In the Matter of Preserving the Open Internet Comments of the Writers Guild of America, East, AFL-CIO

The Writers Guild of America, East, AFL-CIO, supports the proposed codification of the six principles described in the Notice of Proposed Rulemaking adopted October 22, 2009. We think it is critical that the extraordinary potential of the Internet not be stifled by corporate conglomerates that restrict access for their own commercial gain.

The WGAE represents people who write, edit, produce, and create graphics for television, film, radio, and digital media. Our members write television drama, comedy, news, and public interest programs; they write movies for major studios and for independents; they create original content for web television, for mobile applications, and for other digital platforms. Our members know firsthand how an open Internet permits them to create more innovative, informative content and to distribute it directly to the public.

While we support all six principles, the first (forbidding providers from blocking users’ access to lawful content of their choice) and fifth (requiring providers to treat lawful content, applications, and services in a nondiscriminatory manner) most directly address the interest of creators in maintaining meaningful access to the public.

The Internet and other digital media offer an unprecedented opportunity for creators to reach consumers and for people to watch and read what they want, when they want. This is very different from traditional media in which major studios, distributors, and television networks control the flow of movies and programs. We believe people would benefit from an Internet that offers a greater variety of options than what is currently available on television, radio, and the movie theater. Digital technology presents a vast range of possibilities to content creators and consumers alike, and it would be a tragedy to squeeze all of that into a narrow commercial band. Unless the Commission codifies the six principles, a relatively small number of major institutions might also come to control access to content on the Internet – big studios, network providers, or application and service providers.

The importance of the nondiscrimination principle is highlighted by the proposed merger of NBC Universal into Comcast. One of the central purposes of the merger is to give Comcast better access to and control over the production of content. At the same time, Comcast will continue to expand its digital distribution business. Comcast will have a powerful incentive to use pricing to favor its own content1.

This is not the only type of discrimination that threatens a robust, diverse Internet. As a practical matter, major entities can easily outbid independent creators of digital content for preferred access to audiences. This would be addressed by the Commission’s understanding of the term “nondiscriminatory” to preclude service access providers from charging for enhanced or prioritized access. Otherwise it is almost certain that most of the content consumers view will be produced by a relative handful of major entities – just as it is now in television and film. The enormous creative potential of a distribution system without megagatekeepers will be squandered.

Of course, it is possible that the biggest, bestfunded content producers (e.g., major studios) will attract the most viewers because of superior content. Nothing in the Internet principles would impede this. Instead, the fourth principle endorses competition of this nature. The Commission should however, preclude providers from interposing their own limitations on what people can watch and read, or post. It is simply inappropriate to stifle the flow of content – whether for ideological or commercial reasons.

We recognize that some people believe an open Internet encourages digital piracy. The WGAE strongly opposes piracy; our members lose when their work is unlawfully copied and distributed. However, we do not think permitting major commercial entities to control the flow of data and to restrict access to certain programming is an appropriate or effective method of controlling piracy. Everyone opposes car theft but no one proposes that we restrict access to the highways. Fighting piracy is an important task for law enforcement agencies. It is not grounds for restricting content creators’ access to the Internet.

1 For this reason we urge the Commission not to adopt a definition of “managed or specialized services” which ignores the very real possibility that many or most consumers will get their Internet access and their “television”,and perhaps telephone, services from a single provider.