On the eve of the Great Depression, just three holding companies generated nearly half of the electricity in the United States.1 These largely unregulated companies offered electricity to big cities and wealthy customers at inflated prices while passing over large swaths of the country that were deemed insufficiently profitable for them to service. Although considered a novel luxury at the turn of the century, by the 1920s electricity was an essential part of participating in modern economic and political life. Franklin Delano Roosevelt made public power a central plank of his successful 1932 presidential campaign, asserting that private utilities had “selfish purposes” and that “never shall the federal government part with its sovereignty or with its control of its power resources while I’m president of the United States.”2 Roosevelt followed through on his promise. Once elected, he established the Tennessee Valley Authority, a federally owned utility tasked with bringing affordable electricity to seven states in the rural South. What we are seeing today with broadband internet is in many ways reminiscent of the 1930s. What we need is a New Deal for the digital age.
At a time in which even modest protections that prevent corporations from usurping the public interest are being jettisoned, we must dare to think boldly about the future of our broadband infrastructure. The time for tinkering is over. Net neutrality is a necessary but insufficient policy for creating a more democratic internet. It is designed to curb the abuses of large internet service providers, but it does not fundamentally challenge their market power. Nor does it directly confront ongoing inequalities in internet access. If we are to rescue the internet’s democratic potential from the grip of the broadband cartel, net neutrality must be one part of a much more ambitious political program.
So what (else) is to be done? What policies are capable of reining in corporate control of the internet and opening up public access to this critical infrastructure? We need a more comprehensive policy plan for a democratic internet. While some of this policy agenda may seem ambitious, we take heart in the vibrant activism in support of net neutrality in recent years as well as in the public’s growing concern over Facebook’s and Google’s business practices. Indeed, the public’s engagement with media and communication policy issues is unprecedented. A fertile opportunity to democratize the internet has opened before us. We must not squander it.
Net neutrality addresses a problem that lies downstream from a more fundamental issue: the political and economic power of the broadband cartel. A more democratic internet is possible, but only if we confront the monopoly power of ISPs. There are three general strategies for bringing them to heel: breaking up the broadband cartel, imposing strict public interest obligations on them, and building publicly owned alternatives.3 These three strategies need not be pursued in isolation of one another—each can form a part of a multipronged assault on the broadband cartel’s control over the nation’s internet infrastructure.
The first approach to weakening the grip of the broadband cartel over our digital infrastructure is the anti-monopoly option. In recent years, a fast-growing anti-monopoly movement in the United States has offered a piercing critique of the extreme and growing concentration in most sectors of the American economy.4 In the context of broadband internet markets, the anti-monopoly option prescribes resuscitating long-dormant antitrust legislation in order to break up (horizontally and vertically) large ISPs such as Comcast into smaller units—or at least prevent them from accruing even more economic power than they already have by blocking future mergers and acquisitions. The objective is to create a much more decentralized and competitive economic environment in which numerous small and medium-sized ISPs vigorously compete for customers on the basis of price, speed, and quality of service.
While it is an essential tool to have at our disposal to discipline or prevent monopolies, one limitation of the antitrust approach is that it can fail to adequately address commercial excesses in America’s communication systems. The ire of anti-monopoly activists is often directed more at the lack of competition that ISPs face and less toward the commercial values underpinning corporate power. In this approach, critical questions about how the internet should be governed are still largely delegated to the market.
A second approach is to impose strict public interest regulations on ISPs.5 Monopolies—especially natural monopolies—are typically obliged to abide by a social contract in which they are required to provide for critical social needs in exchange for the right to operate at scale. Telephone and cable firms have gradually been allowed to shed these responsibilities to the public as a result of the liberalization of the telecommunications industry over the last three decades. Yet it is important to remember that ISPs are not granting us access to some private luxury; they are instead merely temporary managers of a critical infrastructure that provides a public service we all require. We as a society grant them the privilege to profit from this public good, but only if they continue to serve us accordingly. In many ways, net neutrality protections fall within this category of public interest regulation. A long history of policy battles demonstrates that communication monopolies have been very successful in weakening these regulations over time.
The third strategy is to create truly public alternatives to corporate internet service providers. Although opponents of municipal broadband like Republican FCC commissioner Michael O’Rielly frame these initiatives as inimical to the American free market tradition—calling it “a perverse form of socialism”—there is also a long history in America of managing essential utilities such as water, sewage, and electricity at the municipal level.6 As we saw in chapter 1, previous generations of Americans advocated for municipalizing and nationalizing telecommunication services. Similarly, Franklin Delano Roosevelt argued that “where a community … is not satisfied with the service rendered or the rates charged by the private utility, it has the undeniable basic right … to set up, after a fair referendum to its voters has been had, its own governmentally owned and operated service.” Roosevelt characterized this right as “a ‘birch rod’ in the cupboard to be taken out and used only when the ‘child’ gets beyond the point where a mere scolding does no good.”7
Compared with most other leading democracies, the United States is weak in all three areas discussed above: breaking up monopolies, regulating monopolies, and creating public alternatives. Nonetheless, this last approach offers, in our view, the best chance to circumvent the stranglehold of corporate monopolies over last-mile access to the internet. The “public option” is worth closer attention.
Following Roosevelt’s quite violent metaphor, public ownership of internet infrastructure should be seen as more than a “birch rod”—an internet service provider of last resort that is used to discipline out-of-control ISPs into offering more competitive pricing, upgrading their infrastructure, or expanding their service area. In fact, publicly owned and managed internet service is more than a threat to the broadband cartel: it can be a viable alternative to it. Removing the internet from the commercial market is the most surefire way of guaranteeing that the public interest is privileged above corporate profits. Indeed, this is traditionally how public goods—such as education—are treated in democratic societies. These services are too precious to leave entirely to the market.
The internet can be delivered like other publicly owned services. In recent years, many cities and towns across the country have taken it upon themselves to build their own municipal broadband networks. When not felled by the plague of austerity, motivated municipalities are often more capable of mustering the capital needed to construct a next-generation broadband network than independent ISPs. Today, more than 750 communities in the United States offer publicly owned cable or fiber to the home (FTTH) broadband networks. FTTH networks provide much higher download and upload speeds than internet provided over coaxial or copper telephone wires, traveling at about 70 percent of the speed of light.8
Frustrated with the unwillingness of Comcast and AT&T to upgrade their dilapidated infrastructure or to expand their service to less profitable neighborhoods, the city of Chattanooga, Tennessee, took the bold step of constructing a FTTH network in 2009. The city operates the network through its electrical company, which offers customers a one gigabyte per second internet connection and television service for $70 a month. By almost any measure, Chattanooga’s experiment has been an unmitigated success: according to a 2018 survey conducted by Consumer Reports, Chattanooga’s municipal broadband network is the top-rated internet service provider operating in the country.9 Similar municipal broadband initiatives in places like Santa Monica, California, and Sandy, Oregon, have also been immensely successful. In general, community-owned FTTH networks are cheaper, faster, and more transparent than their private sector counterparts, despite the fact that they lack the gigantic economies of scale that broadband behemoths like Comcast and Verizon enjoy.10
In terms of market share, the threat posed to monopoly ISPs by municipal broadband is still quite modest: there are relatively few publicly owned wired broadband networks, and they tend to be confined to small and medium-sized markets. Yet the broadband cartel has been fighting an aggressive campaign to limit municipal broadband expansion for more than a decade. In Fort Collins, Colorado, which has a population of 161,000, Comcast poured almost $1 million into a campaign to dissuade voters from endorsing a municipal broadband initiative.11 Under intense lobbying pressure by the broadband cartel and its trade groups, twenty-six states have implemented laws that severely restrict or prohibit municipalities from building their own broadband network.12
What the broadband cartel fears, then, is less the near-term loss of market share than the long-term threat of a good example. America’s internet service providers are consistently ranked among the most loathed companies in the country. By contrast, recent polling suggests that municipal broadband initiatives, or at least the right to undertake them, enjoy overwhelming bipartisan support among the public. Seven in ten Americans believe that local governments should have the right to build their own high-speed internet networks, including 67 percent of Republicans and 74 percent of Democrats.13 The success of publicly owned broadband initiatives shows that a communication system dominated by the likes of Comcast and Verizon is neither inevitable nor necessary. Municipal broadband prefigures what an alternative communications system—one committed to maximizing the public good rather than corporate profits—might look like.
A number of public broadband projects have also been proposed at the state level. In May 2018, Michigan gubernatorial candidate Abdul El-Sayed laid out a statewide public option for internet service called MI-Fi. El-Sayed’s plan involved forging “public-public” partnerships in which the state would work closely with cities and municipalities to finance and construct publicly owned fiber internet networks.14 Vermont gubernatorial candidate Christine Hallquist also proposed building a publicly owned statewide fiber internet network.15 Although these candidates did not win their respective elections, their policy proposals are worth further consideration.
Pursuing broadband development at the state rather than at the municipal level offers a number of substantial advantages. Municipal broadband initiatives are by their very nature highly localized, fragmented projects. They require that individual communities levy massive amounts of political capital, technical expertise, and legal resources to create and maintain them. Many municipalities, particularly low-income ones that have a small tax base, simply do not have these resources at their disposal. By contrast, statewide broadband initiatives would benefit from much larger economies of scale than municipal-level initiatives, spreading the costs of building out and maintaining the network over a much larger number of people.
Ultimately, the most desirable path forward may be a federal-level “Fiber for All” program. Only a Fiber for All plan could offer a high-speed, neutral internet that is truly universal in scope and could serve Americans regardless of what city, state, or zip code they live in. While this proposal would likely encounter immense political resistance from the broadband cartel, progressive politicians and even many activists seem to underestimate the public’s appetite for a bold solution to the decrepit state of America’s privately owned and operated internet infrastructure. According to a 2018 poll administered by Data for Progress, 56 percent of Americans support a public option for the internet, compared to just 28 percent who oppose it.16
Politically, guaranteeing affordable and reliable broadband access to all members of the public is a compelling position for either major political party in the United States to adopt. A Fiber for All plan specifically appeals to the material interests of rural voters who are underserved by the cable and telecom giants but wield significant influence over American elections.17 Regardless of the political benefits attached to supporting broadband internet expansion, the existence of “internet deserts”—whether in rural areas or in poor urban neighborhoods—is simply unacceptable in an immensely wealthy democratic nation such as the U.S. Confronting this injustice will require a broad-based grassroots struggle.
Despite the benefits of a Fiber for All plan, there are concerns that public ownership of internet infrastructure, whether at the municipal, state, or federal level, will increase the threat of government surveillance.18 Several important measures must be taken to preempt this possibility. First and foremost, a strong, independent government agency should be chartered to build and administer the network. In addition, any municipal, state, or federal government agency that operates a public broadband network should be required to abide by the following principles:
• Any web browsing, device, or location data beyond what is absolutely necessary to maintain the technical performance of the broadband network will not be collected.
• Any user data that is collected for the purposes of network management will be immediately anonymized.
• User data will not be shared with law enforcement or any government agency except when legally required by a court warrant. In such instances, users will be notified in a reasonable and timely fashion that their data has been shared.
• User data will not be sold to or otherwise shared with any third parties except, as necessary, with contractors working on building out or improving the network.
• Users will have the right to request a dossier that details all of the personal information that the public ISP has collected, who that information has been shared with, and the purpose for which it has been shared.
• An independent oversight and review board consisting of a wide range of privacy experts and representative members of civil society will be established to periodically review the privacy practices of any public broadband internet operator.
With the proper institutional safeguards in place, we need not choose between providing universal, affordable internet access and preserving the privacy of internet users.
Despite the popularity of many of these proposed reforms, to accomplish any of them we must first break through the corporate libertarian policy paradigm, a framework that does not recognize the internet as a critical infrastructure whose democratic purpose far exceeds the commercial imperatives of internet service monopolies. Dismantling this libertarian framework requires undoing its major underpinning—a significant impediment to any progress toward establishing a new policy paradigm and democratizing the internet: regulatory capture.
The FCC is currently a textbook example of “regulatory capture,” a situation in which a government agency loses its independence by internalizing the commercial logics and value systems of the very industries that it is supposed to regulate.19 One major contributing factor to regulatory capture is the revolving door between the FCC and the telecommunications and cable industries. For decades, FCC personnel have left the agency to serve the very industries they previously oversaw; one analysis by the media reform organization Free Press found that of the twenty-seven commissioners and chairs who served on the FCC between 1980 and 2018, at least twenty-three had followed this career path.20
The thin line separating regulators from the regulated has all but disappeared. While former FCC commissioner Michael Copps (who remained a media reform activist at Common Cause and the Benton Foundation after he left the FCC, and currently sits on the board of Free Press) is a notable exception, the career trajectory of former FCC chairman Michael Powell demonstrates the rule.21 For the past seven years, Powell has been president and CEO of the NCTA, the top cable lobbying group, and an outspoken advocate for all manner of pro-telecom policies. Other cases have been even more egregious, such as when former FCC commissioner Meredith Atwell Baker left her post to become a lobbyist for Comcast just four months after voting to approve that company’s mega-merger with NBC.22 Baker now heads the CTIA, the wireless trade association.23
The regulatory capture of the FCC by corporate interests—a phenomenon that permeates many other areas of government—over time contributes to a broader ideological and discursive capture.24 Policy discourse becomes limited to objectives that are aligned with corporate interests, and policymakers systematically write off alternative options like subsidizing public media, enforcing public interest obligations, and trust-busting corporate monopolies and cartels.25 This discourse infiltrates think tanks, regulatory agencies, and even academic research.26 Such discursive framing helps justify regulatory retreat—in recent decades often referred to as “deregulation”—which contributes to pervasive and systemic market failures throughout our contemporary media system.
A related development might be described as “digital Lochnerism,” which harkens back to the Lochner era of American jurisprudence. In the namesake 1905 case, Lochner v. New York, the Supreme Court struck down a state labor law that set the maximum allowable daily and weekly hours for bakers on the basis that it violated the due process clause of the Fourteenth Amendment and the constitutional protection of the “liberty of contract.” This period of legal history, which extended from the Lochner ruling to the New Deal, saw the courts invalidate approximately two hundred pieces of state and federal legislation, much of which attempted to regulate the behavior of commercial firms by establishing minimum wage protections and banking regulations.27 Thus, the term Lochnerization refers to a kind of judicial activism characterized by economic libertarianism that invalidates regulations according to a perverse reading of the due process clause. This kind of legal thinking, also evident in the infamous Citizens United decision, essentially bestows corporations with the constitutional rights of citizens.28
The specific ideological threat facing the internet’s democratic potential in recent years is what Susan Crawford identifies as “First Amendment Lochnerism,” in which the economic interests of large ISPs are protected by a corrupted interpretation of the First Amendment that protects corporate malfeasance.29 Verizon used a similar line of reasoning during its earlier arguments to the DC Circuit Court, and comparable arguments are currently being advanced in various arenas.30 While many scoffed at these arguments during earlier net neutrality cases, one person did seem to embrace them: the new Supreme Court justice Brett Kavanaugh. In a 2017 dissenting opinion while he was sitting on the DC Circuit Court, Kavanaugh indicated that he thinks internet access providers should hold “speaker” privileges, stating that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers.”31
These corporate libertarian arguments aim to exploit the First Amendment to delegitimize government intervention in the economy and thus render the state powerless to address the deep structural inequities that plague the nation’s telecommunications sector. Opposing this ideological framework will require legal and normative rationales for state intervention. At the most general level, such policy rationales should draw from the previously mentioned economic theories of market failure and public goods. These arguments should also be adopted from democratic theories based on positive freedoms that privilege freedom of expression and the affirmative right to access diverse sources of information. Such guarantees go beyond the libertarian definition of freedom as merely the absence of state interference. Frameworks based on market failure and positive freedoms undercut the libertarian foundation for rationalizing a commercialized internet that serves corporate monopoly interests above all others.
Although the recent battles over net neutrality may seem unprecedented, we have faced similar moments before.32 Throughout the nineteenth and twentieth centuries, the emergence of new media, including the telegraph, radio, and telephone, spawned conflicts over their ownership, governance, and whose interests they should ultimately serve. As we once again set out to answer core questions about how to govern a new medium, we might look to our past to discern lessons for charting our future. The media system that we have today—one that is dominated by a small number of lightly regulated corporations—was neither inevitable nor natural; it was the result of policy battles and the triumph of commercial interests over the public interest.
The country’s media infrastructure has undergone periodic confluences of technological, political, and social tumult—what historians sometimes call “critical junctures.”33 Critical junctures are periods in history in which the certainties and commonsense beliefs of previous eras are abruptly thrown into question and new trajectories are made possible. American history is punctuated with these paradigm-shifting moments, which typically originate at the grassroots level and gradually gain expression among progressive political elites. These fleeting moments create rare windows of opportunity for radical ideas to flourish. One such inflection point occurred in the 1940s during policy battles over radio, which resulted in America’s preeminent medium being largely captured and degraded by a corporate oligopoly. With the public airwaves marred by excessive advertising and low-quality programming, many felt that extreme commercialism was undermining radio’s revolutionary promise. The 1940s witnessed the rise and fall of a media reform movement that attempted to establish a social democratic alternative to the commercial media system. While reformers were able to force the breakup of NBC (the largest radio monopoly) and institute some important public interest policies such as the Fairness Doctrine, this reform movement largely failed. Nonetheless, we can glean important lessons from this past struggle.
We once again occupy an indeterminate point in the history of a new medium. Will the internet fulfill its democratic promise and empower citizens to participate in the public sphere, or will it turn into a soapbox for large corporations and the 1 percent? American history shows that society has suffered under monopolies before—and that citizens have stood up to confront them. And if this history provides any lesson, it is that reforming our media system will require continued public pressure from below, not just from political elites. It also will require removing the intellectual and ideological blinders that prevent our government from taking on media monopolies in a serious structural way. Policy battles from previous eras suggest that media corporations cannot simply be shamed into acting responsibly. They must be compelled to do so, especially from below by social movements.34
As these grassroots movements coalesce, an important aim is to democratize all areas of the internet. A public option for broadband access is an important first step at challenging the power of internet service monopolies, but we must also confront other digital injustices. Platform monopolies such as Facebook (which also owns Instagram and WhatsApp) and Google (which also owns YouTube) hold tremendous gatekeeping control over internet content and engage in “surveillance capitalism” in the United States and around the world—and their power is only growing.35 Confronting the full range of “digital feudalism,” in which corporate oligopolies capture multiple layers of the internet—including control over content, intellectual property, and technological hardware—will require a multiplicity of movements and activist campaigns to democratize all aspects of the internet.36 This should also include confronting inequities across the globe: billions of people still lack internet access, and in many countries internet users are subject to surveillance, political propaganda, online hate speech, and other injustices.
Some positive signs suggest that a broad-based movement for a democratic internet is beginning to stir. Calls for revitalizing America’s antitrust traditions, as well as a focus on local and state-level policy interventions, are gaining momentum. But challenging the corporate domination of the internet will take long-term organizing and tremendous grassroots energy. It is uncertain whether the same force that advanced net neutrality can be harnessed to confront the structural roots of internet monopolies. The level of engagement, from petitions to public comments to the FCC, shows that business-as-usual—in which policymakers make decisions on the public’s behalf without the public’s consent—is no longer tenable. This democratic shift alone is grounds for cautious optimism.
One of the slogans from earlier media reform movements is that whatever your first political issue is, media reform should be your second. Oppositional political movements require an open media system in order to win popular support. Without net neutrality, there is a greater likelihood that corporate censorship will deprive movements of the public outreach they need to grow. However, an engaged public can organize to push back against corporate libertarianism and finally establish a medium guided by social justice. How this battle is resolved could determine whether we follow the path of earlier communication infrastructures, whose great potential was squandered in favor of crass commercialism—or whether we can finally begin to create a media system worthy of its democratic promise.