected by the ISP’s activist colleagues.
They treated this player with mistrust, not fealty. Quite instead, this was Kennard’s doing. While
much of the drive toward ‘multimodal competition’ (via a plan-that-was-no-plan) has been of late
pinned on Kennard’s successor Michael Powell, the irony is that Powell would go far, far further
than Kennard in merely enunciating a vision (even if not bearing the power of enforceability) for
the Internet that laid a firmer groundwork upon which new (and continuing) activists could act in
terms of attempting to tame the worst impulses of the new medium’s gatekeepers. As far as
activists working on structural reform of media are concerned—and these core groups in
Washington certainly qualified throughout the row over open access—this would not be the first
time that a Democratic administration snatched defeat from the jaws of victory from its own
constituents. By mid 1999, open access seemed to be winning the war of ideas. At every step of
the way, Kennard sabotaged the best laid plans of these activists. Powell would close the bear trap
on them.
Several paradoxes emerge. First, while they had been largely written out of the story, one
is struck at the effectiveness of the consumer advocates. They were effective in keeping the debate
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moving forward and gathering new recruits, but they were called (and called themselves)
‘consumer’ groups for a reason, even as the Center for Media Education cast wary eyes on the
hypercommercialist imperatives unfolding online. In no way were any of them questioning the
commercial and private foundations of the Internet itself as they developed, even as they extolled
the virtues of noncommercial ISPs and services. This episode is an example of a pervasive
continuance of dominant logics, as evidenced by their seeming open invitation to FCC en banc
and Congressional hearings: even as egregious amounts of money were poured into these debates,
their embedded liberalism clashed with the FCC’s and certain others’ newer neoliberal vision. In
the FCC’s case, could Kennard have described his vision as laissez faire? Likely not: he would
likely argue that leaving the Internet’s development to the devices of protected new entrants was
its own form of a self-organizing commons of the variety advocates, particularly in late 1999 and
into 2000, were extolling. As far as the advocates went, to the extent they argued ‘competition,’
they were permitted to participate; localities similarly appreciated the message (Sten pushes their
liberal rhetoric even further than they) as at each level of the system, players saw markets as a
solution to market problems. Advocates may have prevented one form of control from taking
over, but the reality is in the end one form of commoditization was traded for another, one
perhaps more insidious.
In a time of tremendous uncertainty, given no player that was involved at this level of the
debate called for a reversal of the commercial operation of the Internet conduit itself, this episode
serves as a clear snapshot in time of logics, justifications, and actions growing organically, with
markets (spoken of as homogeneous, which is part of the problem) serving as handy ways to get
out of having to plan. A “commons” model may have been emerging, but “organization from
chaos” was already alive and well in capitalist-regulatory discourse. We should see the
invisibility of other actors in these debates who may have called for a different vision less as an
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indication of their veracity or ability than their understanding of the rules. Om Malik, whose tale
of the rise and fall of Excite@Home we borrowed, for instance, described the scene at one of San
Francisco’s hearings on open access:

“The whole issue of open access was a political hairball. At a city hall meeting in
San Francisco, Excite@Home folks were lobbying the city to help open the cable
lines more quickly. One of the weirdest things about the meeting was that the
AOL group brought in a bunch of elderly Chinese people wearing hats that said
something about stopping discrimination, but it was really just a ploy to win
support for their side” (Malik, 2003, pp. 153-154).

This could well be a gross misread of the event. ‘Astroturf’ operations were surely in full
swing in all corners, but the moral argument from which these sectors fed was unquestionably the
province of the D.C. consumer advocates. With the dissemination of a particular aspiration even
set aside from the means to attain it—an “open, competitive, democratic” communications
system—fears of discrimination were real for those who caught the argument. Of course, this was
the least of Excite@Home’s problems: “At the meeting, groups of Excite@Home employees
complained that they lived in San Francisco and couldn’t get service from their own company
yet” (Malik, 2003, p. 154). That Malik sees these two elements as incongruous is ironic: the fact
he missed the political story seemingly entirely points exactly to the chosen strategic imperatives
operative by consumer advocates: this invisibility was the price they paid even as a particular
vision of the Net and its possibility seeped out. Perhaps as well, one of the most important
outcomes of these debates were the ‘seeding’ of a new activist ecosystem in Washington: staffers
working for the core DC groups spun out into others. Numerous lawyers emerged from their time
at the Media Access Project under Schwartzman’s tutelage, forming new groups like Public
Knowledge in Washington who would become prominent players.
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All the same, perhaps the biggest paradox is that these groups’ success meant that while
they prevented one form of domination over new communications technologies, they did so by
pushing the whole works further down the hole. Advocates were written out of the story, even as
they were integral to it. From the start, consumer advocates engaged the FCC in a project of scale
building and epistemic challenge: such are the tools available when the battle engaged is not one
of class at all. Advocates’ own arguments were hardly couched in any anticapital language: theirs
was a form of ‘embedded liberalism,’ willing to go along with the infinite regress of
marketization in new communications technologies as long as some escape-hatch existed in case
they didn’t work. The former stance gained them entrance to the debates of the time and kept
them from being disinvited to official gatherings as en banc hearings and the like; the latter
created productive conflict: Kennard may have disagreed with it in principle, but it generated the
lubricant to keep the machine humming, ironically enough. As in finance at the time,
‘modernization’ was in. The FCC sought justification to protect what they saw as nascent
industry, but did so by making deliberate misreads of their own institutional and regulatory
history. They operated in a position of uncertainty reflecting the broader system in which these
gatekeepers resided themselves. Industry argument that any form of requirement would result in
less investment carried the day. This ‘justification’ is revealing of what modes of fallback were
relied upon: there were none. These were untheorized maneuvers, an ongoing learning process by
an FCC unwilling to go beyond asking a couple questions and throwing up its hands. No specific
theory was operative: it was strictly a governmentality that was pervasive. In many regards, this
was one of the last opportunities following the commercialization of the Internet to redefine what
was fast becoming its core logic. The largest issue that remained unaddressed entirely was less
concerns over a particular set of entities’ corporate control than an issue of a policy of corporate
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control of broadband, an argument which mirrors that of Streeter (1996) regarding broadcasting,
here in a new register.

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Chapter 5: Erasure

With the sitting of a new FCC, national policy on the open access was forced via a ruling
in the Fourth Circuit in midyear 2001 that declared, against the Ninth Circuit’s ruling, that federal
law protected cable providers from having to offer a ‘telecommunications service’ as part of their
offering, thus opening their lines to competing ISPs. With appellate Circuit rulings that
conflicted, at this time FCC Chairman Michael Powell gave his staff the task of writing up a draft
of what would become the Cable Modem Order the following year (T. Hearn & Estrella, 2001).
Up against the realities of the bubble pop, the lost potential revenues, the “future of the Internet”
was simply not something localities were willing to put up a fight for.
The resultant document was a Declaratory Order and Notice of Proposed Rulemaking
(FCC, 2002b). In a brash political move, Powell simply skipped any rulemaking process itself in
determining that he would not ‘separate out’ a telecommunications service from cable facilities,
thus leaving cable untouched by Title II of the Telecommunications Act. Yet in the Notice of
Proposed Rulemaking which accompanied the Order, he essentially asked if conditions should be
imposed that looked like open access on cable but justified under the much broader Title I of the
Act. Issued merely one month after the release of another Notice of Proposed Rulemaking
seeking to address the question of how ‘wireline’ (that is, non-cable, telephony-based) services
should be treated when it came to broadband provision, essentially ‘calling it’ for DSL based
technologies as well. It is perhaps one of the great historical accidents that elevated to the
Commission was Michael Copps, who, based on his former experiences as a staffer on Capitol
Hill, took it upon himself to dissent vocally with the decision: “Years ago, when I worked on
Capitol Hill, we used to worry about legislation on an appropriations bill. Down here, I’m
learning that I have to look out for legislation on an NPRM” (Copps, 2002, p. 12). He wasn’t
done there:
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“The Ruling seems uneasy with its own conclusions. Just in case we are wrong,
and access requirements were to apply, they are waived, on the Commission’s
own motion, with neither notice nor comment. And if even that stretch somehow
fails to get the point across, the NPRM adopted today also takes steps to ensure
that these services remain deregulated in the face of any court opinion to the
contrary. Even if cable modem services are found by the courts to be subject to
regulation, the Commission would forbear from enforcing those obligations. So,
in this analysis the majority makes a determination, but just in case it got the
determination wrong, it waives the rule it determined did not apply, and, should
the courts disagree, we simply forbear from enforcing the rule. That’s a far
distance down the road from the simple [Notice of Inquiry] we are working from,
isn’t it? Once the Ruling has reached its desired result to remove these services
from regulatory requirements, we are then told not to worry - the Commission
can build its own regulatory framework under its ancillary jurisdiction.” (Copps,
2002, p. 1).

This NPRM is generally where the story of network neutrality tends to begin. But this
belies its additional significance beyond breaking a particular ‘roadblock’ and opening the
floodgates for what was to come. It could only accomplish this task via the method it chose to
bury “open access” or “multiple ISP access” as an issue: that is, the issue of open access over
cable was handled by specifically not handling it. The consumer advocates’ efforts are scrubbed
from the analysis and history of the proceeding. The Notice of Proposed Rulemaking does not
deny the technological possibility that independent ISPs could be accommodated by cable
providers. it notes that cable companies had already made deals with unaffiliated ISPs.
“Unaffiliated cable operators that formed cooperative agreements with Excite@Home included
Charter, Adelphia, Insight, Cogeco, MidContinent, Videon, and MediaCom” (FCC, 2002b, p.
¶21), it notes; further, “Although many cable operators have traditionally entered into cooperative
agreements with Excite@Home or Road Runner to provide cable modem service, some operators
have chosen from the start to self-provide all of the functions included in their cable modem
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service offering on some, if not all, of their systems” (FCC, 2002b, p. ¶23). Generally smaller
operators, the Commission notes,

“historically contracted with independent ISPs, such as The ISP Channel, to
obtain turn-key service, which entailed not only Internet connectivity and
services such as e-mail and web-hosting, but also equipment, network
management, and in some cases billing and customer service functions that larger
operators normally have self-provided. The ISP Channel and High Speed Access
Corp., however, no longer provide turn key services, and the number of turn key
providers is dwindling. Cable operators using independent ISPs to provide cable
modem service have chosen in many cases to re-brand the service as their own or
to co-brand the service. Charter Communications, for example, has contracted
with EarthLink in several markets to provide cable modem service, and then
rebranded the service as Charter Pipeline” (FCC, 2002b, p. ¶24).

The Notice notes that “Many of the business models described above are currently under
transition,” with “AOL Time Warner, Comcast, and AT&T [embarking] on a multiple-ISP
approach to offering cable-modem service.” It noted Time Warner’s multiple-ISP access regime
“in conjunction with its merger with AOL, and in accordance with conditions imposed on the
merger by the FTC,” and “As of January 2002 AOL Time Warner was offering cable modem
service using both affiliated and unaffiliated ISPs on all systems in its 20 largest divisions with a
choice of three national ISP services,” with more markets offered shortly before the Notice was
released. It pointed as well to the announcement by AT&T to “offer Earthlink high-speed cable
Internet service to its customers in the greater Boston and Seattle markets” (FCC, 2002b, p. ¶26).
The FTC’s requirements were downplayed, and the FCC’s eliminated outright, but certainly the
possibility of providing the service was shown to be quite possible. Other operators “have been
conducting or have announced that they will conduct technical trials to determine how cable
modem service can be offered using multiple ISPs, as AOL Time Warner is now doing, and
AT&T and Comcast propose they will do. Cox and Charter both announced technical trials of
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multiple ISP service. While Cox began a technical trial of multiple ISP-service with AOL and
Earthlink in the third quarter of 2001, Charter has since decided not to pursue a multiple ISP trial”
(FCC, 2002b, p. ¶28).
A multiple-ISP environment requires “a re-thinking of many technical, operational, and
financial issues, including implementation of routing techniques to accommodate multiple ISPs,
Quality of Service, and the compensation, billing, and customer service arrangements between
the cable operator and the ISPs. While much more could be said regarding these issues, it is clear
that they center around the difficulties of trying to modify a service designed to be provisioned by
a single cable modem service provider to allow the provisioning of cable modem service by
multiple service providers” (FCC, 2002b, p. ¶29). The modus operandi became clear: subsume
the activists, and call these decisions the decisions of markets. If this needed to be rendered even
more clearly, later in the year when the FCC gave its blessing (and to which Copps issued another
scathing dissent, but not on open access grounds) to AT&T’s purchase of Comcast, when
advocates cited the conditions on AOL-Time Warner as one of its reasons for instituting similar
requirements on this new entity, Powell’s FCC responded glibly, “Commenters’ reliance on the
AOL-Time Warner Order as authority for the imposition of an ISP access condition is misplaced.
We have never mandated, as a merger condition or in any other context, that any cable operator
provide access to its systems to unaffiliated ISPs. In AOL-Time Warner, we supplemented an
unaffiliated ISP access condition imposed by the FTC by requiring that, if AOL Time Warner
provided such access voluntarily or otherwise, it must do so on nondiscriminatory terms” (FCC,
2002a ¶135).
Independent ISPs would take the FCC to court over this decision as their brethren began
to be decimated by the new environment established under the Powell FCC. The Supreme Court
would ultimately decide the issue in a rancorous decision in 2005 in which the majority found in
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favor of the FCC’s policies, but not on their merits: at issue was the apparent ambiguity in the
Telecommunications Act which called for the agency’s opinion to be granted deference (National
Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005)
("National Cable & Telecommunications Assn. v. Brand X Internet Services,"). In a scathing
dissent, it would be Justice Scalia that lambasted his colleagues’ misread of the situation. This
particular story has been well-told by others. What has been less examined are the undercurrents
swirling around this decision and their own internal politics, how knowledge about the Web
would be created and put to use. This is the purpose of the remainder of the chapter. The creation
of this issue of network neutrality that would take the fore in this debate was thus a fortuitous
discovery in terms of providing activists one more handle that would simultaneously serve to
erase open access struggles completely from the picture yet give broadband politics a crucial shot
in the arm.

Media reform and broadband

“Media reform,” which had a long pedigree leading up to these debates, found a new
resurgence in the early 2000s reacting to Powell’s brash efforts to brush aside media ownership
rules for traditional media which would have resulted in a heavily consolidated media landscape.
In major metropolitan areas one entity would obtain the ability to control the monopoly
newspaper, the monopoly cable company, up to eight radio stations, and two, perhaps three, of
the primary television broadcast outlets. The uproar stirred by MoveOn and upstart Free Press
merely highlighted issues that others across the country had been trumpeting for years, from
groups like Fairness and Accuracy in Media (FAIR), Reclaim the Media, Indymedia and beyond.
An early expression of a newfound energy in this arena could be found in the First Conference for
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Media Reform held in Madison, Wisconsin in late 2003. Dominated by concerns over
commercial journalism, an issue given added urgency given the Bush Administration’s moves to
commence a series of wars, there was yet one panel devoted to questions of emergent broadband
policy, where the topic of open access and network neutrality was broached. It was brand-new at
this point, only recently conceived by Tim Wu, as this chapter will detail. The panel consisted of
Michael Calabrese of the New America Foundation; Andy Schwartzman of Media Access
Project; Gigi Sohn of the also-upstart Public Knowledge; and Jeff Chester of the (now) Center for
Digital Democracy.
As part of a volume which emerged from the conference, Chester and Larson penned a
book chapter (2005) addressing what amounted to a real point of convergence between the
concerns surrounding the hypercommercialization of traditional media and those of open access
activists. He was concerned at this juncture that the online universe

lack[ed] the set-asides and signposts that demarcate the nonprofit sector in the
real world” and “seemed scarcely to distinguish between for-profit and
noncommercial. …We have yet to find a way to map these values onto the virtual
world, where style often triumphs over substance and where marketing and cross-
promotion often exert the same tyranny-of-the-majority pressure on new media
that Nielsen ratings and box-office receipts exert on the old (p. 186).

McChesney, in taking in his own view of the landscape during the late 1990s, was already seeing
the same media giants gaining similar prominence in the online world; in answer to the question,
‘Will the Internet set us free?’ his answer was a resounding no, unless action was taken (R. W.
McChesney, 1999). Here were the same concerns, cast anew. “Especially as the Web grows
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increasingly commercialized (and increasingly becomes the domain of the media giants), the
digital incarnation of the ‘civic sector’—the loose collection of organizations and projects, online
and off, that encompass democratic values, social services, educational opportunities, and cultural
traditions--becomes all-the-more important” (Jeff Chester & Larson, 2005, p. 187). With the
continued uptake of broadband, “there will be any number of efforts to exploit the commercial
potential of the high-speed Internet. Our task is to ensure that broadband serves as effectively as it
sells, fostering two-way, interactive applications” (p. 198). Crucially, this was not about simply
making such tools available. “By working together at the local level, assessing the broadband
infrastructure for its potential to serve the public interest, and building new alliances to ensure
such service, we have the opportunity to develop the local online resources that will contribute to
a larger information commons” (p. 198).
The crucial intervention that Chester is making is in asking us to think about the nature of
the commons-resources online that we are developing and the ends to which they will be put.
Even if these resources are created to his satisfaction, he admits concern about finding them:
“This is the crucial process of discovery that is likely to become even more perplexing in a highly
commercialized broadband environment that favors big business over small, e-commerce over e-
democracy, and public relations over public service” (p. 199). Would the answer to these
concerns “be merely a collection of laudable URLs, or can it become something more dynamic
and useful, drawing together the shared expertise of the nonprofit sector, while addressing local
issues as well” (p. 198)? Can we “ensure, even as we make progress in bridging the Digital
Divide that separates the haves from the have-nots, that we also overcome a new range of ‘digital
divisions’ separating the haves from the have-mores, placing premium services (including such
increasingly vital services as streaming media and video conferencing) beyond the means of
community and other nonprofit organizations” (pp. 198-199)? Would the information commons
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“be truly inclusive, featuring not only the well recognized riches of nonprofit culture, but also
information and services addressing the needs of those with low incomes, limited literacy or
English skills, or one or more disabilities” (p. 199)? The answers to these questions required not
just apt policy but “a more organized, coordinated movement, built around the theme of an
electronic commons” (p. 199).
It is important to keep these views in mind as we move forward from Powell’s
commencement of the process of epistemological forgetting open access would undergo, a
process he inherited from Kennard. The literature bifurcates, playing a significant part in
preparing the ground for the activism that would follow: if open access was the closest we have
come in the United States (post the Telecom Act) to establishing a model of broadband as a
structurally-separated regime, for good or for ill, then the emergence of ‘network neutrality’
would free up forces to utilize a new tack to quash any notion of structural separation for good.
This needed to be not just forgotten but stamped out in a particular set of terms. Crucially, this
needed to be reframed not in any particular sense of antitrust, but one in particular, of long
vintage: the thought-collective identified by Plehwe and Mirowski comes roaring back to the fore
in unexpected ways. Now these efforts were about to pay off, big time: notably, less in terms of
the specific arguments, but in terms of poisoning the well for particular forms of argument—to
lay claim to what was ‘reasoned’ debate versus ‘unreasoned’ debate. The appropriate frame
would permit or prevent certain players from appearing at the bargaining table in Washington at a
pivotal moment when broader public input and attention to issues surrounding the FCC was about
to spike.
What followed was evidence not so much of malfeasance than it was the remarkable
happenstance of a long-term effort bearing fruit yet somehow meeting its own crisis. The
opportunity of telecommunications and cable providers to shape a new economic market—the
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spectrum market—now turned up again, as the future of the broadband Internet would be taken
up in an equally urgent register. Given increasing pressure and attention to the issue that Powell
provoked via his brash moves, the strategies that had proven so successful in the past could now
be called upon again. Telecommunications companies, forever opportunistic, now seeing their
cable brethren enjoying newfound control over their conduit, were able to concentrate their own
efforts to close down their own wires. Powell’s definitive shutting-down of local-level and state-
level debates meant, too, that these new efforts could be centralized in Washington, DC. Granted,
dominant broadband interests would do their part in the states to prevent the emergence of
publicly-supplied counterparts (or even public-private partnerships) that might resuscitate the
corpse of open access. This is an effort that continues. Lurking in the background were the
interests of content providers (while, perhaps paradoxically, themselves the pre-eminent entities
Web-users saw in the foreground) as well as emergent advertising networks who were seeking to
shape the commercial Internet to their ends.
It is precisely this reason that the virtual open-faucet of literature that would develop
surrounding the issue of network neutrality cannot be viewed by any stretch as providing
something akin to “objective knowledge” about the operation of broadband technology. There are
efforts to understand markets, but this is to miss the broad labor it performs. Read as event, the
debate itself becomes about the instillation of a particular overarching frame. This is something
quite aside from any form of conspiracy: this, simply, is the return of an overarching logic that for
a brief time had managed to remain heterogeneous returned to a merely diverse field of action.

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Farrell and Weiser set the tone

Perhaps one of the most important and most-cited pieces to develop at this time is a
broader theoretical piece by Joseph Farrell and Philip J. Weiser entitled, “Modularity, vertical
integration, and open access policies: Towards a convergence of antitrust and regulation in the
broadband age” (2003). Farrell and Weiser perform invaluable labor for both Powell and for
incumbents without even realizing it: for it were they who can rightly boast that they were able to
articulate the ad-hoc arguments for open access presented by consumer advocates to the
neoliberal thought collective for good. The challenge for regulators, as they frame it, “will be
whether and how to integrate antitrust policy and telecommunications regulation into a coherent
whole” (Farrell & Weiser, 2003, p. 86). This threading-the-needle would be turned from a think-
piece into a full fledged weapon, against the authors’ wishes, over the coming years.
The article interrogates under what circumstances a regulator should worry when one
service decides to move into and potentially monopolize a ‘vertical’ service: in the case of
broadband, when a conduit provider decides to supply the ISP service which rides upon it, or
even higher in the layer stack, the applications or content which utilize such services. The
question ultimately posed is: when would it make sense for the operator of that line to foreclose
or try to monopolize the services provided by those ISPs or by content providers that used their
wires? “The question for regulators therefore is not whether modularity [structurally separating
these goods, or requiring open access] is good—it often is—but whether modularity is likely to be
good even when it will not emerge (or survive) spontaneously, as it often will when it is most
valuable to customers” (Farrell & Weiser, 2003, p. 97). Lurking in the background here is the
ghost of Ronald Coase, whose theory of the firm augurs these later arguments. Farell and Weiser
commence their thinking with this:

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Analyzing a firm’s choice of vertical structures is a focus of ‘new institutional
economics’ (“NIE”). Building on the insights of Nobel Laureate Ronald Coase,
NIE ‘seeks to extend and enrich understanding of the microanalytic details of
business behavior and the industry settings that shape firm conduct.’ Usefully, if
tautologically, NIE suggests that firms will vertically integrate or depart from
arm’s-length market dealing when such arm’s length dealing would be more
costly (Farrell & Weiser, 2003, pp. 99-100).

Farrell and Weiser introduce the notion of “internalization of complementary
externalities,” which informs virtually every further effort from an antitrust perspective on the
subject of open access or network neutrality:

If a monopoly platform provider chooses to stick to its core platform business, it
would prefer that applications—the complements to its product—be cheaply,
innovatingly, and efficiently supplied. Thus, in choosing how to license interface
information, certify complementors, and otherwise deal with developers, such a
firm has a clear incentive to choose the pattern that will best provide it or its
customers with applications. That is, a firm will internalize complementary
efficiencies arising from applications created by others (Farrell & Weiser, 2003,
p. 101).

The principle maintains that in most situations, the owner of the platform is unable to
increase her profits by monopolizing markets that need the platform—it’s cheaper and likely
more (economically) efficient to have those supplied by others. “To the contrary,” Farrell and
Weiser hypothesize, “ICE claims that a platform monopolist has an incentive to innovate and
push for improvements in its system—including better applications—in order to profit from a
more valuable platform” (Farrell & Weiser, 2003, p. 103). This is but a stronger version of the
“one monopoly profit” theory developed by Richard Posner and Robert Bork: that is, it should, in
theory, make no sense for a network provider to wish to monopolize applications and content
markets on the reasoning that a platform monopolist will protect an efficient market for the use of
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its services; it can extract no more monopoly profits by monopolizing such complementary
markets than by charging more dearly for access to its platform alone. ICE goes further, however:

“[It stresses] the broader principle that the platform monopolist gains from an
efficient applications market—whether that be unbridled competition, integration
without independents, licensing of a limited set of independents, or some attempt
to combine these or other structures. The ‘one monopoly profit’ label fails to
suggest this broader point. In sum, ICE better conveys the claim that the platform
monopolist has an incentive to be a good steward of the applications sector for its
platform and thus better captures the argument for laissez-faire vertical policies”
(Farrell & Weiser, 2003, p. 104).

The authors are not unequivocal: this principle is particular and they are able to concoct
several exceptions to this seeming rule. For one, if the platform is subject to some form of price
regulation but the applications market is not, there could be an incentive for the platform to
discriminate, since it cannot maximize its profit from platform provision alone. For another,
seeking gains via price discrimination might provoke a platform provider to discriminate. If the
complement (say, VoIP) threatens the primary monopoly (phone service) ICE may be broached.
Independent innovators and gatekeepers may simply fail to reach agreement for access.
“Incompetent incumbents” may not see their own interests reflected in maintenance of a vibrant
complementary market, and may need to be ‘educated.’ Fear of regulation might actually spook a
platform provider into closing down its platform to complements for fear that the mere option of a
‘closed’ strategy may be foreclosed once the results of an open platform are known. Finally, if a
firm thinks that opening its platform “will increase its regulatory duties elsewhere” it would likely
not open it; the authors think here to video transmission over cable wires by independents that
could potentially require it to open itself up to other video providers. Finally, if the complement
can be valuable without the platform, then the platform may try to monopolize the complement.
In their words: “In reality…an application for one platform — say, broadband transport—may
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also be useful for another—say, narrowband transport—and this may lead the broadband
transport provider to try to control the applications market” (Farrell & Weiser, 2003, p. 119). In
short, ICE needed largely to be tempered by real-world conditions.
Several implications followed for regulators. An authority would need to determine
“whether an exception to ICE exists, and, if this seems likely, how well the regulator can address
the competitive harms that might result” (Farrell & Weiser, 2003, p. 125). The regulator thus
needs to consider how easy or difficult it would be to diagnose an exception to ICE’s occurrence.
A regulator might assume that ICE holds in the abstract and that if a situation arises in which it
does not, the regulator can assume it would be easy to recognize and diagnose. Alternatively, a
regulator may be pessimistic that it would be so simple to diagnose and recognize and exception
to the principle, and Farrell and Weiser determine that this may be more often the case: “Such
pessimism is hardly unreasonable, since some of the exceptions sketched above might be
genuinely widespread, and yet might be colorably asserted even where they do not really arise”
(Farrell & Weiser, 2003, p. 127).
One response to this mindset would be to demand modularity or a structural separation
regime outright as a result. An opposite response would be to assume simply that ICE always
applies. “Some Chicago scholars,” they note,

appear to trust ICE more than they trust imperfect regulators or courts to
diagnose its exceptions. Open architecture advocates, such as Lawrence Lessig,
appear to trust the history and future prospects of successful innovation through
modularity more than they trust either ICE or regulators’ ability to diagnose its
exceptions (Farrell & Weiser, 2003, p. 127).

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The authors’ own take is ambivalent:

“In developing its regulatory strategy for new environments such as broadband
where price regulation is absent, the FCC should define more clearly when to
restrict a firm’s conduct — for instance, only after exclusionary conduct is
demonstrated, where it seems probable, or where it would do the most harm.
…[T]he FCC has an opportunity to adopt a coherent approach to information
platform regulation that takes account of ICE and would facilitate convergence
between antitrust and regulatory policy”(Farrell & Weiser, 2003, p. 134).

Farrell and Weiser themselves maintained this cautious stance going forward. In 2003,
the Progress and Freedom Foundation held its own conference on the questions of network
neutrality and open access. When the proceedings were updated and published in 2006, Farrell
continued to urge caution even as his was a voice lost in an increasing cacophony, urging,

Contrary to the claims of some opponents of open access regulation, I believe
that broadband providers are likely to depart from modularity if allowed to do so.
But this in itself does not show that regulation is desirable; such departures can
have both good and bad consequences. Contrary to the tone of the debate (on
both sides), the analytics are difficult and unsettled. Therefore I argue for treating
this as a decision under severe uncertainty; but this does not simply mean a
philosophical choice between presumptions or styles (Farrell, 2006, pp. 195-196,
my emphasis).

If this isn’t enough, he closes his piece with,

On this difficult subject, participants on both sides seem miraculously confident
in their conflicting positions. I urge the FCC to shun such confidence; hence the
conspicuously inconclusive tone of this paper. There are rational responses to
uncertainty other than deciding based on philosophy or ideology. And ICE is too
thin to rely on arguing simply that customers value modularity so firms will
preserve it (Farrell, 2006, p. 211).

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This conference’s attendees largely sang ICE applicability’s high praises. The one voice
of dissent was the presence of Mark Cooper, but should the reader be unclear about the
conveners’ opinion, the editors lead off the volume with, “With all due respect to the virtues of
doubts, in our view, the arguments against a Net Neutrality mandate are substantially stronger
than those on the other side. …[A]fter perusing the essays contained in this book, even if he or
she still harbors some of the doubts that lead Joe Farrell to adopt a ‘consciously inconclusive
tone,’ the reader surely will be in a much better position to make up his or her own mind in the
important debate about Net Neutrality” (May & Lenard, 2006, p. xii).
As the literature bifurcated, this ‘be reasonable’ stance itself possessed its own utility in
the broader debate surrounding network neutrality: it served, at least at the outset, to define a
‘middle ground’ that was, from the point of view of early 2003’s media reformers, no middle
ground at all. The game was commenced with the goalposts already shunted down the field
apace: for the value to cable and telecom interests lie not in its ‘middle-of-the-roadness’ but
necessarily in its reasonableness as a frame through which to view the conflict at hand. Best of
all, this perspective didn’t cost them a dime. This was a victory in itself and would be the thing
against which advocates for the public interest in this struggle would need to contend. Tim Wu
would take up the invitation and run with it.

Wu sketches out net neutrality

Lessig protégé Tim Wu’s sketch of ‘network neutrality’ (2003) entered the debate at a
pivotal moment: as FCC Chairman Michael Powell was attempting to shut down the cable open
access debate by fiat. Extensively debated, often referenced in oblique ways as if Wu’s objectives
and the citer’s are shared, it is worth sketching out his broad premise, as it both responds to,
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builds upon, and has a radical effect upon the broader debate. For all the hue and cry of it, it is
not, by any stretch, an argument based on any theory of democracy or self-governance like what
the consumer advocates which preceded him had on offer. It is its own form of forgetting of the
open access debates, both a response to and a horizontal side-step away from Farrell and Weiser’s
‘internalization of complementary externalities’ argument.
The basis of Wu’s argument stemmed from the questions that regulators would be
expected to face concerning the “conflicts between the private interests of broadband providers
and the public’s interest in a competitive innovation environment centered on the Internet” (p.
141). What is “attractive” about a neutral network—”that is, an Internet that does not favor one
application (say, the world wide web), over others (say, email)”—must, in his terms, be
understood as “a concrete expression of a system of belief about innovation, one that has gained
significant popularity over [the] last two decades. …Here we can refer to it generally as the
evolutionary model” (p. 145). Pointing to Lessig’s previous accounts as a particular brand of
example of this mode of thought, Wu argues that “adherents view the innovation process as a
survival-of-the-fittest competition among developers of new technologies” (p. 146).
For Wu, network neutrality is not a policy; it is more accurately described as a state:
“Network neutrality, as shorthand for a system of belief about innovation policy, is the end, while
open access and broadband discrimination are the means. … A direct analysis premised to the
normative principle of network neutrality may provide a better means to discuss the harm in
question” (pp. 144, emphasis mine). This subtle distinction is important. In place of the structural
separation regimes (or, on a lighter scale, the structural-separation ‘lite’ open access regimes
sought by advocates) is a new vocabulary based on long-defined old terms. Wu is desirous to
recast the debate in terms of familiar concepts in telecommunications law, such as discrimination
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and common carriage, put to the normative end he seeks. In this, he is of a piece with Farrell and
Weiser’s mission.
The need for such a call is that Wu fears that the results sought by consumer advocates
would not be wrought via open access regimes. “The preferable framework for ensuring network
neutrality, I argue, forgoes structural remedies [that is, strict ‘open access’ or ‘structural
separation’ regimes] for a direct scrutiny of broadband discrimination. …The basic principle
behind a network anti-discrimination regime is to give users the right to use non-harmful network
attachments or applications, and give innovators the corresponding freedom to supply them” (p.
143). Competition amongst ISPs themselves, he fears, “does not necessarily mean that broadband
operators will simply retreat to acting as passive carriers in the last mile. …Hence, open-access
does not end the debate over whether broadband operators are capable of engaging in undesirable
behavior from the perspective of the public network” (p. 150). Thus, “we might do better to
address questions of network neutrality directly, through the remedial concept ‘broadband
discrimination,’ rather than through structural solutions like open-access” (p. 150), sussing out
what forms of discrimination are desirable from those which are not. He accepts, like Farrell and
Weiser and other partisans of the open access debates, that there likely are ‘efficiencies’ to having
the owner of a conduit also serve as the ISP for users; managing the network, dealing with
congestion “and other legitimate goals, such as price discrimination” are reasonable. He also
notes that given ‘best efforts’ service, in a bandwidth-scarce world, time sensitive applications are
impaired by virtue of this ‘best efforts’ regime, and thus there could be some desirable ways in
which prioritization may be performed. What is feared is the manner in which such duties are
undertaken: whether particular applications are banned “which are likely to distort the market and
the future of application development” (p. 143).
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Advocates for network neutrality over the coming years would disagree over this point;
but this was not what stirred the intense debate. What gave this article such power was its
concrete proposal, which Wu submitted to the FCC as part of Powell’s 2002 Declaratory Order
and Notice of Proposed Rulemaking (Timothy Wu & Lessig, 2003). In lieu of simpler open
access proposals, network neutrality as a principle “provide[s] a balance: to forbid broadband
operators, absent a showing of harm, from restricting what users do with their Internet
connection, while giving the operator general freedom to manage bandwidth consumption and
other matters of local concern” (Tim Wu, 2003, pp. 167-168). Operators should be permitted to
police what they own while end-users should be able to select for themselves how and what to
use the Internet “in ways which are privately beneficial without being publicly detrimental.”
This was effectively accomplished by limiting what tools operators could use to manage
their networks to “layer 2” of the layer stack, the “data link” layer. Recall that this is one layer
beneath the “IP” layer: operators would not be permitted to discriminate against certain traffic
based on ultimate packet destination or packet contents (see the Appendix for a fuller
explanation). The principal ‘work’ done at this layer is translating IP addresses into individual
machines’ ‘machine access code’ (MAC) addresses, a far blunter instrument for control than the
more powerful application-specific processes that could be discerned at the IP or TCP layer. “[A]
carrier concerned about bandwidth consumption would need to invest in policing bandwidth
usage, not blocking individual applications. Users interested in [for example] a better gaming
experience would then need to buy more bandwidth—not permission to use a given application”
(p. 171). In contrast, had broadband providers been allowed to block gaming applications as
opposed to simply monitoring bandwidth usage,

“this gives a market advantage to competing applications that have not been
blocked. But if broadband carriers only police bandwidth, the result is an even-
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playing field. It may be that the expense of more bandwidth leads people to
choose different ways to spend their money. But if so, that represents a market
choice, not a choice dictated by the filtering policy of the broadband carrier” (p.
172).

Such a rule puts control of network use—in terms of what kinds of blocks might be
desired by parents, for instance—in the hands of end-users without the network operator having a
veto. This is the principle as understood by activists for the issue. However, as important as this
principle is the purpose to which a notion of network neutrality is to be put and what Wu takes as
his foundation. “The promotion of network neutrality,” Wu says,

“is no different than the challenge of promoting fair evolutionary competition in
any privately owned environment, whether a telephone network, operating
system, or even a retail store. Government regulation in such contexts invariably
tries to help ensure that the short-term interests of the owner do not prevent the
best products or applications becoming available to end-users. The same interest
animates the promotion of network neutrality: preserving a Darwinian
competition among every conceivable use of the Internet so that only the best
survive” (pp. 142, my emphasis).

This view has great consequences for the epistemic battles that will unfold. It is one thing
to call open access rules insufficient; it is another to do so on these terms. Streeter’s romanticism
comes into full view, but in this instance, the language in which it is expressed was long a part of
the neoliberal project, understood as the outgrowth of a dispersed thought-collective. It is of a
piece with the times, hardly counter to it.
This article, and proposal, sat at an in-between point between the continued unfolding of
a literature that was still grappling with the concerns of open-access advocates and others that
dealt with the politics and economics of nondiscriminatory interconnection of telephony. In
seemingly finding a niche that sat uncomfortably in-between such discourses, it served a number
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of important functions, particularly as far as the longtime advocates of open access were
concerned. On the one hand, it offered these advocates a new foothold in their continuing efforts
to shape the future rapidly converging broadband networks. Given the Federal Communications
Commission had skirted the effort to structurally separate networks from their conduit owners
(and was continuing to defend its efforts to do so), and given, too, that the debates had effectively
been removed from local and state levels, here was an opportunity to push a new agenda at the
FCC and beyond on possibly more favorable ground. Such a vehicle was becoming of increasing
importance as open access was looking like a regulatory dead-end, particularly under the Powell
FCC. It was a stopgap solution, in other words, even as Wu’s concerns rang true to these
advocates.
In its suppositions, however, Wu had effectively built a bridge between the arguments of
consumer advocates and the longstanding descendants of the neoliberal project. The issue of
network neutrality proposed by Wu was just the tip of the iceberg. It was because of the
epistemological (yet material) freight that his proposal used to buttress itself that caused the
debate to get out of hand. In lieu of any argument in favor of democracy or free speech, these
concepts were considered subsumed in a theory of evolutionary survival-of-the-fittest competition
in the broadband sphere. An online theory of democracy does not seek one survivor; it seeks
numerous survivors. Yet, the notion of the Internet as a calculative engine that would enable
markets to ferret out the best and eliminate the worst threw the debate into territory comfortably
defended by microeconomists, by transaction-costs theory, and by antitrust lawyers combining
their trade with trade economics. These quickly were established as the norm of debate, and in
order for proponents to be taken seriously, even as papers authored by proponents won accolades
in the realm of academic conferences on communication, these played little role in debates in
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Washington where the terms of debate were expected to be entirely played out in the realm of
microeconomic theory of consumer surplus, producer surplus, and beyond.
As a result, in perverse ways, it also served the needs of telecommunications and cable
opponents of open access regimes. For one, with the move away from any possibility of a
structural separation framework to one that necessitated a monitoring of discriminatory activity
aboard every local network—something nearly impossible to obtain—they stood to gain much on
a commercial level in keeping the debate from ever reapproaching the question of structural
separation of service from conduit. The now dominant Chicago School of antitrust had a long
history of mistrust of regulators’ abilities to monitor such a happenstance. The network neutrality
debate opened the field to a new set of problematics and avenues on ironically friendlier ground
for large broadband providers. Mirowski and Nik-Khah cackle: having learned the effectivity of
utilizing the ready expertise of economists enlisted as consultants to the FCC in the construction
of spectrum markets, this strategy would come back into force, in force. It had the added benefit
that any move away from structural regulation suddenly looked like content regulation,
something anathema in ordinary United States common discourse.

Stepping into the trap

On an epistemic level, the most nuanced and substantive replies to Wu came from a
series of three papers authored by Christopher Yoo (2004, 2005, 2006) that sought to challenge
any need for either a structural separation regime or network neutrality regime at any level,
drawing upon multiple strains of microeconomic theory and antitrust analysis. Yoo is the perfect
candidate to bring these viewpoints: he was self-selecting, already active in and an expert on
antitrust issues and its history. He takes Wu’s bait of an evolutionary foundation—recall, the
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favorite metaphor of the neoliberal thought collective—and commenced to do grievous harm to
the consumer advocates’ cause, hoisting it on its own petard with their newfound epistemic
connection. Wu had done the principal labor of creating the bridge.
The tack to recast the debate entirely as one of competition policy was the most obvious
one to pursue. Yoo decides to write off any debate from the past which might construe otherwise.
Ignoring anything outside the market relation, he notes, “Since network neutrality proponents
defend their proposals almost exclusively in terms of the economic benefits of innovation, this
Article discusses the issues solely in economic terms. I therefore set aside for another day any
discussion of noneconomic issues, such as network neutrality’s implications for democratic
deliberation or the First Amendment” (Yoo, 2006, p. 1851n1813). That day, to my knowledge,
has not yet come. So right off he dives into redefining the issue for these advocates:

“The question posed by the debate over network neutrality is not whether
consumers benefit from standardization; they clearly do. To the extent that is
true, there is no need to mandate network neutrality, since the benefits to
consumers from standardization should be reflected in market outcomes. The real
issue posed by the network neutrality debate is whether regulators should step in
and impose standardization in those situations where the market exhibits a
preference for differentiation. The fact that the structure of the broadband
industry makes it unlikely that any network owner will be able to use
nonstandardization to harm competition indicates that such intervention is
unwarranted. In addition, by preventing last-mile providers from tailoring their
networks to pursue alternative strategies, barring network diversity threatens to
make matters worse.” (Yoo, 2004, p. 29).

There is a constant, nuanced opinion by Yoo across his articles which runs as follows: he
supports a policy of “network diversity,” which might be seen as the reflection of network
neutrality: but he insists it is not. “[N]etwork diversity is not the mirror image of network
neutrality, in that it does not call for the imposition of any mandatory obligations. Rather,
network diversity adopts the more modest position that regards regulatory forbearance as the
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appropriate course of action when confronted with ambiguity” (Yoo, 2005, p. 12). Shifting the
debate away from concerns of hypercommercialism or democratic discourse, it becomes a story
exclusively about rollout of broadband writ large.
The keystone to the consumer advocates’ case regarding open access was that cable
broadband providers were doing exactly the same thing as DSL providers in simply moving
information from ‘upstream’ Internet providers to end-users and vice versa; the case that cable
companies were making, and that Powell made in the 2002 Declaratory Order and Notice of
Proposed Rulemaking, was that cable Internet provision wrapped the two aspects of service so
closely together that they were inseparable. The Supreme Court had agreed with the FCC, if not
on the merits. But at the time of Yoo’s initial forays, this was still in contention. In his own
examination of cable broadband technology, Yoo notes that since providers maintain packet-
switched networks themselves for traffic that is separated from other traffic, it is unsurprising that
they would wish to operate and provide their own ISP service. Wu agrees. Yoo looks at the
manner in which AOL-Time Warner was handling unaffiliated ISP traffic and finds that it

“exits the headend via AOL-Time Warner’s backbone and is handed off to the
unaffiliated ISP at some external location. It is hard to see how consumers benefit
from such arrangements, given that they necessarily use the same equipment and
thus provide the same speed, services, and access to content regardless of the
identity of their nominal ISP….The fact that these unaffiliated ISPs have found it
more economical to share AOL Time Warner’s existing ISP facilities rather than
build their own strongly suggests that integrating ISP and last-mile operations
does in fact yield real efficiencies.” (Yoo, 2004, pp. 56, citations omitted).

Under such an access regime, rather than break up monopolies, Yoo notes that the
common result is just that the bottleneck resource is shared—thus activists were focusing their
energies on the wrong policy concern. They were, for him, seeking to buttress an already
competitive market for content and applications. What needed increased competition was not this
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but rather last-mile facilities themselves. “The central focus of broadband policy should be on
how best to foster competition in the last mile. …Viewing the issues in this manner reveals how
the major network neutrality proposals are focusing on the wrong policy problem. By directing
their efforts towards encouraging and preserving competition among ISPs and content/application
providers, they concentrate their attention on the segments of the industry that are already the
most competitive and the least protected by entry barriers” (Yoo, 2004, p. 59).
In making his case that consumer advocates were focusing on the wrong problem—that
is, not addressing concentration of last mile conduits—he invites his reader on a revealing
thought-experiment. While at the point of purchase markets for broadband are heavily
concentrated by Department of Justice HHI guidelines, and he acknowledges this, he asks us to
imagine that “every last-mile provider were required to sell their proprietary interests in ISPs,
application providers, and content providers.” Having done so, he argues, “Such a change would
not affect the economic relationship between end users and last-mile providers; end users seeking
to purchase last-mile services would still face a de facto duopoly even if the broadband industry
were completely vertically disintegrated” (p. 52). That means that the net effect of open access
proposals is effectively in the “upstream market in which last-mile providers meet ISPs and
providers of Internet content and applications that [must represent] the true target of network
neutrality proposals.” As such,

“This market is properly regarded as national in scope. Major web-based
providers, such as Amazon.com or eBay, are focused more on the total customers
they are able to reach nationwide than they are on their ability to reach customers
located in any specific metropolitan area. Their inability to reach certain
customers is of no greater concern, however, than the inability of manufacturers
of particular brands of cars, shoes, or other conventional goods to gain access to
all parts of the country. Being cut off from certain distribution channels should
not cause economic problems, so long as those manufacturers are able to obtain
access to a sufficient number of customers located elsewhere. The proper
question is thus not whether the broadband transport provider wields oligopoly
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power over broadband users in any particular city, but rather whether that
provider has market power in the national market for obtaining broadband
content” (p. 52).

The new emphasis is crucial. Yoo’s shift to the national perspective enables him to
suggest that users should not fear: they should expect to gain access to the commercial enclaves
they desire, as some provider’s policy to restrict access (or prioritize others) should not affect
their ability to survive at the national level. Given concentration indices and market shares of
broadband providers taken at a national level were nowhere near as concentrated as those at local
levels, he believes that it would be impossible for the likes of eBay or other content providers to
be forced out of business. Not everyone would necessarily gain access to them, but given the
objective of assumed national reach, there was little to worry about.
Mandating open access or network neutrality, Yoo argues, essentially foreclosed options
for network operators to provide prioritization services that could in theory, provide a different
basis for a procompetitive outcome. Certain forms of content that needed and could take
advantage of paid prioritization aboard broadband networks could foment new content and
applications players. In Yoo’s vision, different last-mile technologies or overbuilders, driven by
the possibility of supracompetitive profits to provide specific prioritization services (or other
varieties of services yet unthought) would, also in theory, induce rollout of these several
technologies. That is, he advocates waiting for ‘natural’ market forces to take advantage of
theoretically-latent desires for differentiated services rather than mandating any kind of access
regime to a plain-vanilla best-efforts service systemwide. Open access rules and network
neutrality conditions would stymie such rollout in his view by decreasing incentives to invest. But
should anyone worry about the market power of last-mile facilities at the time of writing, citing
FCC statistics (themselves, as we have seen, still collected in the loosest possible manner when it
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come to access to such resources at the point of purchase as opposed to nationally) such
competition was right around the corner, if not ferocious already. An emphasis on ‘network
diversity’ takes as given that new technologies, each supplying their own ‘pipe’ to the end-user,
were taking hold already and pervasively. Thus, in reality, ‘network diversity’ is at core little
more than a continuation of Kennard’s ‘do nothing’ policy combined with support for Powell’s
grant of additional power to conduit owners.

Brandeisian populism and economic efficiency

The broadest task in framing debate in a desirable sense was accomplished in his second
foray into the topic. At this point he was now consulting on these issues for the National Cable
and Telecommunications Association. The Supreme Court had supported the Powell position on
open access, and thus the writing was on the wall for that issue while network neutrality remained
a threat. He provides here a rebuttal to noneconomic justifications for network neutrality while
sidestepping First Amendment and free expression concerns. Such justifications for him are
hardly “incoherent,” but “such a theory must provide a basis for quantifying the noneconomic
benefits and for determining when those benefits justify the economic costs” (Yoo, 2005, p. 54).
The “Populist” Brandeisian pluralist view of antitrust, he argues

“embraced a noneconomic vision of competition policy that protected small
players in order to promote democratic values associated with Brandeisian
pluralism even when doing so was economically costly. Over time, courts and
commentators began to recognize that because many industries are subject to
economies of scale, preserving small producers has a price. The problem was that
Populism failed to provide a basis for determining when the costs outweighed the
benefits. By the 1980s, even those sympathetic to the Populist School were
forced to concede that the economic approach to antitrust had prevailed” (Yoo,
2005, pp. 55, emphasis mine).
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The net effect of this newfound ascendancy was to shift antitrust “from hostility toward
vertical integration in order to protect small players for largely noneconomic reasons to a more
nuanced, explicitly economic approach that recognized that vertical integration can yield
substantial economic benefits” (Yoo, 2005, pp. 55-56).

“This is not to say that Brandeisian principles could not support a coherent
theory of regulation. It is only to say that no one has yet articulated such a theory
with sufficient clarity to be coherent. That said, the populist vision rests in
uneasy tension with the modern economy. Brandeisian populism aspires to the
type of small scale economic activity typically associated with Jeffersonian
democracy. It also tends to value economic stability for its own sake, since
instability tends to break down the citizenry. As such, it does not seem well
suited to industries like broadband, in which large scale, rapid, and often
disruptive change are prominent features” (Yoo, 2005, pp. 56-57).

The problem of diversity arguments, Yoo claims, is that “arguments in favor of
protecting small customers and speakers have historically failed to reflect any sense of optimality
and have instead regarded additional diversity as an absolute good” (Yoo, 2004, p. 54). With the
presence of scale economies, “promoting diversity exacts a cost that must be traded off against
the benefits of additional producers” (p. 54). Quoting the DC Circuit Court in 2002, then
commenting on media ownership policy, “Everything else being equal, each additional ‘voice’
may be said to enhance diversity….But at some point, surely, the marginal value of such an
increment in ‘diversity’ would not quality as an ‘important’ governmental interest. Is moving
from 100 possible combinations to 101 ‘important’?” (quoted in Yoo, 2005, p. 54). Not “each and
every incremental increase in the number of outlet owners can be justified as necessary in the
public interest” and “there certainly are points of diminishing returns in incremental increases in
diversity” (quoted in Yoo, 2005, pp. 54-55).
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Since telecommunications networks are subject to economies of scale, “forcing
communications enterprises to remain small can exact a price” —something, of course, no
advocate was calling for. “At some point, the marginal benefit associated with protecting another
small voice”—presumably here a small telco?—”will fall short of the marginal costs of
preventing network firms from realizing the available economies of scale” (Yoo, 2005, p. 54).
“As a result,” Yoo continues, “those who take seriously that it takes a model to beat a model will
be decidedly reluctant to embrace such an indeterminate [so far ad-hoc] approach [to such issues].
The open-endedness of the approach and the lack of a clear notion of optimality leave it
vulnerable to being redirected towards political purposes” (Yoo, 2005, p. 55).
Yoo’s attack continues to hit home. Preemptive rules like network neutrality were poorly
suited to ‘context-dependent’ settings; competition policy’s response “is not to put the burden on
the opponents of the practice and to permit the practice to occur until opponents can demonstrate
anticompetitive harms” (Yoo, 2005, p. 11). Implementing network neutrality would be difficult.
The tools needed to implement an interconnection regime, standardization, rate regulation, and
nondiscrimination implicit in network neutrality are difficult to implement and “unlikely to be
effective in industries like broadband, where the services provided vary in quality and were
technology is changing rapidly” (Yoo, 2005, p. 11). Combined with ‘reduced investment
incentives,’ network neutrality implies ‘regulation will continue indefinitely’ whereas network
diversity ‘is better at facilitating competitive entry. As such, it has the advantage of having
embedded within it a built-in exit strategy” (Yoo, 2005, p. 11). Until it is clear “complete
interoperability” is the best course of action, regulators should allow all forms of architectures to
go forward, lest “Intervening…would have the inevitable effect of locking the existing interfaces
into place and of foreclosing experimentation into new products and alternative organizational
forms that transcend traditional firm boundaries” (Yoo, 2005, p. 11). So letting ‘network
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diversity’ take hold is not that it would make things better, but that it is an exercise in
‘technological humility.’ Yoo is postmodern enough that to pose the need for a centralized
authority to regulate network neutrality as quite against the ‘decentralization’ desires of
advocates, once again turning their true desires on their head.
When advocates speak of the desirability of innovation commons online, Yoo pokes fun,
as the “accepted solution to the tragedy of the commons is the creation of well-defined property
rights, which would be more consistent with network diversity than network neutrality” (Yoo,
2005, p. 74). Further, “The presence of innovation externalities more properly suggests the
existence of an optimal size of a property right rather than a blanket presumption in favor of an
innovation commons” (Yoo, 2005, p. 74). A year later, he would make the claim that the
optimum solution for achieving maximized social welfare in an online commons is to ensure that
those who operate the commons are able to usurp such externalities—possible over an owned
resource—”effectively aligns social benefits with private benefits” (Yoo, 2006, p. 1891). In more
depth:

“Direct network externalities do not represent an economic problem. Because
they arise within a physical network that can be owned, the network owner is in
an ideal position to solve the collective action problem by capturing the benefits
created by increases in network size. Thus, even if end users are unable to
appropriate all of the benefits associated with their adoption decisions, the
network owner is in a position to internalize these benefits by charging prices
that reflect the benefits new users confer on incumbents. Indeed, the owner of a
physically interconnected network has every incentive to maximize the value of
the network in this manner. The fact that the benefits resulting from any increase
in the network’s value would accrue directly to the network owner effectively
aligns social benefits with private benefits” (Yoo, 2006, pp. 1891, citations
omitted).

If there is any doubt as to his sincerity regarding this interpretation—that the conduit provider’s
ability to capture what would ordinarily be a positive externality is a net benefit, Yoo even goes
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as far as to make the argument, similar to the Broward County court, that platform operators
rightly are seen to serve as ‘editors’ and should be allowed to exercise editorial control over the
information they convey (Yoo, 2005, pp. 46-47).
The overarching point here, however, is that the door Wu opens and the bridge that
Farrell and Weiser provided opens the possibility of exactly these arguments to appear.
“Brandeisian” views also held another major disadvantage, in actuality. There were few monied
interests like the NCTA who were willing to put up resources to ensure that the arguments were
utilized, much less developed.

Blowing down the door Wu kept ajar

If Yoo is measured, J. Gregory Sidak (Sidak, 2006) provides a bombastic response often
seen as a the second definitive argument against Wu. Which makes sense: as the head of Criterion
Economics, Sidak had parlayed his past affiliations into economics-for-sale.
15
He had served as
Deputy General Counsel of the FCC and as Senior Counsel and Economist to the Council of
Economic Advisors in the Executive Office of the President in the late 1980s. He had been
involved in this realm for several years already pushing similar opinions, either directly on behalf
of the interests he favored or indirectly via such institutions as the American Enterprise Institute
(Crandall & Sidak, 2002; Hausman & Sidak, 1999; Hausman, et al., 2001). Sidak is spastic,
throwing the Microeconomics 101 textbook at readers, with one section arguing in terms of
overall surplus, the next in terms of transaction costs, the next shedding crocodile tears for the
interests of those less well off.

15
His website is http://www.criterioneconomics.com/.
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Perhaps one of the more revealing moments of what is to come occurs as he quotes
Lawrence Lessig’s oft-repeated words from a Foreign Policy article in 2001, “The Internet
revolution has ended just as surprisingly as it began. None expected the explosion of creativity
that the network produced; few expected that explosion to collapse as quickly and profoundly as
it has.” Sidak sneers:

“Lessig suggests no empirical methodology for measuring how much innovation
in independent applications is occurring, let alone whether the level of innovation
has changed over a period in which Lessig believes the Internet has lost its
neutrality. In essence, Lessig is presenting a testable hypothesis, yet his argument
is anecdotal and rhetorical rather than empirical. …To properly address Lessig’s
hypothesis that the ‘end of neutrality’ stifled innovation among content
providers, one would need to conduct an econometric exercise that controlled for
other factors besides network neutrality. Is the decline of innovation in
broadband applications that Lessig posits a phenomenon that, if it indeed exists,
can be causally separated from the general collapse of the market capitalization
of Internet startup companies that began in March 2000? In other words, the
instances of broadband discrimination to which Lessig and Wu point all
supposedly happened after the Internet bubble burst. So how can one distinguish
between reduced investment in Internet applications that is “caused” by the
prospect of broadband discrimination and reduced investment that is caused by
reduced availability of capital for Internet ventures generally?” (Sidak, 2006, pp.
407-408).

He then calls attention to the a vision cast in Wired magazine, a vision of a grand ‘second
coming’:

Battelle believes that Internet ‘search is smack in the middle of the Web’s second
coming, a resurgence driven by companies like Google, eBay, Amazon, Yahoo,
and Microsoft.’ Indeed, that resurgence is so powerful that ‘Google made [its]
first profits in the darkest hours of the dot-com col- lapse.’ Coincidentally, these
same firms are the major proponents of network neutrality regulation. ‘These
companies,’ writes Battelle, ‘are in an all-out war for the market of the future,
one where the spoils number in the hundreds of billions of dollars.’

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“Clearly,” Sidak seems to cackle, “Lessig and Battelle cannot both be correct. Morbidity
and vitality cannot simultaneously describe the state of innovation at the edges of the Internet.
One of these two Silicon Valley visionaries must be mistaken. Is it the columnist for Wired or the
co-founder of Wired?” (Sidak, 2006, p. 408). While Sidak might not think so, it is, of course, a
trick question: each simply envisions a potentially different Web. Even this choice harbors an
erasure: both visionaries divined a different Web; one simply held ‘innovation’ and a romantic
notion of creation at pride of place—a lesson passed to his protégé—and one held that the
galloping presence of large commercial entities online constituted a resurgence of the Web’s
possibility. Neither vision includes a fuller discussion of the social purpose of the technology and
how that might be attained.
The blossoming of the Internet into a consumer paradise finds its champion here.
Illustrating “how investment in Internet applications has thrived in the period of Internet
deregulation” he points to the acquisition of Skype by eBay (Sidak, 2006, p. 402). Applications
markets have blossomed, he extolls, particularly in the realm of video content.

“Apple offers television shows on its website from many networks, including
NBC Universal, Comedy Central, the Sci-Fi Channel, USA Network, MTV,
Disney, and ABC. These programs can be downloaded to a computer or an iPod
in a high-quality H.264 QuickTime format that does not stutter, unlike streaming
video. Apple currently offers episodes of many popular television shows,
including Saturday Night Live, The Office, Monk, X-Games Highlights,
Desperate Housewives, South Park, and Lost. Each video costs $1.99, and a
given episode is available one day after it originally airs on network television.
Because the videos can be synched with an iPod, consumers can watch the shows
anytime, anywhere. (Sidak, 2006, p. 404).

In addition to this “success,” he notes the booming business of the likes of Akamai’s
content delivery networks which situate this content closer to end-users. “If one were to apply
Google’s business model to the network neutrality debate,” he continues,
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a provider of DSL or cable modem service could subsidize the price of its
broadband access to end-users through revenue earned from the sale of
advertisements. This outcome would clearly be a Pareto improvement. It should
be encouraged, not foreclosed by regulation. Likewise, allowing a network
operator to subsidize the price of broadband access with revenue from a
surcharge to content providers on the priority delivery of content would make
possible a Pareto improvement and would allow potential end-users that are
currently priced out of the market to enjoy broadband access. To deny broadband
access to the marginal consumer—by prohibiting access tiering or vertical
integration by network operators into Internet content and applications—is to
pursue an anti-Pareto principle. Call it digital Schadenfreude (Sidak, 2006, p.
464).

The increasingly commercialized nature of this second-coming of the Web is trumpeted
by Sidak in indelicate terms: “The era of subscription-based Internet portals is over,” that “The
debate over network neutrality regulation places subscriber-funded business models on a collision
course with a newer generation of advertiser-funded business models.” (Sidak, 2006, p. 427). The
largest players are restructuring themselves “through acquisitions, joint ventures, and new service
offering—to dominate the market for search-related advertising. These efforts share the common
strategy of aggregating different customer bases to offer a larger bundle of advertiser-funded
services, much as television networks half a century earlier offered a blend of entertainment,
news, sports, and other programming that all was advertiser-funded…These efforts share the
common strategy of aggregating different customer bases to offer a larger bundle of advertiser-
funded services, much as television networks half a century earlier offered a blend of
entertainment, news, sports, and other programming that all was advertiser-funded” (Sidak, 2006,
p. 427).
Could anything be further from the democratic visions of the likes of Chester and
Larson? Here was the vision of a bright consumer utopia, the antithesis of democracy—the
scarcification of the Web at its most pernicious, the Internet as consumption machine. Sidak
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accuses such activists as potentially increasing the digital divide; the institution of a form of
‘network neutrality’ in which content providers could not be permitted to pay for priority flow
would result in end users paying for the entire cost of rollout, thus implicitly discriminating
against those who cannot afford it. “The natural question to ask is,” he announces, “Why would it
advance consumer welfare to exclude particular categories of firms from entering into
transactions with third parties in a manner that would make broadband access available to the
price-sensitive or income-sensitive consumers who currently forgo the service” (Sidak, 2006, p.
352)?
The framework within which to view questions of network neutrality has little to do with
information or democracy; it is a paint-by-numbers total-economic-welfare calculation. Sidak
(2006, p. 355) lists five ways “banning access tiering” decreases social welfare. A harm would
first and foremost be the “decrease [in] the quantity of prioritized delivery, given the differences
in demand for priority among advertisers and end-users;” real time applications would be
discouraged from development due to the inability to purchase priority; “contracting between
end-users and access providers would generate greater transaction costs than would contracting
between advertisers and access providers;” content providers themselves “are better positioned to
price for priority according to application-specific price elasticities of demand, which is
consistent with socially optimal pricing under Ramsey principles.”
16
Lastly, if even a ‘weak form’
of a ban on ‘access tiering’ were enacted (in which each ‘type’ of content or application would be
subject to uniform prioritization or discrimination) “entire classes of customers across which
differential pricing could be employed, [thus] the costs of administering the regulatory price-
setting apparatus would be significant” (pp. 355-356).

16
Ramsey pricing refers to a means of pricing services by a provider of differentiated services which, in theory,
maximizes welfare. One prices those services in an inverse relationship to the price elasticity of demand for each
service.
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Sidak then shifts concern from the provider with market power to the self-interest of
those who use its services. Network neutrality turns out to be an insidious plot by dominant
online interests. “Despite having these net costs to social welfare, network neutrality regulation
that prohibited access tiering would privately benefit incumbent providers of content or
applications—which explains their support for it” (Sidak, 2006, p. 356). The reasoning for this is
similar to the logic of cigarette makers who agreed in concert to a ban on advertising: the place of
incumbents remains secure, but new entrants may find it difficult to reach potential customers
with their offers. Similarly, his reasoning is that by somehow allowing paid prioritization online,
some new upstart (with, apparently, money to burn) could purchase prioritization over and above
what the established players were obtaining, thus distinguishing itself.
In these early texts the emphasis is only in terms of prioritization as speeding up traffic,
rather than holding back deprioritized traffic. This, of course, is simply a falsehood as to how
this operates at the level of network management. The act of ‘privileging’ certain traffic entails
merely holding back deprioritized traffic flowing through a router; it is a zero-sum game (see, for
instance, Lennett, 2009). Years later, as more got wise to the ruse, Sidak would hedge, “The
FCC’s focus should not be on whether permitting charging for optional [quality of service]
enhancement is a ‘zero-sum game’ for content providers, but whether doing so is a ‘positive-sum
game’ for social welfare” (Sidak & Teece, 2010, p. 48). If policymakers paid attention instead to
how these authors’ created broad visions for democracy—it is all laid out, directly—then they
would perhaps have been horrified. It looks like no theory of democracy that I can identify. Sidak
shunts attention from the power held by communications networks directly to advocacy groups
and places them on a level playing field with the likes of Google or Microsoft.

“I address the concerns that specialized regulatory rules are necessary to ensure
that end- users have unfettered access to political websites and that political
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action groups, as diverse as MoveOn.org and the Swift Boat Veterans for Truth,
are not relegated to the “slow lane” of the Internet, thus raising their cost of
political advocacy. Although the portrayal of network neutrality as a competition
issue concerning blockage of content may have visceral appeal to legislators and
journalists, the true impetus to enact network neutrality regulation may relate
more closely to the business models of advocacy groups that use the Internet to
advance their political causes or to raise funding.” (Sidak, 2006, p. 1317 ).

When blocking is discovered, for Sidak, it’s a misunderstanding—albeit one that seems
to only afflict the left during this time. To cite one example, in 2005, “afterdowningstreet.org,”
who had been responsible for exposing memos that revealed a longstanding interest by the Bush
Administration in invading Iraq, was attempting to organize happenings surrounding these
memos. Their plans were rendered difficult once it was discovered that the reason certain of their
messages were not reaching their intended recipients was because anyone using Comcast’s
network could not receive emails with the name of the organization’s website in the message
body. Co-founder David Swanson wrote at the time,

Disturbingly, Comcast did not notify us of this block. It took us a number of days
to nail down Comcast as the cause of the problems, and then more days, working
with Comcast’s abuse department to identify exactly what was going on. We’d
reached that point by Thursday, but Comcast was slow to fix the problem.
…During the day on Friday we escalated our threats to flood Comcast’s
executives with phone calls and cancellations, and we gave them deadlines.
Friday evening, Comcast passed the buck to Symantec. Comcast said that
Symantec’s Bright Mail filter was blocking the emails, and that Symantec
refused to lift the block, because they supposedly received 46,000 complaints
about emails with our URL in them. Forty-six thousand! Of course, Symantec
was working for Comcast, and Comcast could insist that they shape up, or drop
them. But Comcast wasn’t interested in doing that. …Could we see two or three,
or even one, of those 46,000 comments? No, and Comcast claimed that Symantec
wouldn’t share them with Comcast either (Swanson, 2005).

By the time this conversation transpired, another member of the group had posted a story
elsewhere regarding the apparent block, and only later after adding Symantec’s phone numbers to
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the story did Symantec clear the block “in a matter of minutes.” The 46,000 figure was
extraordinary given the group had “only been around for a month and a half, and [they had not]
spammed anyone. In fact, during the course of trying to resolve the problem, Comcast assured us
that they knew we hadn’t spammed anyone” (Swanson, 2005). The author’s chief concern was
how easy it apparently was for political opponents to disrupt his group’s communications and
how difficult it was to track down the problem.
Sidak preferred another interpretation entirely. What had occurred in his eyes was a
practice which “appears to have been a content-neutral exercise of spam filtering,” of which
proponents of network neutrality had considered a potentially desirable form of discrimination.
Thus it was of little concern. This was actually neutrality-friendly in his view, since the farming
out to a contractor of such duties “reduces the possibility that Comcast would make a blocking
decision based on its own preferences.” Additionally,

The rapid resolution of the afterdowningstreet.org affair also undercuts the case
for ex ante network neutrality regulation. It instead suggests that the market is
capable of working efficiently to mediate disputes involving the legitimate
concerns of both end-users who dislike spam and content providers who seek to
express political speech to as wide an audience as possible (Sidak, 2006, p. 438).

He says this without irony. He does allow that “Scenarios involving impaired delivery of political
content, or blockage of access to political websites, do not fit neatly within the economic
framework for evaluating the incentive and ability of a network operator to block or impair access
to content or applications that in some manner compete against its own services,” but that is the
point of his intervention: this dimension should be considered irrelevant.
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And frankly, should we even be concerned, Sidak asks, if political participation groups
are unable to get their messages out online? After all,

“This concern about democratic participation through the Internet deserves
serious consideration, unlike many of the economic arguments advanced in
support of proposals for network neutrality regulation. However, neither
MoveOn.org nor the Swift Boat Veterans for Truth provides a particularly
compelling case in support of that concern. MoveOn.org received the financial
support of a billionaire, George Soros. So it is debatable whether the group
would lack the resources to pay for faster delivery of its packets over the Internet
if access tiering were implemented. Similarly, the Swift Boat Veterans for Truth
was partly (if not largely) a highly effective fund-raising organization that
succeeded in raising millions of dollars within weeks” (Sidak, 2006, p. 436).

In Sidak’s online democracy, now that the debates had been rejoined to their old currents, one
need not worry about having one’s views heard: all one needed to ensure a view was heard online
was to have sufficient capital.

Two sides, one coin

Even these concerns aside, perhaps of even greater significance is that the ‘legitimate’
bounds of debate were often depicted as Wu pitted against Yoo. This laid out a formidable
problematic, represented well in a 2007 debate between the two (Tim Wu & Yoo, 2007, p. 582).
What is so revealing in this discussion is how little air there was between the two parties. Wu’s
perspective—the public interest perspective as portrayed in this fight, mind you—recalls the
ambivalent line that advocates in this universe needed to walk. The issue was it was no longer
ambivalent: it had joined the dominant current and strengthened it thanks to its underlying
justifications for existence. For instance, Yoo’s ability to take the argument once enunciated by
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Erik Sten, Councilman of Portland, Oregon speaks to the shift, now that the sentiment had been
‘tamed’ by Farrell, Weiser, and (paradoxically and certainly not intentionally) Wu:

“Competition in the last mile can achieve the same benefits while avoiding the
problems associated with regulation. Once a sufficient number of last-mile
options exists, it would matter little if one network chose to make Yahoo! its
preferred search engine. …So I agree with Tim that we should place our faith in
market entry. Where we differ is that I would focus on entry into the last mile,
not entry into content and applications” (Tim Wu & Yoo, 2007, pp. 584-585).

Wu adopts, with Yoo, a deployment frame, albeit in disagreement with Yoo’s contention
that the ability to charge prioritization or access fees will stimulate, not retard, investment in
broadband networks (p. 584). Yoo put his faith in the ability of last-mile competition to ‘emerge’
out of seemingly nothing based on the decreasing costs of components of networks and the ability
of new builders to potentially sell out to others if their efforts fail. Wu, who had actually spent
time working in the telecommunications industry, countered with the sheer enormous
expenditures required to wire the last mile. But before any discussion of subsidization of any
variety can transpire, Yoo quickly posits a particular version of history:

“In the vast majority of countries, telecommunications networks were
government-created and -owned. The poor service quality, long waiting lists for
installation, and slow development of new technologies in Britain and other
government-owned telecommunications systems are legendary. The most
eloquent proof is that essentially all of those countries are either in the process of
privatizing their telecommunications networks or have already done so. Waiting
for these new last-mile networks to emerge can be frustrating, and the lack of
last-mile options may cause content and applications providers difficulty in the
meantime. Before jumping in and regulating, policymakers should remind
themselves of the inherent tendency to overvalue immediate harms and to
undervalue future benefits” (Tim Wu & Yoo, 2007, p. 589).

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The new ground on which all here stand enabled Yoo to wave away the liberalization of
networks on a global scale which, Schiller reminds us (Schiller, 2000, 2007), did not emerge from
the desires of individual residents and citizens but the global drive to network business
operations. The lack of distinction between drivers of demand (business interests, financial
interests and individual consumers are all conflated as one) is one of the great erasures of the
network neutrality debate on a large scale. For Yoo, privatization elsewhere was not an agenda
but rather a response to failed policy in the abstract. The latter may be true in any number of
regards; but to ignore the former, and to be enjoined in ignoring the former by Tim Wu who was
now standing-in for the public interest on these affairs, is the height of the neoliberal drive in new
clothes.
Broadband becomes a means to stamp out platforms that grant semi-democratic
opportunities for meaningful participation aboard widely-available media in the name of the
creation of a hope for semi-democratic opportunities for meaningful participation. “In telecom,”
Wu notes, “the high upfront costs have sometimes but not always scared off private investments.
They haven’t scared off investment when the market entrant is offering a new and compelling
service, like cable television in the 1970s, or at one point, telephone service between the 1890s
and the 1920s. But when there’s an incumbent in place, either its presence, or misguided
regulation like franchising requirements, seems to have deterred market entry” (Tim Wu & Yoo,
2007, pp. 585, my emphasis). Such franchise agreements were forms of local control over
communication systems, if imperfect. They were themselves the key to the entire open access
debate—instigating it even—and this attack by friendly fire was occurring at a time in which
communities were coming under fire who, through hard-won negotiations with cable companies,
managed to secure local public access stations. These stations had become a main source of
distribution of such programs as Democracy Now, one of the few venues which would carry Wu’s
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opinions on a regular basis. Across the country telecommunications interests were attempting to
unravel such agreements via state-level laws to consolidate such negotiations with blanket
arrangements.
This is the way in which these debates got tangled and torn. The decades-long effort to
establish a theoretical frame to evaluate all services and commodities as one and the same widget
paid off in a big way: best of all, it managed to cut both to the (seeming) left as well as (seeming)
right. The common ground shared gave Wu a natural platform to shoot himself in the foot and to
agree that broadband rollout of any kind is desirable with nary a worry concerning what kind of
Web one would obtain, the political economy of the online world be damned, one of the principal
critiques of McChesney (2013).
Now, lest I be misconstrued: none of this should be construed as an attack on Wu and on
advocates who struggled on this issue. But the fact that now scrubbed off the table entirely was
what kind of Web should be on offer, and that this would then consume a half-decade’s debate,
only meant that the commercial web could spend that much longer cementing itself without
broader discussion of it. Such was the paradoxical ‘use’ of the network neutrality debate. The
themes of both ‘sides’ included the abnegation of positive desires in favor of an evolutionary
innovation model; regulations won to maintain accountability (such as the negotiations localities
underwent to win such resources as public access channels) were to be discarded in the name of
competitive entry of a Web that was, barring a movement against it, moving against such
concerns. The denizens of the Mont Pèlerin Society would be pleased: the constrained set of
choice now supplied at an entirely theoretical level had been obtained, helped by the appearance
of this new form of compliant resistance

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Conclusion

Yoo is not without his caveats regarding his vision. “I do not claim that every deviation
from NN will necessarily enhance economic welfare. …For my purposes, it is sufficient if some
deviation from NN may plausibly be motivated by legitimate concerns and it is hard to
distinguish procompetitive and anticompetitive uses of such restrictions, as NN proponents have
conceded is often the case” (Yoo, 2006, p. 1855). He reminds that

These arguments should not be misconstrued as favoring noninteroperability as a
general matter. On the contrary, I would expect most network owners to continue
to adhere to a basic architecture based around TCP/IP. Maintaining
interoperability provides consumers and network owners with such substantial
financial advantages that most will adopt standardized protocols voluntarily. In
most cases, then, mandating network neutrality would be superfluous. The only
situations in which network neutrality has any purpose are those in which the
market exhibits a preference for nonstandardization. My concern is that
compelling interoperability under those circumstances runs the risk of reducing
economic welfare, either by preventing the realization of efficiencies or by
reinforcing the economies of scale that are the primary causes of potential market
failure (pp. 54-55).

Such pronouncements increase his credibility, something that the NCTA certainly
desires; like the original sponsors of the Mont Pèlerin Society, the recognition is that the
development of a system of understanding trumped bombast, although others would be able to
provide that to fill out the tactical menu. Viewed less as a positive production of knowledge about
broadband networks and networking, what we observe on full display is a vision of democracy of
long vintage. It took the dance of Wu and Yoo to realize it. The discussions contained in these
primary documents of the early network neutrality debate presented a potential new problematic
on a grand scale with which media reform advocates would need to contend.
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These arguments would be enjoined by numerous others. The publication in 2007 of a
compendium of ‘significant’ stances on the network neutrality debate by the International
Journal of Communication, for instance, would provide the illusion of knowledge gained,
understandings taken. The enactment of the debate itself was never about increasing the
understanding of networks, although those directly involved in networking certainly found them
helpful. Unwittingly, the academy had been drawn into a long-plotted project: tacking both right
and left, the authors contained therein who constituted ‘serious’ takes on the issue were being put
to broader purpose: policing the boundaries of debates in official policy circles. The seeming
‘debate’ yet concurrent closeness between the stances of Wu and Yoo leaves us nipping at the
heels of rapidly supplied justificatory ammunition designed behind its own back to render a once
heterogeneous debate now diverse, tractable, decidable, legitimatable. The final policies would
largely ignore the actual content of these debates despite their profusion.
If there were any doubt as to how this happenstance shifted the ground, we need look no
further than an award-winning comment from Barry (2008). Written then as a J.D. Candidate, this
piece won a “Second Prize in Comments” from the legal journal in which it was contained. While
there had been several cases of discrimination online, activism to thwart such blocking was
eliminated from the story: “So far, the few cases of network providers abusing their control of the
network have been quickly remedied by complaints from consumers and application providers,”
he writes (Barry, 2008, p. 431). He casually hearkens back to Farrell and Weiser’s ICE
framework, but is careful enough to note that there may be some exceptions to it, such as
transaction costs for consumers to switch broadband providers—but this is of little concern.
“[M]arket demand has already had a considerable impact in safeguarding net neutrality in
numerous instances,” he writes; after all,

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AOL initially sought to offer its subscribers a ‘fenced-in’ Internet of affiliated
sites. This plan was quickly dropped, however, as the Internet grew and
consumers demanded access to the whole Internet. A similar example of market
demand safeguarding net neutrality involved network providers’ early attempts at
blocking or streaming video applications. Eventually, network providers gave in
to consumer demands for unrestricted use of streaming video applications (pp.
434-435).

Gone from the story were the efforts of consumer activists to ensure that these conditions
existed; replaced are the power of market forces given a life of their own in an effort to square the
dominant theory to the practices of the real world. Emerging naturally and without malice was yet
another wild goose for consumer advocates to chase: they would need to continually remind all of
the struggles past, that these desires were not made known simply by the forces of the market.
They were forced to make these desires known in national venues and state and local venues in
the form of policy debates that were now foreclosed. The market fought these developments tooth
and nail until it was able to ‘cede’ some ground to the consumer advocates who ironically were
fomenting the growth of an increasingly commercial environment by keeping the wheels turning
in this debate, even as the consequences of not doing so would likely be more dire.
Forgetting open access, crucially, was not about wiping out the possibility of activism
alone. It was about forgetting the ad-hoc articulations of new forms of knowledge that awkwardly
attached themselves to a long-running frame that needed to incorporate them and yet had not
found its way to do so. Farrell and Weiser provided one of the key ties; there surely were others.
Wu, ironically, created the strongest tie and supplied the boundaries that commenced to be filled:
the horizon suddenly became viewable. Other activists working on the issue would do similarly,
such as when Marvin Ammori in an interview would emphasize, “Because innovators did not
need to seek the permission of a centralized bureaucracy at an ISP (let alone dozens of ISPs),
[they] faced low economic barriers to entry and could reap the rewards of innovation, successful
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innovators were able to create technology like Google, eBay, and Twitter, none of which kept its
initial business model nor was envisioned by an ISP [sic]” (Picot & Krcmar, 2011, p. 329). As
Streeter (2011) reminds, often forgotten are the financiers, the material supports necessary to
push an ‘invention’ and model out of the garage. This had been, at least in the background, one of
the concerns of open access, now buried and rarely discussed.
What FCC Chairman Michael Powell did was give the process a shove toward its own
realization. Activists accuse him of political maneuver; here was politics in another register. The
Wu-ian intervention mattered because of the foundation it rested upon. Unlike the ad-hoc nature
of the consumer advocates’ arguments, here was the application of descendent thought of the
thought collective of years past in new clothes: it tacked both seemingly ‘left’ and ‘right’ at once.
It reigned supreme. Wu was the product of it: the debate itself was now necessary for the broader
system’s survival. It possessed each and every one of the features Mirowski noted, which we saw
in the first chapter. As such it fit into already-occurring debates regarding antitrust, the new
theory of everything. Yoo’s response meant that this Theory of Everything could now firmly be
made to apply, with network neutrality advocates’ blessing, to this new realm. The urge to shape
an emergent market could not be resisted.
We end with a truly ambivalent stance on the contribution of Wu. He saved consumer
advocates from oblivion by providing a new opening for debate as Powell was shutting down
another. Simultaneously, Wu served to transform the battle by unwittingly taking away one of the
best tools advocates had due to the foundation from which he chose to draw his arguments, which
tapped into a long-simmering current which now could pick up steam like a hurricane picking up
power after happening across warmer waters. Worse, the debate had wealthy benefactors to keep
the winds churning. In the process, for advocates to retain legitimacy in Washington, they would
be set chasing their tails answering the new charges and arguments tossed out—and then doing so
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again and again as the same arguments seemed to spring like weeds from the newly fertilized soil,
no conspiracy necessary.

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Chapter 6: Aftermath – Toward a New Problematic

After so much discussion about the justification for policy, of the creation of policy, one
rightly asks: So how exactly is policy made? One ex-FCC staffer, who would only speak on
background, confided in me one of his experiences when this staffer worked at the FCC. One
particular set of deliberations revolved around the revision of a form that companies would need
to submit. A rulemaking was on offer in this regard. Involved in the making of any such policy in
the end involves “the spreadsheet,” quite literally an Excel spreadsheet “that describes the
comments, gives quotes, page numbers, general issues also keyed to comments.” The staffer
didn’t really know what happened “higher up the [staff] food chain,” but there was generally a
good-faith effort to get all offered comments in. “Now, the ‘fun’ part doesn’t really start until
late,” he told me. “Often these orders aren’t really ready until the last minute. On this particular
proceeding, we worked until midnight—often these things really even take longer. There was a
chart up on the white board put up by the Deputy Bureau Chief. Along the top were each of the
commissioners besides” the Chairman’s. The Chairman’s “own positions would be along the left
side: via a check-box approach this was where the ending ‘balancing’ goes on.” He paused for a
minute. “I’ll never forget that white board. In the end it comes down to the white board. Every so
often the Chairman’s legal aide would step in and monitor the discussion, seeking enough on each
side”—here, meaning democratic or republican—”to make the thing ‘passable’ even with
dissentions” by other Commissioners.
The FCC Chair can ensure that whatever he or she wants quashed will be quashed;
whatever he or she wants pushed ahead will similarly be pushed. The same staffer related an
initiative undertaken by the Wireline Bureau to jumpstart thinking on network neutrality, given
the issue was inevitably going to be addressed by the Commission at some point. The Chair found
out and sent staffers to stop the effort in person, rather than leave a paper trail that might someday
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be revealed in a document request. Generally nothing is worked on without the Chairman’s
blessing.

Advocacy responds

Advocates in Washington long knew these things. By the same token, they needed to
respond to the new epistemic current washing ashore in DC. They did so several ways. One
would be to completely disattach the network neutrality proposal from the ontic content of its
moorings, by taking the effect (or the state) of network neutrality as, now, a policy to be invoked:
it was then set adrift, ready to find itself articulated to new foundations and justifications. The
effect of this was that while the issue became increasingly tractable with the broader public (in a
certain sense), the ‘ersatz’ understandings would be prevented entrance to the official debates due
to this detachment from its original foundation in evolutionary theory. Nonetheless, the ability to
extend beyond the ‘grasstops’ efforts of the earlier consumer advocates in Washington during the
open access debates proper would be crucial. Thanks to Wu’s rendering of a once heterogeneous
realm diverse, and Powell snapping shut the interloping open-access concerns that could have
possibly reversed the process once again (or could they?), either another round of additional
knowledge of an ad-hoc variety would need to be found to make the boundaries recede once
again into shadow, or something else would need to perform that function indirectly.
Activist groups sought all manner of options to include the ersatz in policy proceedings:
this had been one of the original goals of Free Press at its inception, to bring the public’s voices
more firmly into this arena. The emergent SaveTheInternet.com campaign performed the function
of slowing Congressional debates on the issue and bringing pressure on an administrative agency
unused to such pressure. Perhaps never before had such a wide-ranging set of perspectives and
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groups banded together on a tech-policy issue; the SOPA and PIPA showdowns of early 2012
would be the descendants of this effort. The ersatz understanding made appearances in town hall
meetings that the FCC held as well as those held by independent groups with the presence of
certain of the commissioners (generally Commissioner Michael Copps or Commissioner Jonathan
Adelstein). (For more details of these initial hearings, see R. McChesney, et al., 2005.) It made its
appearance in numerous dockets. It made its appearance in signed petitions delivered to
Congressional offices en masse.
There are numerous ways of ‘eliminating the ersatz’ from consideration in Washington.
Often, the majority FCC members simply stopped attending even their own ‘official’ town
meetings when it was realized ordinary people would actually show up. Submission of comments
to the FCC via their online webform is incredibly intimidating for newcomers: in older
proceedings, the only filers tended to be lawyers representing industry groups or state/local
governments, the occasional public interest group, and perhaps representatives of the FCC itself.
Once Free Press compiled an algorithm that allowed the easy filing of comments to the system,
the FCC installed a feature on the search page, at the bottom, that one could check to “Eliminate
brief text comments.” As it became regular practice to encourage their email lists to file
comments in controversial proceedings, this button became a permanent feature, conceivably to
quickly discern the ‘important’ or ‘substantive’ comments.
17
(With Obama’s ascendancy, an
additional button was added to provide exclusively these comments.)
Such new input which potentially heterogenized the field of action needed to be reined in,
classified, revealing the field every bit as diverse as it had been rendered with the elimination of
the open access debates from consideration. It drove those economists long affiliated with
telecommunications policy debates nuts. Bruce Owen, for instance, would exclaim in 2007, “net

17
See for yourself: http://fjallfoss.fcc.gov/prod/ecfs/comsrch_v2.cgi.
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neutrality debate has taken place in the rhetorical equivalent of the fog of war. The originators of
the debate chose to invent new language to describe both a familiar economic problem and a
familiar legal and regulatory solution to that problem. Much of the popular writing by pro-
neutrality advocates is maddeningly vague and heavy with sloganeering. Their argument seems
tailored chiefly for political effect rather than analytical rigor. It has taken several years for
scholars on both sides to penetrate the fog” (Owen, 2007, pp. 15-16). Back to basics: “Translated
into the language used by economists, the debate is about preventing bad (anticompetitive)
behavior by vertically integrated firms that enjoy market power at one stage or another of the
vertical chain of production” (Owen, 2007, p. 16), to be “implemented through detailed price
regulation, an approach that has generally failed, in the past, to improve consumer welfare
relative to what might have been expected under an unregulated monopoly” (Owen, 2007, p. 14).
Following in the footsteps of others, Owen reminds that the boundaries to this realm of
knowledge are well policed: “The consensus view nowadays is that vertical integration is simply
an instance of the determination of the scope of firms, as distinct from markets” (Owen, 2007, p.
16). Letters signed by numerous economists—some directly compensated for their efforts, some
indirectly, some not at all—appeared making virtually the same points (Baumol, et al., 2007).
But the point is not even the influence of paymasters here, nor any possibility that the
opinions, tacks, and output of these individuals would be swayed by corporate largesse. It would
not; it was not necessary. Such support merely kept the process moving and enabled production—
the production of discourse was what was sufficient, because whether these economists believed
that their studies were being used or not, whereas in the past they may well have been, the tenor
of our times is such that these economists themselves were being used. I can assure as well that
the civil servants I met at the FCC and beyond sincerely believed that these contributions added
to the debate, and they were sincere in actually seeking broad input on these initiatives. One
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staffer, still speaking on background, wondered to me why the throngs who would occasionally
protest FCC actions outside the building just didn’t come in to express their grievances in sit-
down setting. Yet even such discussions, in today’s world, amount to a channeling of effort into
activity which both helps and hurts their cause. Helps: they may well get taken seriously. Hurts:
their engagement might hint that their activities, once viewed as mysterious, threatening, or just
annoying (and which push the horizon further away) can be categorized amongst the available
options presented by the logics pervading an actually diverse epistemic setting and thus have
sense made of them: they become one more voice in the pot which, when the whiteboard is
sketched, don’t matter anyway. Diverse settings are far more comfortable than the terror rendered
by a horizon one cannot see.
This is also not to misunderstand what was going on outside the Beltway: these logics for
network neutrality may have been unmoored from their particular theoretical roots which had
been laid in elite Washington legitimation-discourse, but they were quickly being retrofitted to
other logics entirely, just different ones, ones unrecognizable to the conceptual apparatus now
firmly constructed in Washington. The efforts outside the Beltway were no naive moves: ordinary
people had discovered for themselves, like the consumer advocates of the late 1990s and early
2000s, ways in which their lives had improved thanks to the introduction of broadband
technologies and were seeking to defend their own ways of life in the face of its shifting under
their feet. The Whitacre threat had rendered these concerns real, even if their romantic
conceptions of how the Internet worked channeled their efforts into their own efforts not against
capital, but between capitals: an ambivalent space. To a degree, the tactics worked, precisely
because it took so long for the whiteboard to ever get fashioned. Massive, unexpected public
involvement did render the field heterogeneous for a time. It is incredibly revealing, for instance,
that Commissioner Jonathan Adelstein in 2003 called network neutrality a “solution awaiting a
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problem,” and Yoo trots him out as a weapon in 2006—years after Adelstein had met some of the
ersatz in settings outside of Washington and had become one of network neutrality’s stalwart
defenders (Yoo, 2006, p. 1856fn1833). The massive outcry by ordinary people with varying
degrees of understandings of the issue did stall a process that, for all intents and purposes, should
have barreled forth full steam.
It takes an “ally” in the White House and at the FCC to reveal once again the boundary-
policing functions that the gatekeepers can wield once the issue has been rendered diverse. A
different FCC staffer, who like the first also insisted on speaking on background, revealed
striking information about the formulation of the Open Internet Order. The first staffer had
mentioned “the spreadsheet” that is generally produced of all comments, since the FCC must
respond to all of them by law; this second staffer noted similarly that ordinarily an ‘encyclopedia’
of the comments are prepared with a common summary. This time that summary was not on
offer. Rather, staffers received an outline of what was to be said with the expectation that the
blanks would get filled in. Worse, the numerous new ways that the FCC sought to reach out to the
public similarly had a less benevolent function: users who submitted to the FCC blog as opposed
to the official comment engine did not contribute to the end-decisions at all; in supplying more
ways to facilitate public input, the agency had instead found a way to channel all of this effort
straight into a wall. It was a cynical move in effect, if not intent.
In the process of hunting down old comments from old proceedings myself for this
project, it is disheartening, if amusing, to come across numerous offerings of earnest citizens
seeking to file a complaint on a new issue in an old docket that seems to be relevant but has long
been gathering electronic dust waiting to be canned-airblown away in a server farm somewhere.
The increased ability to access government has not rendered more effective communications with
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it. It may have arguably become more difficult, with the discursive communities surrounding so
many issues closing ranks all the more tightly: ironically, by expanding debates in diverse ways.
The expressions of desire by the multitudinous members of the ersatz were adjoined by a
second strategy emergent activists could utilize. That was to recognize that in order to maintain a
seat at the policymaking table when the whiteboard was drawn up, this now-diverse range of
thought needed to be engaged with, at least in public, even if the decisions at the whiteboards had
little or nothing to do with the ontic content of their arguments. Marvin Ammori, who played a
key role in the endgames of the Open Internet debates (but even more pivotally so in the struggle
against Comcast’s blocking of BitTorrent), noted at the outset of the Obama Administration,
“Though ideas alone are often not enough in ‘politics,’ they do matter in policy debates. The
incumbent telephone and cable industries succeeded in winning the war of ideas, largely because
they were able to fund an army of lobbyists, as well as scholars at universities and think tanks,
many of whom published books and articles in the most cited law and economics journals
supporting their cases” (Ammori, 2009, p. 91). While true, today’s happenstance is quite of a
different piece than other eras, when the likes of James Q. Wilson might make the charge of the
use of research in policymaking that:

Most organizations change only when they must, which is to say, when time and
money are in short supply. Therefore, most organizations will not do serious
research and experimentation in advance. When they use social science at all, it
will be on an ad hoc, improvised, quick-and-dirty basis. A key official, needing
to take a position, respond to a crisis, or support a view that is under challenge,
will ask an assistant to ‘get me some facts.’ The assistant will rummage about
among persons who are reputed to be expert, who are perceived to be politically
sympathetic, and who are available at the moment. The process may take a few
weeks, it may be done in a few hours. Social science is used as ammunition, not
as a method, and the official’s opponents will also use similar ammunition. There
will be many shots fired, but few casualties except the truth (Wilson, 1978, p.
92).

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This strategy certainly exists, and the practice continues: old tactics never go away, new
ones just pile on top like layers of sedimentary rock. But today this is arguably happening in a
quite different register. The ‘facts’ don’t matter a whit; their argument, its performance, does.
The diversity of argument, the ability to place actors into certain ‘positions’ within it, was what
mattered; to the extent one engaged with it, they were given access and legitimacy to those who
scribbled on the whiteboard.
Engagement, too, hardly meant that such engagement was effective even if it countered
arguments expertly. Such research certainly emerged: Frischmann presented a theory of
infrastructure to counter the dominant frame (Frischmann, 2005) that was highly relevant. He,
and van Schewick, in the heat of the debates, struck at Yoo’s contributions point by point in
exactly his terms at the same time Bruce Owen was complaining that advocates of network
neutrality just wouldn’t speak the language (Frischmann & van Schewick, 2007). The problem
was that, much like Nik-Khah found with the spectrum auctions, these viewpoints simply didn’t
have the material buttress at that time to give them perceived pride of place: their potential
sponsors in their realm didn’t yet see the value in supporting such work. Google and other online
giants did not see the need to lobby so aggressively since the broader environment was
commercializing nicely already; they were latecomers, and inept ones to hear the consumer
advocates tell it, when they finally did emerge. The effort by the NCTA to buttress Yoo’s efforts
throughout these years paid off in spades, as the Federal Trade Commission leaned heavily on his
research in their own take—which amount to a punt—on the issue in 2007, as Frischmann and
van Schewick note. In the report, Yoo is cited no less than twenty times, nearly twice as many
times as Wu (Federal Trade Commission, 2007). When van Schewick released her
monumentally-useful, relevant, and intimidating tome Internet Architecture and Innovation
(2010)—which built off of her earlier effort (Barbara van Schewick, 2007), which advocates did
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seek to mobilize— Sascha Meinrath of the New America Foundation told me only partially in
jest, “Where was this ten years ago when I needed it?”
The work of course found its champions in the likes of Free Press; Powell’s brash moves
had the effect of the historical accident that left-leaning funding sources were taking notice of
media policy and were beginning to help feed the growing infrastructure of organizations on the
ground in Washington and beyond to create the space for this discussion. These organizations did
what they could to mobilize such research, but the surprise had left it: the research could be
effectively categorized rather than articulated in surprising ways to the undercurrents now
flowing hard. Some efforts to expand the debate, to render it (like the consumer advocates of the
late 1990s) heterogeneous, emerged from within the Washington discursive community itself as
advocates pushing for network neutrality sought to legitimize new and expanded foundations for
the concept, to ‘transcend’ it (Meinrath, et al., 2010-2011; Meinrath & Pickard, 2008). Yet
engagement of any stripe with these undercurrents needed to be blessed, and usually a firm
‘marker’ of legitimacy is being called before some congressional committee or official FCC en
banc hearing (something quite removed from offering comment with the rabble at the informal
“Town Meetings” the FCC was holding either of their own volition or sponsored by others). Free
Press, for instance, was granted access with the help of Consumer Federation of America and
Consumers’ Union’s willingness to pass on an invitation to appear before a Congressional
committee to debate universal service policies—something with which the organization had not
engaged nor had accumulated much expertise. Nonetheless, with this performance, its reputation
was secured (Free Press, 2006). This presence was buttressed by the production not necessarily so
much of useful materials, but of materials that represented an involvement with the key movers of
debate; given so many of those economists that attacked pro-network neutrality positions made
such grand motions toward always-already-there vibrant competition (based on FCC data), one of
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Free Press’ most effective forays in this regard was the production of two Broadband Reality
Check reports calling into question the FCC’s methodologies for collecting data (still available is
Turner, 2006). White papers were issued, submitted; one learned the ins and outs of submitting
comments into proceedings; in short, one became ensconced within the discourse community of
Washington.
Strikingly, it also led to organizations like Free Press to foment a new, neoliberal-
appropriate style of organization that itself mirrored the thinking of Hayek in the old thought
collective. I think here of the essence of the “double truth”: the constitution of an elite discourse
which moves the works forward, while maintaining a populist-appearing foundation which lead
people to believe that they are participating in meaningful ways. I do not denigrate it: the paradox
is that the populist portion was meaningful even as it could never drive the policy debate in
official settings. (What else it could drive is another matter, outside the diverse bounds within
which policy discourse was trapped, as the Occupy movements sought to illustrate. I still see
hope there.) When the populist base got too ornery, they would seemingly need to be apologized
for in Washington with policymakers. Due exactly to the foundations available in elite discourse
in Washington, and the need to stay relevant in order to maintain one’s place at the table, such
organizations offering what one activist called “retail politics” (as opposed to the “grasstops”
efforts of the late 1990s and early 2000s consumer advocates) needed to maintain the populist
grandeur while operating an entirely different discourse inside. What the populist side did
accomplish was hardly meaningless: it supplied, in lieu of money, the legitimacy of those chasing
the breadcrumbs left by those descendants of the thought-collective of old, all in the hopes that
when it came time to make decisions, that group’s politics might have a say, no matter what they
were arguing. Although, of course, it turned out money was equally important—fighting
Comcast’s malfeasance cost hundreds of thousands of dollars (Ben Scott, personal
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communication, 5 March 2012). Had those not been available for the necessary legal fees and
expertise, no FCC order chastising Comcast would ever have been forthcoming.
To return to Hazlett and Wright’s (2011) offering in the wake of the 2010 Order, they are
absolutely outraged at the FCC’s flimsy defense undergirding a worry that conduits might favor
some content over other. They spend a remarkable portion of their effort debunking the paper the
FCC used as empirical buttress to make their point. They taunt policy activists who seek to
question antitrust as a basis for production of a democratic public sphere:

The FCC and net neutrality proponents often argue that that the fact that antitrust
analysis might not prohibit all use of vertical contracts is a bug rather than a
feature of that regime. …However, that antitrust is not a ‘slam dunk’ can be a
feature as well as a bug. The economic discipline of antitrust requires the
Commission to establish a real theory, garner actual evidence, and convince
judges who do not depend on the regulated industry for future employment. The
rule of reason, as applied to vertical contractual arrangements, represents a
century-old attempt to develop a legal rule aimed at reliably distinguishing
procompetitive from anticompetitive arrangements. [Network neutrality]
proponents argue that the rule of reason is too restrictive. They contend it may
only reach instances of foreclosure or discrimination in which harm to consumers
can be demonstrated, thereby absolving discrimination and other undesirable
conduct that is competitively beneficial for consumers. This description of the
rule of reason is correct; but these features of the rule of reason are consumer
protections that stem from an incremental evolution now over a century old and
are based upon increasing economic knowledge and evidence. These features are
precisely why it has garnered so much support from scholars and commentators
(Hazlett & Wright, 2011, pp. 39-40).

So ensconced are they in their long-running discursive stream, comfortably placed in
institutions of higher learning themselves seeking to appear “relevant” to policy debates by hiring
and promoting those who appear to be making quite the splash in policy matters and FCC dockets
and beyond, supported by interests that see value in their continued production of theory—how
surprised they will be when it becomes clear that they don’t matter in the way in which they once
did anymore by broader systems which continue to expand, which we may consider under the
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name of ‘the sales effort.’ Their function is no longer to churn out truth (even as I am sure they
seek to do so); it is to churn out understanding to bolster a broader mode of being. They will deny
it; and their denials will ring true as they will continue to be treated as if their contributions matter
beyond the material fact of their production. But am I remiss in seeing some degree of
desperation in their efforts? Do I sense the same desperation when Sidak and his colleague Teece
(2010) choose to re-engage the effort years later, but use as proxies for network neutrality
proponents not the arguments of ordinary people speaking for both commercial choice (yet, in the
outskirts, a suspicion of that too) but economists alone like Economides and Hogendorn (who
have produced their own work, often game-theoretic, which overall isn’t so sure a lack of
network neutrality would be a good thing), accusing them all the while of speaking for Google? Is
this a move of continued diversity maintenance—or an easy cheap shot in the face of a feared
defeat on a broad scale?
Sidak, in his 2006 foray, indirectly makes an important point the points exactly toward
broadest problematic advocates need to face as communications policy moves forward into
uncharted territory. He suggests that when MoveOn “initiated a ‘Save the Internet’ campaign” on
May 2, 2006 (it was Free Press; certainly it was a coalition effort in which MoveOn took part too,
but as I have noted, ontic content need not match reality) that requested visitors fill out a form
which would be compiled into a petition to members of Congress, Sidak quotes with glee the
email:

“Congress is now pushing a law that would end the free and open Internet as we
know it. Internet providers like AT&T and Verizon are lobbying Congress hard
to gut Network Neutrality, the Internet’s First Amendment and the key to Internet
freedom. Net Neutrality prevents AT&T from choosing which websites open
most easily for you based on which site pays AT&T more. So Amazon doesn’t
have to outbid Barnes & Noble for the right to work more properly on your
computer” (quoted in Sidak, 2006, p. 457).
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Sidak responds that while he found no evidence that “Amazon or Barnes & Noble (or
both) wrote or authorized this statement by MoveOn.org, it would be naive to think that the two
companies did not learn of the statement soon after its publication on MoveOn’s website.”
Amazon had testified less than one month earlier, Sidak notes, in support of network neutrality
legislation. “The fact that [the outreach] remained on MoveOn.org’s website till at least August
2006 suggests acquiescence by Amazon and Barnes & Noble” (pp. 457-458). His attack is that
this implicitly shows that through “indirect signaling” such companies were seeking, like the
cigarette companies of old who agreed to ban cigarette ads, to ban paid prioritization in some
grand scheme to keep out new entrants that presumably won the lottery or robbed the Federal
Reserve and could afford massive amounts of prioritization that would overcome Amazon and
Barnes & Noble’s likely counterattack.
I see an entirely different concern in revisiting Sidak’s sentiments: the casting of the
option of commercial freedom as freedom itself here. What I see in this message is the discussion
that never occurred, present in its absence. What I see in Amazon’s support for network neutrality
is not some great game playing out but another ambivalent opportunity for alliance that feels like
a debate about the future of a soon-dominant means of communication, yet is not.
Streeter’s concerns about ‘romanticism’ being a weak foundation for policy are actually
under-theorized, it turns out. Besides a cultural ‘libertarian’ ideal, the constructions of knowledge
which undergirded such an ideal (albeit uncomfortably so) are equal cause for concern. In the
battles to come, it is less a battle against romanticism with which we need to contend—itself in no
small part an epiphenomenon of this original thinking—but the intellectual impetus. These battles
we observe in the open access and network neutrality debates are at base neoliberalism surprised
at its own success, suddenly observant of the threat within. A new form has yet to come into
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being. And this form is still malleable, and is perhaps one of the key places that communications
can insert itself, as long as it doesn’t accede to the old order’s terms.

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Conclusion

We are left in a truly ambivalent place: a term, and a tone, that must be taken as the
overarching theme of this dissertation and its object. The journey taken herein was that of a
struggle that was anything but radical except in the manner it was fought: they were struggles of
great consequence even while at the same time they were channeled aboard a particular platform
to other ends entirely. It was an effort to recover two things: first, of the possibilities of turning
neoliberal logics back on themselves which stemmed from their own contradictions; second, of
the limits of this as a strategy, something of great relevance to those who continue to fight these
fights today. It was a view of the reconstitution of the neoliberal drive from below. From a
Commission in Oregon itself intertwined with players fluent in the discursive language of
Washington we found a unique form of resistance regarding a foundational new communications
medium take shape, a struggle that was at once crucial, even as the basic questions which needed
to be asked never found address. It was the burial of such questions which was the true victory for
capital: via the transformation of open access to network neutrality as a conceptual foundation
and all it entailed, here we see in passing how something quite ordinary for its time was seen as
extraordinary.
From Portland to Washington, the strategy was one of positioning oneself between
warring factions of capital so as to gain concessions. This can appear to a critic as entirely
conciliatory: but without examining the logics of the resulting arguments more closely, we miss
important elements worthy of recovery and the warnings they offer. Understanding what
transpired—neoliberalism confronting its own success and finding its own best arguments turned
against itself—requires us to understand this period and this debate as an ambivalent ensemble:
there were radical moves contained in it which are recoverable even though they don’t appear as
such. There was a great need to argue in the terms on offer; what was lacking was not some
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radical current but a lack of acknowledgement of the multiple levels upon which these debates
were being conducted. It is striking that public interest advocates in Portland and Washington
alike suggested what amounted to a continued liberalization of the Web as a solution to problems
stemming from its original liberalization. The correct interpretation of the outcome was less that
neoliberalism won the day than that it required a solution counter to its rhetoric (if not its actual
operation)—close down the networks to competition—to stabilize the neoliberal drive.
No player involved in these debates called for a reversal of the commercial operation of
the Internet itself, even as the desires of these players would for all intents and purposes require
it. However, during the open access argument, these tensions were what provided their seeming
success in keeping the issue alive; its numerous contradictory elements provided the needed
related epistemic dysfunction which kept these battles heterogeneous, rather than diverse. At the
same time, their input was useful to key corporate players as AOL, at least until the connection
was no longer needed. A prominent feature of this landscape was that all were arguing
speculatively about an Internet for which no one save the largest industry players had real data.
Operating as they were under great uncertainty, their tactics made sense. They were able to secure
relatively small (if temporary) victories by poking holes in the seeming self-assuredness of the
neoliberal drive; the dominant narratives of the neoliberal thought-collective were kept in battle
with themselves—or, at the very least, unable to maintain comfortable footing on its most
friendly terrain. The irony of network neutrality as a concept (as it was conceived) would be that
it settled these internal disagreements more cleanly than FCC Chairmen Kennard or Powell could,
creating opportunities for the erasure of those incongruities and their exploit in favor of a unified
narrative which provided for what looked like a disagreement, yet was not: the field of argument
had been transformed into a diverse one where sides could be discerned and thus contained,
channeled toward a unified purpose.
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This is why it is so important to return, one last time, to Wu’s The Master Switch, to
observe how current ‘corruption’ in Washington has been theorized, and how activists need to
conceive of the conflicts to come. In his telling of how the ascendant RCA systematically
thwarted the threat of FM radio technology in the early-mid twentieth century, Wu notes, “The
campaign against FM radio in the 1930s and 1940s is a study in rhetoric as a weapon of industrial
warfare. While it changed over time, the strategy pursued by [RCA head David Sarnoff] and his
allies was to belittle FM, talk it down, and generally promote a conventional wisdom that favored
the AM industry. It shows, as we shall see, that perhaps the most effective way to gain power
over the future is to dictate popular assumptions” (Tim Wu, 2011b, p. 130). Further, “The
government can act only on the basis of what it understands to be established fact. Much of what
is called lobbying must actually be recognized as a campaign to establish, as conventional
wisdom, the ‘right’ facts, whether pertaining to climate change, the advantages of charter schools,
or the ideal technology for broadcasting. Much of the work of Washington lobbyists is simply an
effort to control the conversation surrounding an issue, and new technologies are no exception”
(Tim Wu, 2011b, p. 130). This conception is only partially true.
The need to revisit the arguments swirling around network neutrality as both arguments
themselves and as a broader material formation is perhaps best illustrated by recent experience of
McChesney related in his Digital Disconnect (2013). With journalist John Nichols, in 2010, the
pair investigated the dire state of journalism today in the United States and struck upon a potential
start to a solution, included in their writeup, The Death and Life of American Journalism. This
idea, borrowed from Dean Baker and developed further, was a credit that all taxpayers could
apply any way they wished to some media concern of their choosing, which they would select at
the time of their filing of taxes. McChesney described his interactions with FCC and FTC staffers
who had read the book as the agencies themselves studied the issue. Officials there “[e]ach stated,
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almost immediately upon meeting us, that the citizenship news voucher represented exactly the
sort of thinking that was necessary if there was going to be much journalism going forward”(R.
McChesney, 2013, p. 214). However, he reports with no small sense of frustration, “Regrettably,
this suggested reform, like many others, is not being considered. After acknowledging its value,
the FTC and FCC journalism officials conceded that they could not endorse such a ‘radical’
proposal for fear that political attacks would destroy their work altogether” (p. 214). He offers
two reasons: a still-prevalent (but perhaps fading) sense that ‘subsidies are un-American but
profits are all-American.’ The other reason is that “There is one group that definitively benefits
from a lack of journalism and from information inequality: those who dominate society (R.
McChesney, 2013, pp. 214-215). Later in the volume, he expresses his frustration again: after
outlining a litany of solutions to resolving the media crises of our day—solutions with which I
wholeheartedly agree—he outlines what he sees as the biggest impediment to their enactment:

[N]one of these policy reforms has a chance; only a few even have a hope of
being debated in the corridors of power. …The reason is the corruption of the
policy-making process. In really existing capitalism, the kind Americans actually
experience, wealthy individuals and large corporations have immense political
power that undermines the principles of democracy. Nowhere is this truer than in
communication policy making. Most Americans have no idea that debates on
policy could even exist or what the actual deliberations are, due to an effective
news blackout on the topics, except on occasion in the business press (R.
McChesney, 2013, p. 217).

While reforms won by political organizing made possible by our political system were
true advances,

The electoral system and the judiciary are controlled by big money and
dominated by people who live in gated communities, send their children to
private schools, hang out with other millionaires (unless dealing with servants or
sycophants), and divorce themselves from the reality most people live in.
Traditional recourses for justice are increasingly ineffectual. Instead, all the
previous victories are now in the crosshairs of big business. The fights are now
mostly defensive, despite little popular enthusiasm for many of the rollbacks—a
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striking statement about the deterioration of self-government (R. McChesney,
2013, p. 219).

In addition to the material imbalances which have reshaped the processes by which policy is
drawn, however, another bias—a ‘processing’ bias—needs to be countered at another level
entirely. At the moment where perhaps a different formulation of a ‘network neutrality’ argument
might have granted entree to the popular forces amassed by Free Press and others, instead, an old
set of epistemic commitments of long lineage ‘greased the tracks’ for the entire works to move in
another direction that cast such input aside. Its existence mattered, but only in the same way that
the production of debate regarding network neutrality mattered: that is, as an ambivalently both
crucial and banal affair working from a long established (yet immanently flexible) teleology.
McChesney’s emphasis that popular participation in these matters is necessary is undeniable; yet
here, the debate arguably was over before it began, at least in the dimensions where it mattered, in
dimensions that could have provided a stronger discussion regarding the purpose to which the
Internet and networking technologies should be put. Perhaps there is a way to unlock such
debates again. While numerous advocates expressed frustration at now-departed FCC
Commissioner Michael Copps’ concurrence with the Open Internet Order (as opposed to a dissent
that would have sent it back to the drawing board), his legacy will be that he managed to keep the
issue alive to revisit, perhaps in a new form. Perhaps the key debates could yet be had.
Peak activity by activists between 2005 and 2010 on the matter represents a frantic end to
one set of debates; an expensive one, one that consumed the efforts and labors of an untold
number of people. It served broader imperatives perfectly. This is something quite different from
some claim that these were not progressive or radical in inclination: they were drives of necessity;
their moves were largely predetermined and surprising at one and the same time. To describe
what advocates were doing in Washington as merely puppeting an ‘informationist’ guise is to
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miss the real story. They did what was necessary to gain entrance to those places where the ontic
content of arguments could be set aside and real bargaining might commence; hewing to such a
mission served to neuter the influence of the desires of the broad base of support these groups
helped to stimulate among the public. This is precisely because two debates were happening at
once and was something quite aside from McChesney’s contentions that the levers of policy have
been taken over by monied interests, even as they have, and this dimension is both separate from
yet entangled with the one I seek to outline here.
When I interviewed two research directors of prominent public interest groups in these
debates about the value of research, I received two striking responses. One group had gotten wise
to the whole game and told me that he had stopped bothering to go to the Telecommunications
Policy Research Conference, perhaps the most renowned of the communications policy
conferences. The other told me that it was becoming difficult to tell the real research from the
fake. What they were sensing, and Hazlett and Wright were apparently not, is that the game has
shifted. In one sense, it has changed in that the ontic matter of research has ceased to matter in
our age, even as the knowledge produced by our efforts remains vital. The largest paradox of all,
and the problematic with which activists will need to contend as the next round of debates
surrounding our communications media (and beyond) commence, goes well beyond concerns like
that of Latour’s (2004) that the critique of science may have sown incredulity to it (while certain
interests certainly gain from it and support this outcome); well beyond that all matters in official
policy up to and including knowledge have become up for sale, corrupted (even as it has). It is a
far greater challenge: in consumer society, one had the illusion of choice, yet the choice one made
mattered; in the present day, perhaps, one has the illusion of debate even as the debates matter.
The Mont Pèlerin Society’s end-goal was achieved. The system worked. Materially-buttressed
research in the quest for a discourse wins the day; and the researchers themselves are permitted to
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believe that they had an actual role in the process. They did, just not the one they expect; and
should they decide to matter more fully, to reconstruct a fresh vision of freedom that is more just
than the one solidifying today, they will need to rebuild anew, materially, theoretically, across
disciplines and interests, materially buttressed, from the ground up, with strategies which build
upon yet supersede those of the thought-collective of old.

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Appendix: Necessary evils

Particularly in the early stages of the network neutrality and open access debates, one is
struck that barely a law review on the issue breezes through one’s field of view absent a long
section detailing the operation of networking technologies. There’s generally a reason. For the
benefit of those who perhaps desire clarification of certain technical issues, I offer this appendix
divided into two parts. The first details in brief form the ‘layers’ model of the Internet, from
whence so many metaphors in technology policy was drawn. The second details relevant policy
history that I hope may aid in making sense of some of the more arcane details contained in the
dissertation.

Understanding networking technologies

Understanding networking technologies is key in our discussion less because the
minutiae of technological developments matters in themselves (although they do) but because the
architectural principles by which they have been designed have bled outside their bounds into
regulation, policy, and administration. The concepts of layers and modularity are pivotal in this
regard (modularity in particular is a key point in Cowhey & Aronson, 2009). It is perhaps ironic
that the layers model utilized as a design architecture did not stem from some deeply-researched
technological conception: the original delineation of network ‘layers’ crafted by the International
Organization for Standardization, the Open Systems Interconnection model (OSI), was a quickly
drawn-up bureaucratic organizational working-group structure to organize project work amongst
committees (Goldstein, 2005). The irony is compounded as an apparently hastily-conceived
metaphor birthed to aid in ad-hoc administrative organization was then applied and adapted for
networking technologies, and then again appropriated in the FCC’s Computer Inquiries from the
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1960s onward as a regulatory model: regarding which, more later. The most common version, the
one I describe, varies from their original formulation for the reason that bureaucratic structures do
not necessarily map perfectly on technological structures, a warning to heed.
18

‘Layers,’ in this sense, is entirely metaphorical, a set of modular design principles. Van
Schewick (2010) notes architectures do not represent ‘systems’ themselves, but rather “the
fundamental structure of a complex system during the early stages of its development’: an
architecture must itself be implemented by actual code or policy. It is merely an outline of ‘how
to build’” (Bardara van Schewick, 2010, p. 20). Design principles move us from qualities we
desire to architectures that must then be implemented. Vendors—be they of equipment that
operates aboard internetworked architectures or the owners of the conduit lines themselves are
individually responsible for their implementation. They may or may not comply.
Architecture designed around the notion of modularity, of which the ‘layering’ principles
described above are but one particular variety, has several advantages. The idea is to separate bits
of code necessary to run a system into connected but separate entities that work together,
connected via standard ‘application programming interfaces’ (or APIs). A DVD player, for
instance, connects to a television screen via standardized video connections (a protocol, in our
parlance now) which enables the owner of numerous types of viewing ‘boxes’ to utilize the
device; a television to which a DVD is attached need not understand how the DVD player
functions; it need only be able to read the signals output from the device. Van Schewick calls
‘modular’ architectures adhering to a design principle as holding to a system of high cohesion but
low coupling: each module, for its own operation, depends only upon information contained
within its own particular ‘black box.’ In possessing low coupling with other modules, each one is

18
A thorough introduction to internetworking technologies is beyond the scope of this chapter, but I attempt to draw
some broad lines here. Excellent introductions to the following are contained in Black (2000), Minoli (1999), and van
Schewick (2010).
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free to be developed as to its own internal function, reliant that it will require no more to perform
this function than specific, expected inputs from another module; similarly, it will output
predictable raw materials or results that can similarly be ‘fed’ into other modules that in turn
expect them. Crucially, other modules need not know what goes on inside any other particular
module.
When we delve into the details of how networks (including, but not limited to, the
Internet) ‘internetwork,’ the principle of protocols allowing communication between different
architectural ‘layers’ has been at the core of the ultimate goal: to enable widely-variant
technological interfaces to communicate with each other. Via a series of standards which emerge
via the process of “Requests For Comment” (RFCs) at the Internet Engineering Task Force,
19

vendors have a basis of understanding as to how to construct their equipment such that it will
interoperate with already-existing plant.
Internetworking technologies operate by means of a process called encapsulation,
whereby a data segment (or a PDU – a ‘protocol data unit,’ specific to a particular layer’s
protocols) is swapped through each successive layer of a technology. Each layer attaches a header
consisting of a standardized set of binary ‘bits’ intended to provide information about the payload
contained within this new segment. Each layer N has transactions with the layer above it (‘N+1’)
and the layer below it (‘N-1’) with the data to be transferred put successively into or taken out of
one digital ‘envelope’ after another. To render this more clearly, let us describe the path of an
email, carved up into data segments, through the ‘layer stack.’
Any communication aboard the Internet, via no matter what protocol (be it HTTP or
some other), commences at the content layer, which could be the contents of an email, a picture
on a web page, or something else altogether. This, in turn, exists within some application that

19
This is to name but one prominent setting; other proprietary venues exist as well focusing on particular emergent
protocols and technologies, which at times conflict with the semi-public venues as the IETF.
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resides at the application layer, each of which has a specific way of handling content. The
particular application—in this case, an email client program—is called an entity aboard this layer.
Content and applications comprise the top two “layers” of the common architectural model.
The application now communicates with the transport layer (which can be referred to as
“Layer 4,” counting up from the ‘bottom’ of the layer stack) which includes the Transmission
Control Protocol or User Datagram Protocol (amongst others). As a piece of data is passed to the
transport layer, a header is added to the segment identifying the application for which (or, more
specifically, what ‘port’) its payload is intended, amongst other details, encoded into standard-
recognized ‘bits.’ Utilizing a common metaphor (utilized by van Schewick), this is akin to putting
a letter in an ‘envelope’ and handing it off to the office mail clerk. Just as we have several mail
delivery services, multiple options exist to send this package. TCP is what is called a connection-
oriented protocol in that it seeks a digital “handshake” with the same protocol at the other end of
the connection sought, enabling it to detect errors in transmission as it passes information along.
UDP is connectionless in that it does not pay attention to whether all packets have been received
in order or that they have been confirmed; applications which might find such a feature attractive
include voice over IP, where a missed packet hardly results in loss of communication.
The resulting protocol data unit is passed down to the Internet Protocol or network layer,
which encapsulates the PDU with its own specific information. This layer is often referred to as
“Layer 3.” Internet Protocol is a ‘forwarding’ protocol: that is, it is ‘connectionless,’ much like
UDP discussed above. This is the ‘best effort’ service one hears about often in today’s debates
over network neutrality. Each digital entity communicating via the Internet possesses a unique IP
address—or is supposed to: the present numbering system effectively ‘ran out’ of addresses in the
course of 2011. Barring a systemwide (and long-expected) upgrade to the new IPv6 system,
stopgap measures have been the norm, particularly over residential systems whereby providers
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provide ‘dynamic’ addresses once a user attaches a device to a network as opposed to a
permanently-established ‘static’ address. Packets (the name of the PDU for IP) are forwarded
utilizing routing tables contained in routers; gateway routers perform the functions of “route
discovery” at the edges of networks, generally done dynamically. The implications for dynamic
generation of routing and addressing lead to perverse outcomes: if a government, for instance,
decides to restrict access to a particular website (itself an IP address) within its country and
simply ‘alters’ the routing tables on a DNS server in its country alone so as to forward a browser
somewhere else, this information will eventually percolate across the entire expanse of the
Internet as routing protocols detect the shift and pass this information along, thus restricting
access for far more than those it was intended. Returning to our earlier metaphor, this would be
the equivalent to the office mail clerk handing off the package to the post office driver, who signs
for it and tosses it into the back of his truck, bound for a post office hub.
The IP layer hands off the packet to the data link layer or “Layer 2.” This layer is
responsible for giving end-devices (computers, mobile telephones, tablets, switches) the ability to
transfer information across a communications link. Up to this point, all activities have occurred at
the start-user’s machine. Now the packets are handed off. At this point, the physical connection
between the user’s device and the physical network aboard which the message will travel—
Ethernet, fiber-optic cable, copper wire, or radio waves—is traversed; the PDU is both prepended
and appended at this stage of encapsulation. Once our message within-an-envelope-within-
another-envelope is given both a front-prepending and postpending of coded information, the
packet is now transformed into a frame for transport via the physical medium itself. While all
data frames are headed to particular IP addresses, each packet is given yet another address of
origin, called a MAC (media access control) address which is hard-coded to the device which sent
the frame: each computer of any stripe (a laptop, a network switch connection, a smartphone, and
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so forth) is given a unique MAC address upon construction. The IP address from which the frame
was issued and the address to which it is going remains the same inside the IP envelope clear
across the expanse of the Internet; MAC addresses, or Layer 2 addresses, only apply from one
‘hop’ of the process to the next. Once again with our metaphor, this would be the equivalent of
the driver of the post office truck completing the handoff from the office employee, and taking
the steps necessary so that she can transport the package to the central office for processing and
end-shipment.
At the ‘bottom’ of the ‘layer stack’ is Layer 1 or the physical layer, the physical medium
through which a signal will pass, and the protocols that enable this signal to be transmitted. So
imagine along this frame’s journey that it hits the edge of its home-network at a router; the router
will receive the frame, and in ‘reading’ the information contained in the header of the frame is
able to pass the data across the connection to the router itself, which strips this information,
leaving the IP ‘envelope’ and “passing” the packet up the layer stack. The router then reads the
bits which encapsulate the packet so as to determine how to forward the information further, and
need look no further than the information contained in the headers originally bestowed upon the
packet by the network layer in the original host’s machine. Once determined, the router will re-
encapsulate the packet with information about the next ‘hop’ on its way across the Internet, and
pass the packet back down the layer stack to the Layer 2 (data-link) layer where it is prepended
and appended to become a frame once again, and the new network whisks it along. Note the
effort this took: each time an IP router is reached, a frame needs to have its ‘envelope’ opened,
the next one read, then put back into an envelope and passed along. Given the amount of ‘work’ a
router must do—to open several ‘envelopes,’ consult a routing table, re-encapsulate the
message—even before efforts to prioritize traffic take place, a significant amount of overhead is
accrued.
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At the end-destination, the frame will be passed up the layer stack one by one (and
always one by one), with each protocol (also installed on the end-system reached) ‘reading’ the
bits contained as part of that packet’s encapsulation for information as to where to pass it: the
data link layer reads and removes the prependings and appendings and passes it up to the IP layer;
the IP protocol suite reads the information contained in the prepended information and strips the
packet of this, passing it to the transport layer, which in turn reads and removes the encapsulating
material left by its distant partner at the other end of the network to determine which application
(via a port) to pass the packet to, and then the application performs whatever functions need to be
performed to make the data useful for the end-user. To return to the post office metaphor, it is
simply a reversal of process: the postal service delivers its parcel to the destination office-mail
clerk, who determines which department the parcel needs to go to, where another worker reads
other information on it to determine which worker it is intended for, and then the worker herself
removes the outside packaging to the original message. This is an oversimplified story to be sure:
for instance, an ISP, given limited IP addresses, will perform a ‘translation’ function when it
receives a packet to ensure the appropriate end-user receives the content; in an office setting, a
translation takes place matching IP addresses to MAC addresses of specific machines, with
different networking topologies utilizing a differing process of passing information along.
Most significant is that within this architectural model, peer layers are intended to
‘speak’ with each other, and no others: the Layer 2 frame is meant for Layer 2 of the next link; IP
layer information is intended for the next device or router’s IP layer; a transport-layer function is
intended for the companion machine’s transport-layer; an email is meant to be passed to another
email client. In our layers framework, ‘higher’ layers (content, applications) can peek or poke
‘down’ the layer stack for various purposes, but by design, the ‘lower’ layers are intended to
refrain from opening all of the envelopes they pass: there is no need for an entity at the data link
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layer to ‘peek’ at the information contained within the segment comprising the encapsulated
application content. That is, there is intended to be no change to the payload deep inside the
envelopes, and lower-layer protocols are able to make assumptions about the segment being
passed to them from higher layers, but not the other way around (Bardara van Schewick, 2010,
pp. 54-56). (The post office is not supposed to read your mail—even as exceptions to this
regimen do exist.) Upper layers can reach as low as the Internet protocol layer to ‘ask questions’
of it, but generally no lower. There are advantages and disadvantages to such an architecture, of
course.
With all of this in mind, network neutrality as a concept reflected a greater or lesser
amount of semantic content driven by the notion of how these protocols operate, in specific
terms. “Pinch points” can occur at or between any layer of the stack, and in discussing broadband
discrimination issues over the public Internet, the technologies employed to do so need to be
defined in their specificity. Certain ‘choke points’ reflect a true breach of what has been known as
the “end to end principle”
20
whereas others, from a technologist’s standpoint, would not. “Quality
of service” guarantees—such as ensuring low latency (preventing delays in payload passing),
throughput (enhanced speed), or low jitter (variable speeds in the arrival of packets)—can be
obtained at the data link layer via digital switches or at the network layer via firmware within a
router. Depending on how network neutrality was defined at a given time, these could or could
not constitute a breach. The questions which emerge in this dimension include, where in the

20
A significant element of van Schewick’s work is that there have effectively been not one but two ‘end-to-end’
principles. They are themselves not antidiscrimination principles in themselves but, rather, particular design
architectures for programmers which apply certain conditions to the functionalities of one layer versus another. In the
process of the debates that ensued over the last decade, both versions have been misinterpreted or misused.
“Nondiscrimination” is an effect of following a particular version of the end-to-end principle, rather than an overt
objective of the principle itself, as van Schewick is at pains to point out. Breach of the ‘end to end principle’ in its
broadest form is a design decision, importantly not necessarily designed to promote discrimination, although it can be
put to such a purpose.
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network is discrimination being permitted to take place? Under what circumstance? What type of
content is favored?
These dimensions, of course, are inseparable from politics. An argument that makes the
claim that a regulation must determine how a particular technology should operate would then be
some amalgam of economic, technological, and political elements. But a further point to be taken
is that regulatory regimes or proposals that choose to appropriate the network-architecture
metaphor will inevitably escape the metaphor’s bounds. By the same token, the Internet’s layered
architecture (even the word ‘layer’ itself!) is only mentioned once in the Notice of Proposed
Rulemaking for the Open Internet proceeding—and the NPRM was far more stringent in its
proposed requirements than the end result on end carriers. And whereas the NPRM does feature
the more well-known Carterfone decision as ‘opening up the edge of the network,’ it largely
skips over the episode between passage of the 1996 Telecommunications Act and the
commencement of the FCC’s loaded telling of the Commission’s commitment to ‘openness.’ This
part of the story is told below.

The policy prelude to our tale

Several key processes preceded the initial conceptualization of the notion of ‘network
neutrality’ in 2003 by Wu. We explore a number of facets here: first, the Computer Inquiries
which provided the regulatory foundation for the operations of these networks; second, the
implications of the Telecommunications Act of 1996, as a new set of policy imperatives came to
the fore—namely, a new objective of a ‘competitive’ communications environment for
telecommunications and ‘advanced telecommunications services.’
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Before beginning, I note that this section relies heavily on two authors: regarding the
Computer Inquiries, I rely on Robert Cannon’s 2003 article “The Legacy of the Federal
Communications Commission Computer Inquiries;” regarding the story of the
Telecommunications Act and the FCC’s travails in implementing it, I lean heavily on
Nuechterlein and Weiser’s account from their 2005 Digital Crossroads. This is by design, as this
section intends to fulfill two ends. First, it seeks to provide a brief overview of the regulatory
politics surrounding various types of wires, be they copper, coaxial cable, or fiber-optic. Second,
it is to illustrate the way these stories are told from a policy perspective. I follow here in taking
seriously Horwitz’s (1989) lead in distinguishing legal discourse as semi-autonomous from that
of the economic, housing its own concepts and flow, as entwined as it may be with the economic.
Few of their details are really called into question; it is largely the framing that matters. They both
describe moves to open up swaths of networks to competition so as to fulfill certain goals.
21

The legacy of the Computer Inquiries. The three Computer Inquiries conducted by the
Federal Communications Commission—the first launched in 1966; the second, in 1976; and the
third, in 1985—accomplished three things key to the story of network neutrality. First, largely at
the behest of business users of telecommunications networks (Schiller, 2007), the Commission
established a field of ‘enhanced services’ separate and on top of ‘basic services’ still subject to
‘common carrier’ regulation. This was a profound development and is one of the key drivers of
the creation of the Internet. Second, the Inquiries would establish a ‘layers model’ of
telecommunications regulation—and here we come nearly full circle: a model quickly established

21
It is curious that Cannon’s account remains oddly controversial in certain quarters. One can safely that this is the
result of propaganda campaigns by incumbent operators seeking certain policy ends and not from disagreement with
the points Cannon makes. From his perch as a longtime member of the FCC’s Office of Strategic Planning and Policy
Analysis, his goal of the piece was to debunk notions that the ‘Internet had never been regulated’ or more broadly that
government actors had nothing to do with its development. The agitprop value of the “Internet has never been
regulated” line was simply too delicious to resist throughout the 2000s for powerful actors. Cannon is even taking on a
few of his own colleagues in this regard at the time of publication.
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to aid in the organization of tasks, a bureaucratic need, which in turn was mapped onto a network
architecture design principle; now to policy itself. Third, the last Inquiry would sow the seeds for
the Telecommunications Act of 1996.
Cannon (2003) was at pains to note the proactive role the FCC took in fomenting the
developments of the Internet, and in particular, fashioning regulation of data which would flow
over telecommunications networks not by technology (the first Inquiry had established categories
of “basic voice,” “basic non-voice,” and “enhanced services”) and instead by type of service,
doing so by adopting the layers model which had been applied to communications internetworks:
an implicit “Layered Model of Regulation.” “The physical network, or layers 1 and 2 of the OSI
reference model (representing ‘physical’ and ‘data link’ layers) are ‘basic services’ that reside in
Title II of the Communications Act; the “logical network” (layers 3 and 4 of the OSI model)
comprises TCP/IP provisioned by ISPs who “directly and intentionally [benefit] from the
Computer Inquiry safeguards” (p. 195). Finally, above the logical layer are “services,
applications, and content provisioned by applications service providers, content providers, and a
host of other players, all generally removed from communication regulation” (Cannon, 2003, p.
195).
Most significantly, these were overt concerns over markets, not technological
functionality. “These market boundaries permit communications regulation, where necessary, to
be particularly successful,” Cannon notes;

“By conceptualizing the policy as layers, the analyst is capable of grouping and
segregating issues. Issues related to the physical network layer (i.e., common
carrier regulation, spectrum policy, cable franchises) are different from those of
the logical layer (i.e., intellectual property, gambling, taxation, libel). Thus, by
conceptualizing the policy as layers, the analyst is enabled to identify markets,
clarify issues, create boundary regulations that are effective, and, in so doing,
target solutions where issues reside without interfering with other industries and
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opportunities. The Layered Model is a market policy mapped onto a technical
conception” (Cannon, 2003, p. 195).

Mimicking a modular network architecture’s intended design principles, Cannon
continues, “These reference models layer different protocols which enable the provisioning of
different services. Each layer is separate from the one above and the one below. The degree of
separation is sufficiently complete so that the service provisioned at one layer can be provisioned
by one provider while the service provisioned at another layer can be serviced by another
provider” (p. 195). The vision that the Commission had in Computer II was one of “enhanced
service providers (‘ESPs’) acquiring basic services, adding enhanced services, and then selling
the bundled service to consumers on a resale basis” (p. 188). The reason for their freedom from
common carrier requirements—announcing tariffs for service and taking all comers at said rates,
among other obligations—stemmed from this sector’s presumed competitive state. Determining
what could be classified as ‘enhanced services’ involved three prongs:

“The Commission has articulated a three-prong test for enhanced services. It
‘employs computer processing applications that: (1) act on the format, content,
code, protocol or similar aspects of a subscriber’s transmitted information; (2)
provide the subscriber additional, different, or restructured information; or (3)
involve subscriber interaction with stored information.’ Enhanced services do not
facilitate the basic service; they alter the fundamental character of the basic
service (instead, while the basic service remains the same, the enhanced service
is layered on top, creating a new service for the edge user). Anything that takes
the basic service and uses computer processing to alter that service is enhanced.”
(Cannon, 2003, pp. 187, citations omitted).

Computer III moved from a ‘separation’ model of basic services and enhanced services
by market to a prototype ‘unbundling’ scheme of CEIs (“Comparatively Efficient
Interconnections”) and ONAs (“Open Network Architectures”). Whereas the Bell Operating
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Companies (BOCs), following their creation after the AT&T divestiture, had been disallowed
from providing ‘enhanced services’ without structural separation requirements
22
, this changed
the landscape entirely, allowing them to provide these services once again. The decision to allow
Bell Operating Companies to enter the enhanced services market without structural separation
requirements meant they had to publish “Comparatively Efficient Interconnection” statements—
what services they were offering their own ESP and which they would offer to others. This was a
first step toward the Open Network Architecture, where BOCs would break down their networks
into basic units to which ESPs could gain access to provide service. During the early 1990s, the
Ninth Circuit Court vacated and remanded the results of the Inquiry, worried that “ONA
unbundling, as implemented, failed to prevent the BOCs from engaging in discrimination against
competing [enhanced service providers] in providing access to basic services” (quoted in Cannon,
2003, p. 202). The Commission would interpret this as vacating only the ONA rules, not the CEI
ones, so they allowed BOCs to provide enhanced services as long as they complied with these.
Given the tenor of debates today surrounding network neutrality, it is almost comical to note that
in responding to the Commercial Internet eXchange (CIX)’s objection that the ONA regime
created difficult enforcement issues, the FCC responded,

“We believe that competitive ISPs will themselves monitor CEI compliance
vigilantly, and will call the Commission’s attention to any failure by a BOC to
follow through on its CEI responsibilities. ...The Commission will not hesitate to
use its enforcement authority, including the Accelerated Docket or revised
complaint procedures, to review and adjudicate allegations that a BOC is falling
short of fulfilling any of its CEI obligations” (Computer III Order 1999, quoted
in Cannon, 2003, p. 204).

22
“Structural separation” requirements force an entity, like a Bell Operating Company, to set up entirely separate
businesses—one to provide the basic service, one to provide the enhanced service. The business operating enhanced
services would purchase necessary access to basic services as if from any other common carrier. “Functional
separation” requirements are less severe, but continue to involve forcing one entity to have two separate internal
divisions that operate on similar terms.
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Cannon notes the oddities contained in this arrangement—the kind of ‘enforcement
issues’ the Commercial Internet eXchange were worried about: an unregulated industry is tasked
with monitoring a regulated one; second, “small companies are asked to watch the largest
corporations in the United States”; third, “[service providers] are placed in a position of filing
complaints against their sole supplier of a crucial facility”; fourth, “contrary to normal
jurisprudence, the party that lacks the information has the burden of [bringing a complaint]
(normally, all things being equal, the party with the information has the burden of [bringing a
complaint]—in this case, the burden is on he ISPs, because the information is held by the BOCs)”
(Cannon, 2003, p. 204).

The Telecommunications Act of 1996 borrows the network element schema in defining a
framework of ‘unbundling’ while maintaining different technologies within different Titles of the
Act, each with specific requirements.
23
The U.S. 1996 Telecommunications Act took the ideas
contained in the third Computer Inquiry, while making numerous compromises to appease the
likes of newly-defined categories of telecommunications provider, while also supplying a set of
awkward definitions. In the years leading up to 1996, the main disputes concerned “the terms on
which...competitive access providers could demand interconnection at an incumbent’s central
office when scale economies did not permit them to lay their own cables all the way to each
individual end user” (Nuechterlein & Weiser, 2005, p. 66); this led in the early 1990s to the
FCC’s Expanded Interconnection Orders that entitled ‘collocation’ of competitors’ equipment in
the incumbent’s central office, sparking legal action extending up through 1996 when Congress
wrote into law such colocation rights. The legal struggles continued nonetheless until courts in

23
Once again, I note here that this section draws heavily on the (heroically even-handed) efforts of Nuechterlein and
Weiser (2005), except where noted.
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2002 upheld FCC rules delineating the limits of these rights (Nuechterlein & Weiser, 2005, p.
66).
The Act itself attempted to open local telephony to competition, hoping that eventually
with increased technical capacity and increased traffic, there would eventually emerge
multimodal, multiprovider competition, even down to ‘the last mile’—the wire which physically
connected residential premises to the phone company’s central office. The bill specifically
instituted competition as a regulatory goal as well as “the deployment on a reasonable and timely
basis of advanced telecommunications capability to all Americans;” it stipulates that it was
national policy to “promote the continued development of the Internet,” “to preserve the vibrant
and competitive free market that presently exists for the Internet,” and “to encourage the
development of technologies which maximize user control over what information is received by
individuals, families, and schools who use the Internet and other interactive computer services.”
The regulatory tools it implemented to accomplish these goals included the elimination of
regulatory barriers to entry to telecommunications services.
The Act attempted to deal simultaneously with network effects, scale economies, and
monopoly leveraging which lingered after years of localities having no real choice in telephone
provider for local service (Nuechterlein & Weiser, 2005, pp. 74-75). The largest share of
controversy fell on the specified obligations of ILECs (Incumbent Local Exchange Carriers, the
company in a locale who owned the single telephone line to local residences and enterprises; Bell
Operating Companies or BOCs comprised the largest of these). These companies were required to
provide nondiscriminatory interconnection to other providers, often via co-located equipment
housed in the company’s central office but owned by a competing network. In addressing the
advantages legacy local players held from their scale economies due to years of monopoly,
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CLECs (Competitive Local Exchange Carriers)
24
were granted rights to lease capacity from
‘elements’ of the incumbent network, the components which were required for a signal to reach
from the company’s central office to an end-user, as would be defined by the FCC. In addition,
competitors had the option to forgo picking specific elements for lease, instead being granted
rights to resell incumbents’ retail services entirely at discounted rates, allowing a competitor
service to “build up customer loyalty, develop an established base of customers for a particular
geographic area, and only then—when the economies of scale are great enough—serve these
customers using at least some facilities of its own. MCI followed this strategy while building its
long distance business in the 1970s and 1980s” (Nuechterlein & Weiser, 2005, p. 85). Leasing
network elements was often more favorable to competitors, as the FCC, in cooperation with state
Public Utility Commissions, set rates lower than what a phone company would likely offer for
wholesale access. Also included in the new rules were provisions to allow the Bells—forced to
provide only local service under terms of the old AT&T divestiture—to re-enter the long-distance
market, once they had demonstrated that a condition of ‘effective competition’ existed in their
home markets via a checklist of requirements. As Nuechterlein and Weiser describe it, it was now
a race between the Bells and the long-distance operators to bundle local and long distance
services. The compromise that wrought these contradictory provisions would result in no small
amount of legal wrangling following the bill’s passage despite, of course, these same players
stated support for this bill pre-passage.
Further complicating matters in the bill was a tangle of definitions whose application and
reinterpretation would form the foundation of much of entire quandary networked services faced,
starting in 2002: ‘telecommunication services’ were equivalent to ‘common carriers,’ which, as

24
The most prominent CLECs were the long distance companies, such as AT&T and MCI. The most prominent ILECs
were the “Baby Bells,” split from AT&T as part of the Department of Justice’s 1984 divestiture. GTE was also
considered an ILEC.
307
opposed to ‘private carriers,’ “face regulatory obligations to act as common carriers whether they
would like to do so in a particular context or not” (Nuechterlein & Weiser, 2005, p. 76). These
would be distinct from “telecommunications” (the service which underlay “telecommunication
services” on offer) and “information services” which map onto the ‘enhanced services’ as defined
by the Federal Communications Commission during the Computer Inquiries. These distinctions
would have everything to do with eventual decisions by the FCC regarding whether cable
networks offering broadband services were providing some form of telecommunications
component, thus potentially resulting in a shift in how they would be regulated.
The Act left the details of how to implement these laws to the Federal Communications
Commission. Each attempt it made would be rebuffed, resulting in no small amount of
‘regulatory uncertainty’ in the years to follow. The FCC’s first attempt, the Local Competition
Order under Chairman Reed Hundt, was remarkably permissive for competitors, creating the
“UNE-P” (Unbundled Network Element Platform) governed by an ‘impairment standard’ that
assumed, importantly, that without access to all of an extensive list of elements, a competitor did
not stand a chance of eventually providing reasonable competition to the ILEC. Virtually all
elements of an incumbent’s network were rendered eligible at the favorable unbundled rate,
which did not take into account the amount of money an incumbent had spent on plant, instead
taking into account what an ‘efficient’ provider at that moment would have to spend. The
difference was substantial. Incumbents throughout the late 1990s dispensed with no small amount
of effort in relieving themselves of such restrictions, despite the fact that even with them, they
were better off than under continued enforcement of the Consent Decree stemming from the
breakup of AT&T over a decade prior.
The strategy which bore fruit for incumbents in dismantling the new regime involved a
sustained attack on the FCC’s ‘impairment standard.’ The Supreme Court sent the Local
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Competition Order back on remand, demanding that while its permissiveness was not at issue, but
that a better rationale for such policies would be necessary to buttress its claims for its generous
findings, should the FCC continue to decide they were appropriate. When the FCC returned a
new Order in 1999 which took away certain ‘elements’ from the list of ‘network elements’ to be
offered at favorable unbundled rates (including obligations to provide ‘operator services’ and
‘directory assistance’) but added others not part of the original platform (including ‘dark fiber,’ or
fiber-optic strands not yet ‘lit’; and the ‘high frequency portion’ of the DSL loop in the last mile
over which higher-speed broadband services could be rendered), this Order faced challenge in the
D.C. Circuit Court of Appeals, the default setting for challenges to the Commission (Nuechterlein
& Weiser, 2005, p. 101). This challenge, brought by the United States Telecommunications
Association, would begin a series of fights in which D.C. Circuit Court would, piece by piece,
play the major role in dismantling the unbundling regime.
The FCC’s second attempt to appease the courts was thwarted by the Circuit for being
still too generous to competitors in 2002: specifically, it accused the FCC of seeing unbundling as
the end in itself, still providing inadequate justification for the terms it offered. Once again, the
FCC’s Order was sent back ‘on remand’ for a third go. This third attempt to mollify the courts
was undertaken by a now-Republican commission headed by Chairman Michael Powell, who
responded with the Triennial Review in 2003. It was, by all accounts, a procedural mess:
announced months ahead of its issuance, and including the uncommon feature of a dissent from
the Chairman himself. In addressing circuit-switched telephony (that is, analog telephony), it
preserved access of competitors to incumbents’ switches not because they were significant
elements of emergent infrastructure subject to monopoly control, but because of a fear of a logic
of how to accomplish ‘hot cuts’ whose high costs would need to be determined by local state
Public Utility Commissions; the ‘impairment standard’ was revised to a determination of whether
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“all potential revenues from entering a market exceed the costs of entry, taking into consideration
any countervailing advantages that a new entrant may have” (Nuechterlein & Weiser, 2005, p.
102). The two democratic commissioners, Michael Copps and Jonathan Adelstein, in an historical
irony, had managed to save competitor access to switches (an old technology) via a high-stakes
trade with Kevin Martin, a renegade republican vote on this Order, to remove the high-frequency
portion of copper loops which provided the conduit for DSL from the list of unbundled elements.
Let us be clear in what that exchange meant: in exchange for preserving competitor access to
technologies that were being phased out in favor of Internet Protocol, the democrats gave up
competitor access to new technologies, giving incumbents almost assured exclusive control over
that element.
It is key to remember that when it comes to DSL, ISPs benefitted from unbundling only
indirectly. The Telecommunications Act strictly restricted unbundling to facilities, not services:
to make the difference clear, in the dialup world, a home-user seeking to connect to the Internet
placed a phone call via her modem to the ISP service, who then provided access to the network of
networks. This ISP would require ‘backhaul’ to the long-line Internet trunks, and it would lease
these (via an arrangement that is loosely and over-grandiosely termed “special access”—more on
that in a moment), but the point was that for an ISP to reach a user, that user was the one
requesting their services over a line that the user was paying for, and it did not require the ISP to
have direct access to that user’s premises. The situation changes with DSL high(er) speed
services. DSL utilizes the ‘high frequency’ portion of the copper line that is also used for phone
services. The Telecom Act restricts competitor leasing of lines to be by providers of
telecommunications carriers for telecommunications services, and since ISPs are outside that
class, “they benefit from any … leasing rights only indirectly, by purchasing telecommunications
services from CLECs that exercise those rights directly” (Nuechterlein & Weiser, 2005, p. 181).
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In this instance, an entirely different regime—a policy called ‘open access,’ or ‘multiple-ISP
access’—would be necessary to allow a competitor ISP to lease access to the service rather than
lease outright the entire facility.
More significant then in terms of the broadband world were the implications for “special
access” contained in the Triennial Review. Special access is the ‘wholesale’ portion of
telecommunications services: these are generally high-speed lines that are bought with the intent
to serve as dedicated access to the long-haul trunks of telecommunications infrastructure. If one is
trying to start a rural wireless telephone service, for instance, one needs a way to carry voice calls
back to the broader Internet (“backhaul”) so as to get the call to its destination: a company would
need to purchase “special access” in order to do so. Businesses with heavy networking needs may
also purchase such high-speed access as backup to an alternative connection. A key question
addressed by the Review was: is ‘special access’ a ‘network element’ or not? Should competitors
be allowed to supply a business over a leased high-speed line with connectivity to the broader
Internet at the more generous ‘unbundling’ rate, or should it be considered simple resale at less
favorable rates for competitors? The FCC removed the highest-capacity lines from the list of
unbundled elements, but left a presumption of ‘impairment’ for all remaining transport and loop
facilities, delegating to state commissions the question of whether potential competitors within
their jurisdictions were ‘not impaired.’ Further, in an attempt to stimulate the rollout of next-
generation fiber optic cable by ‘overbuilders’ to premises already served by regular copper wires,
the FCC released incumbents from having to share broadband access to new fiber facilities at all
(they could lease it, of course). Incumbents would be able to effectively eliminate any opportunity
for competitors to gain access to a household by building fiber close to the household (which did
not need to be shared) but finish with the old copper technology—what competitor would lease
the connection from the house to the curb and no further? The Commission’s reasoning included
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that the impairment of CLEC business plans need not be the only consideration in deciding to
‘unbundle’ fiber; given cable access usually existed at end-premises, an end-user would at least
have the ILEC and cable.
With the eventual issuance of the Triennial Review vested interests sought to sue the
Commission yet again; a number of cases were consolidated at the D. C. Circuit. The Court
remanded the Order yet again to the Commission on one procedural ground and one substantive
one in a decision shorthanded as USTC II in 2004 [GRAB CITE]. To address the previous issue
of inadequate grounding for the FCC’s impairment standard, the FCC had decided to farm out
certain data collection duties to state Public Utility Commissions to determine the degree of
impairment suffered on all elements, not just ‘special access.’ The Court tossed out this reasoning
based on a concern that the FCC had not been explicitly given the authority to delegate such data
collection and determinations to any body outside of itself. But then the Court hamstrung the
Commission further by reversing the presumption of impairment which had guided the FCC up to
this point: given it could no longer delegate its measurement authority to state commissions and
could not determine if some areas were not impaired, the general presumption would now be that
a competitor was not impaired by default unless the FCC could find otherwise. Perhaps even
bolder, the Court called ILEC/cable competition “the persistence of substantial competition”
(Nuechterlein & Weiser, 2005, p. 188), and declared that intermodal competition of that sort was
valid to consider in determining ‘impairment’ status, since the Court noted that the Telecom Act
stated that impairment is merely the start of the analysis. So even if a Commission found
impairment in a locale, other factors could still negate the analysis. This was such an extreme act
of “legislating from the bench” that longtime network analysts calling this conclusion “based on a
frankly incomplete reading of the record” (Goldstein, 2005, p. 164); the Court even “dismissed
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[unbundled] pricing’s necessity as a whole with the amazing tag line, ‘In competitive markets, an
ILEC can’t be used as a piñata’” (quoted in Goldstein, p. 164).
To the further amazement of observers, despite earlier cases indicating that the Supreme
Court would have overturned the D.C. Circuit’s ruling, Powell did not challenge the decision.
Thus by 2004, a year after the network neutrality qua the term itself emerged in a law journal, the
‘unbundling’ scheme was all but dead in the United States, at least as far as ‘next generation
networks’ were concerned.

Cable, on the other hand, remained sequestered in its own Title of the Communications
Act. If policy choices leading up to 2003 on the telecommunications side were largely aimed at
enacting the interpretation of the 1996 Act with an eye toward fomenting competition in
telecommunications, then cable, increasingly offering similar services, still remained closed for
such competition. The legacy of piecemeal legislation handling new technologies had resulted in
a still-maintained division of law not by function, but by technology. This is a problem that the
FCC early on was grappling with, as evidenced by the release of Barbara Esbin’s (1998) inquiry.
The Telecommunications Act reaffirmed the legacy model of monopoly franchises to be
negotiated locally with each cable provider. These local expressions of power (to the extent they
were truly exercised) enabled the controversy around open access that forms the core of the story
this dissertation tells.
We return briefly to 2003: contained in Cannon’s documentation of the Computer
Inquiries is such an overriding source of optimism which is palpable throughout:

“There is a tendency of regulators to automatically impose legacy regulation on
new services that appear similar to, substitutes of, or threats to traditional
services. The policymaker must always ask why. Why impose legacy regulation
on the new service? By framing the question properly, the policymaker can gain
313
better answers. By framing the question in terms of the layered model, that is, in
terms of identifiable markets within communications industries, it helps avoid a
mushed view of communications where the difference between applications and
the physical network cannot be perceived. If, for example, telephony is
uncoupled from the physical network and the old monopoly market, and is now
provisioned in the highly competitive applications market, what implications
does that have for policy?” (Cannon, 2003, p. 205).

The Telecommunications Act, combined with the Computer Inquiries, commenced
drawing dividing-lines between certain ‘zones’ of activity, with the zones crucially defined via
markets and driven by overriding logics geared toward fomenting some notion of ‘competition’—
local exchange versus long distance; enhanced services vs. basic services; information services
vs. telecommunications services. The law also speaks of networks while largely ignoring how
those networks operate. While the language of ‘competition’ remained constant across
Commissions following passage of the Telecommunications Act, it is certainly arguable that the
entities fomenting competition had a funny view on the notion, particularly as efforts from 2002
onward, the Commission progressively snuffed out any element of ISP competition over one
conduit after another.

314
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