In the Matter of Preserving the Open Internet

In the Matter of  GN Docket No. 09-191Notice of Proposed Rulemaking WC Docket No. 07-52

Comments of the Writers Guild of America, East, AFL-CIO     The Writers Guild of America, East, AFL-CIO (the “WGAE”) submits these comments in response to the notice dated September 1 regarding further inquiry into two under-developed issues in the Open Internet proceeding.The WGAE represents thousands of members who write for film, television, radio, and digital media.  Our members work for the major television and radio networks and stations and for public television, where they write, produce, edit, and create graphics for news and public affairs programs.  Their material is broadcast over the airwaves, distributed on cable television, and posted on the Internet.

1.    Specialized ServicesWe applaud the Commission for recognizing that broadband providers can evade the basic principles of net neutrality by creating so-called “specialized services” as part of their broadband offerings and discriminating in favor of content provided through those services.  This is nothing more than sleight of hand – avoiding open internet principles by declaring a major portion of the internet to be “not the internet”.  This is the equivalent of stating that all of our nation’s highways are public, open to everyone and subject to neutral traffic laws – except those highways we have deemed to be private. The owners of those private highways would be free to discriminate in favor of the most profitable traffic, leaving the rest of us in the slow lanes.   

Why is the WGAE so concerned about this?  Because the internet and other digital distribution systems provide unprecedented opportunities for writers and other content creators to present their material directly to consumers.  Whatever the cost of producing a program, the cost of distributing it online is close to zero, and there are no gatekeepers to divert the public’s attention away from the program.  This is profoundly different from the current media environment, in which a relative handful of multinational conglomerates decide what gets distributed to the public on television and in the movie theaters.  Permitting broadband providers to discriminate amongst content, to decide which programs get priority distribution, would transform the open architecture of the internet into a slightly upgraded version of today’s television and film industry.  In practice, decisions about what people watch would be made by a small number of conglomerates which exist (of course) to make a profit and not to enhance our culture or educate our people.  

We submit that this would squander the enormous potential of digital media to expand our intellectual, artistic, and entertainment options.  It would force writers and other creators to abandon their independent projects and to sign on with the mega-studios.  Of course, our members do work for these mega-studios, and many of them make good livings doing so; a handful have been able to express their own unique voices under the current system (especially when they have penned blockbuster hits in the past).  But our members are, at heart, creative people who want to tell unique, compelling stories without excessive gatekeeping by commercial interests.  An open, nondiscriminatory internet makes it possible for them to reach their audiences directly. It also gives new voices a chance to be heard on merit, and not simply as a result of prior box office success or personal connections.  

As the Commission notes, the potential for the anti-competitive handling of content is particularly acute when vertically integrated providers of content, applications, and services gain significant market share.  This is precisely the case with the proposed merger of Comcast and NBC/Universal, which would create a company that controls distribution of both cable television and broadband to tens of millions of homes and also owns a huge television network and studio.  The company would have a compelling economic incentive to ensure that consumers watch the programs it produces.  But the danger also exists with other structures – for example (as also noted by the Commission), arrangements in which the broadband provider obtains more favorable pricing from particular content providers.

We have concerns about three of the general policy approaches the Commission has identified in its Further Inquiry notice: definitional clarity, truth in advertising, and disclosure.  From the perspective of the consumer and of the content creator, the digital distribution system they use feels like one seamless system; it’s what one accesses by computer or mobile device or, increasingly, television set.  People call it “the internet”.  Content is made available on that system by the creators and streamed or downloaded from the system by the consumers.  The inevitable result of permitting providers to create favored avenues within this distribution system is to direct consumer traffic to these favored avenues.  Access times would be faster, or quality would be superior in some other way.  Otherwise there would be no reason for providers to create these preferred avenues.  To suggest that net neutrality principles – including the principle of nondiscrimination – would not apply on these favored avenues is simply to say that providers can discriminate in favor of and against certain content.  The preferred material will be distributed via “special services” and consumers will favor it.  The diverse, creative, original material made by writers and other independent content creators will be relegated to the slower or lower-quality lanes, and will languish – not because consumers have decided they don’t like it as well, but because it is distributed on the official, slow-lane “internet” and not on the internet-renamed-as-special-services.  We are concerned that the first three policy alternatives described in the Further Inquiry notice would simply provide a rubric for describing this fast-lane/slow-lane divide, and would do nothing to stop it.

The last three of the Commission’s policy alternatives (non-exclusivity, limited specialized service offerings, and guaranteed capacity) appear to address the problem more directly.  If properly and thoroughly designed, a non-exclusivity rule could give independent content creators an equal shot at getting their material distributed in a nondiscriminatory manner.  In other words, the ISPs would commit to distributing (for example) writers’ explorations of important public policy matters, or dramatic developments of significant cultural trends, on the preferred avenue.  Unfortunately, there is a significant chance that the barrier to entry onto the preferred, speedier part of the internet will still be very high; that is, that offering the same arrangements to all “on the same terms” will be prohibitively expensive for independent producers.

Limiting special service offerings that do not, in fact, resemble distribution of news and entertainment programs could ensure that independent audio-visual programming remained protected by the principles of net neutrality.  This would depend on how tightly the definition of specialized services was drafted – that is, that audio/visual programming was not lumped in with other “special services”.

If a guaranteed capacity approach really meant that all internet programming was distributed at the same speed with the same quality, specialized services would become a kind of branding, or a mechanism for pricing content according to what consumers were willing to pay.  This would be different from the central problem presented by the fast lane/slow lane divide; consumers would not be directed to content based on some preference imposed by the provider.

2.    Application of Open Internet Principles to Mobile Wireless PlatformsThere is no theoretically sound reason to distinguish between wired and wireless digital distribution in the net neutrality analysis.  In both cases consumers have access to the same datasphere; in one case the device is connected by wires and in the other case, by a wireless connection.  In fact, in most homes and businesses, the computer or iPad or handheld device used by the consumer is wireless; the wireless connection is made between that device and another device in or near the home which in turn interfaces with the internet.  The same is true with mobile wireless devices; the only significant difference is that mobile devices can be moved farther away from the device that interfaces with the internet.

Less theoretically, from the perspective of the consumer and the content creator, it’s all one distribution system, or at least it will be within a few years, at most.  People already use their smart phones to watch streamed movies, access news and entertainment websites, participate in social networks, and engage in essentially the same activities they do on their desktop or laptop computers, in addition to using the smart phones to text and make phone calls.  Indeed, the advent of the iPad seems to eliminate the distinction between “computers” and “mobile devices” altogether.

For these reasons, it seems self-evident that all of the net neutrality principles, including the nondiscrimination principle, must apply with equal force to mobile wireless platforms.