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How Internet Freedom Got The Federal Ax
And Why Corporate News Censored the                              Story

                                                                                  A Buzzflash Guest Contribution

                                                                                       By Elliot D. Cohen, Ph.D.


The days are now numbered for surfing an uncensored, open-access Internet, using your favorite search engine to search a bottomless cyber-sea of information in the grandest democratic forum ever conceived by humankind. Instead you can look forward to Googling about on a walled-off, carefully selected corpus of government propaganda and sanitized information "safe" for public consumption. Indoctrinated and sealed off from the outer world, you will inhabit a matrix where every ounce of creative, independent thinking that challenges government policies and values will be squelched. Just a wild conspiracy theory, you say? No longer can this be rationally maintained.


Federal government--from the Federal Communications Commission (FCC) to the White House--and corporate mainstream media have worked cooperatively to quietly block open access to cyberspace. Seizing its infrastructure, corporate mainstream media have censored and covered up its logistical moves"including lobbies in Congress and the FCC, the filing of suits in state and federal courts, and quid pro quo with the highest government officials--to commandeer, monopolize, and turn the Internet into an extension of itself. From Fox News to CNN, there has been dead silence as the greatest bastion of democracy in history is being torn down and resurrected in its own image. Now, as the corporate newsrooms remain mum, it has gotten the green light from the highest federal court in the land.


On June 27, 2005, in a 6 to 3 decision (National Cable & Telecommunications Association vs. Brand X Internet Services) the United States Supreme Court ruled that giant cable companies like Comcast and Verizon are not required to share their cables with other Internet service providers (ISPs). The Court opinion, written by Justice Clarence Thomas, was fashioned to serve corporate interests. Instead of taking up the question of whether corporate monopolies would destroy the open-access architecture of the Internet, it used sophistry and legally- suspect arguments to obscure its constitutional duty to protect media diversity, free speech, and the public interest.


The Court accepted the FCC's conclusion reached in 2002 that cable companies don't "offer" telecommunication services according to the meaning of the 1996 Telecommunication Act, which defines telecommunication purely in terms of transmission of information among or between users. According to the FCC, cable modem service is not a telecommunications offering because consumers always use high speed wire transmission as a necessary part of other services like browsing the web and sending and receiving e-mail messages. The FCC maintained that these offerings are information services, which manipulate and transform data instead of merely transmitting them. Since the Act only requires companies offering telecommunication services to share their lines with other ISPs (the so-called "common carriage" requirement), the FCC concluded that cable companies are exempt from this requirement.


However, the FCC's conceptual basis for classifying cable modem services as informational was groundless. Not even the FCC could deny that people use their cable modems to transmit information from one point to another over a wire, regardless of whatever else they use them for. The FCC's classification could not possibly have provided a reasonable interpretation of the 1996 Telecommunication Act since it was inconsistent with it. Section 706 (C) (1) of this Act defines "advanced telecommunications capability"

without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.


Broadband cable Internet offers "advanced telecommunications capability" since it clearly fits this legal definition. Therefore, cable modem service must legally be regarded as telecommunications service.


To classify it as an information service is instead to treat high-speed broadband Internet as though it were similar to cable services such as Fox News and CNN. These networks send information down a one-way pipe unlike Internet transmissions, which, in contrast, are interactive, two-way exchanges resembling telephone conversations.

 The 9th Circuit Court of Appeals made this quite clear in its decision in AT&T v. Portland :

Accessing Web pages, navigating the Web's hypertext links, corresponding via e-mail, and participating in live chat groups involve two-way communication and information exchange unmatched by the act of electing to receive a one-way transmission of cable or pay-per-view television programming. And unlike transmission of a cable television signal, communication with a Web site involves a series of connections involving two-way information exchange and storage, even when a user views seemingly static content. Thus, the communication concepts are distinct in both a practical and a technical sense. Surfing cable channels is one thing; surfing the Internet over a cable broadband connection is quite another.

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The Supreme Court had to strain to find some alleged legal basis to defer to the FCC's classification of high-speed Internet as an information service. So it put the entire weight of its argument on the FCC's claim that cable companies do not "offer" the telecommunication aspects of its services to consumers. Instead, it "offers end users information-service capabilities inextricably intertwined with data transport." Justice Scalia, writing the minority opinion in Brand X, analogized, you might as well say that a pizza service doesn't deliver pizzas because it also bakes them!

Countering with its own analogy, the majority rationalized that you might as well say that a car dealership "offers" engines to consumers because it offers them cars. According to the majority's perspective, since the finished product is the car and not the engine, it makes more sense to say they offer consumers cars rather than engines.

Similarly, it argued, the finished product that cable modem customers seek is Internet services such as being able to surf the net, not simply a transmission over a wire.


The Court's claim is makeshift and oversimplified. It obscures the scope of consumer motivation by assuming that consumers have just one broad perspective that defines what a company "offers" them.

Realistically, consumers are also interested in the quality of the engines they get when they purchase cars (whether it's a V-8, V-6, 3.8 liter, 2.0 liter, etc). From this consumer perspective, the car dealer is indeed "offering" engines to consumers (and bucket seats, antilock breaks, dual air bags and all other components that determine the car's drivability, safety, comfort, design, durability, speed, and so forth). Similarly, from the perspective of average cable Internet consumers who care about how reliable and fast the cable connection they purchase is, the cable company can, in a very practical sense, be said to be "offering" a telecommunication service.

The FCC's distinction that cable modem data transmission service is inextricably bound up with information services--just as an engine is inextricably bound up with a car"is, in this instance, a distinction without a difference.


In the end, the Court retreated to the claim that the Telecommunication Act was ambiguous. So why did it side with the FCC's interpretation even though there was clear, prior legal precedent for classifying cable modem services as telecommunication offerings (AT&T Corporation vs. Portland)?