Our Position on the “Net Neutrality” Debate

November 28, 2017 – On December 14, the U.S. Federal Communications Commission will hold a hearing and vote on the “Restoring Internet Freedom” rule making proceeding (#17-108), also known as the “Net Neutrality” issue. The proposal sponsored by FCC Chairman Ajit Pai would remove the restrictions on Internet Service Providers and network operators imposed by the Commission in 2015 that require all ISP’s and network operators to treat all data and content equally.

It would allow companies such as Comcast and Verizon to charge content producers like us for “priority” access to their networks – or for any access at all. That means you could – in theory – face longer download times for WhiskyCast episodes or while visiting our web site, and if you’re a customer of a small privately-owned ISP, you might not even be able to access our content if the owners object to the legal use of alcoholic beverages. The proposal would also pre-empt state and local governments from imposing their own “net neutrality” restrictions on providers operating within their regions.

As might be expected, we are strongly opposed to this, since it could well increase our costs to produce WhiskyCast, the WhiskyCast Tasting Panel, WhiskyCast HD, and WhiskyCast.com. While CaskStrength Media wouldn’t have to negotiate directly with the Comcasts and Verizons of the world, the hosting providers we use to deliver our content to you would, and the fees they pay for access would be passed on to us and other content producers.

Today, CaskStrength Media filed this comment with the Federal Communications Commission, and we are posting it here to fully disclose where we stand on this issue.

November 28, 2017

Federal Communications Commission

Chairman Ajit Pai
Commissioner Brendan Carr
Commissioner Mike O’Reilly
Commissioner Mignon Clyburn
Commissioner Jessica Rosenworcel

Dear Commissioners and FCC Staff:

I write today in opposition to the “Restoring Internet Freedom” proceeding (17-108) currently pending before the Commission. My experience with the Commission’s regulation of electronic media dates back to 1978, when at the age of 16, I successfully passed the test for what was then known as the “Third Class Radio Telephone Operator’s License with Broadcast Endorsement,” which was required before I could be hired to work at a radio station. At that point in time, the FCC’s regulatory powers were significantly different from today, with one key exception that I believe is viable in the current debate over “net neutrality.”

As you are well aware, the FCC was established by the Communications Act of 1934 at a time when owners of radio stations were unregulated and causing havoc on the airwaves by competing on the same frequencies and trying to drown out smaller stations with high-powered transmitters. One of the FCC’s goals was to manage the scarce resource of radio spectrum and ensure the “public interest, convenience, and necessity.” While the “scarcity” issue has been whittled away over time with the development of new technologies, the Internet remains one area where we still have a scarcity of bandwidth. Many regions – urban and rural – still have limited or no high-speed Internet access, and often are served by only one Internet Service Provider (ISP). Even in our major cities, the choice of ISP’s often remains limited.

The current proceeding now pending before the Commission would grant those ISP’s the ability to serve as a gatekeeper for content being delivered to their customers, replacing the “common carrier” status that was imposed by the FCC under the previous Administration. I respectfully disagree with the argument posed by Chairman Pai that the Commission and the Federal Trade Commission would be able to intervene if and when an ISP’s management of web traffic becomes anti-competitive, as there is currently no definition of “anti-competitive.” Allowing ISP’s to charge web content providers for access (either basic or prioritized) to their networks (and consumers) is by itself anti-competitive, as it would turn the Internet into a service where only those content creators who can afford to pay the ISP’s – or worse – those who create content that either doesn’t compete with an ISP’s own content offerings or content that an ISP chooses to allow – will be able to reach their audiences. 

I understand the free-market implications of allowing ISP’s to charge content providers for access to their networks, but in this case, the free market of ideas and information that have been a hallmark of American society must take precedence over corporate interests. 

Let me cite our own personal example: our family’s company, CaskStrength Media, has produced podcasts and online content on whiskies since November, 2005, and we deliver our content to consumers of legal drinking age via the free and unfettered Internet. Should this proposal be enacted, we face the very real potential that major ISP’s such as Verizon and Comcast will impose access fees on the hosting providers we use to serve our content. Other, smaller ISP’s could potentially decide to block our content completely based on the owner’s religious beliefs against the use of alcoholic beverages, a personal history with alcohol abuse, or any reason they choose. In the first example, our hosting providers would likely pass those access fees on to us and other podcast producers – making a growing industry that has added diverse voices to public debate financially untenable for many producers. In the second example, an ISP would be able to decide what content its customers can get access to. Given the limited Internet access options I previously cited, this means consumers would have little or no options to switch to another ISP that does not exercise control over content. Commissioner Clyburn has stated publicly that the Commission’s 2015 rules are “the best way to protect consumers and small businesses while promoting innovation.” I agree with the Commissioner. 

“The Law of Unforeseen Consequences” often comes into play when new regulations are enacted, and the decision to remove “common carrier” status from ISP’s and network providers could well lead to that in this case. I refer to the 1990 CompuServe v. Patterson ruling in which online services defined as “distributors of information” could not be held liable for content that could be deemed libelous. If the current regulations that treat ISP’s and network operators as common carriers are removed and those companies are allowed to exercise significant control over the content they provide to consumers, there is a very real risk that those companies will be subject to lawsuits over alleged defamatory content that passes through their networks to the end consumer. Attorneys often look at the potential defendant with the “deepest pockets” when deciding to file a lawsuit, and to be blunt, major telecom companies such as Verizon and Comcast have far deeper pockets than most media companies, let along the individual blogger or podcaster. 

The supporters of this proposal also argue that it will release the binds on ISP’s and network operators to invest in their infrastructure and develop new technology. There is nothing that keeps them from doing so under the present rules, except for the desire to grow their own profits and keep Wall Street happy. I refer the Commission specifically to Verizon’s decision to renege on commitments it made to regulators and local officials in New Jersey and other states to build out its FiOS fiber optic network in recent years. At a time when we still do not have true “free-market” competition among ISP’s, it does not make sense to allow incumbents to exert even more control over the content American consumers access on the Internet. 

In the Declaration of Independence, Thomas Jefferson wrote that “all men are created equal.” 221 years later, we must recognize that “all data is created equal.” Today’s web servers pass trillions of bytes of data each day with no discrimination, and I ask you to reject the proposal pending before the Commission to make sure it remains that way in the future. I do not believe, as some critics have claimed, that the end of “net neutrality” means the end of democracy in the United States. I do believe that it would lead to fewer voices being heard in the public marketplace for ideas, though, and that would be something Jefferson, Franklin, and the other founders of our country would strongly disagree with. 

I would welcome the opportunity to discuss this issue with you or the FCC staff at any time…perhaps even over a dram or two of a fine whisky. I’ll even bring the whisky! 

Sincerely, 

Mark Gillespie
Haddonfield, New Jersey
www.whiskycast.com

We believe the Internet should be a free and open marketplace for ideas and information, as that only enhances the public debate on critical issues facing our world – as well as the more enjoyable topics we prefer to discuss on WhiskyCast. We invite you to visit the FCC web site, learn more about the proposed new regulations, and add your own public comments if you’re so inclined (even if you disagree with us – we respect your right to do so). Unfortunately, some public comments on the FCC web site and social media have devolved into racist and personal attacks on members of the Commission, and we do not condone or endorse them. If you choose to express an opinion, we urge you to do so respectfully, but passionately.

Links: Federal Communications Commission