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FCC's Comcast Decision Scratches a 20-Year Itch

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Later this month I will celebrate 20 years as a public interest communications lawyer. After two unhappy years in a private law firm, I walked into the small and cluttered offices of Media Access Project in August 1988 and never looked back. We spent most of our time in those early days trying to get broadcasters and cable operators to live up to their public responsibilities -- impossible work in the laissez-faire Reagan-Bush I years. It was all mass media reform then. There was no technology policy, and the Internet was the stuff of geeks and academics, but the goals we had then were the same as they are today -- to ensure a communications system that promotes creativity, civic discourse and democratic self-governance.

Last Friday I sat in the second row of the FCC's meeting room to hear a divided, but bipartisan Commission announce that it was reprimanding Comcast for interfering with certain peer-to-peer services and thereby upholding a complaint against the company filed by Free Press and Public Knowledge. The feeling of joy and relief was completely foreign to me -- I remembered sitting in an older version of that meeting room (at 20th and M Streets, NW) dozens of times from 1988-1998, and recalled how my face would flush with anger and frustration as the requests of the public interest community were denied again and again.

The significance of the Comcast decision for public interest advocates cannot be understated -- not only for its substance, that is, the Commission's assertion of authority to protect Internet users from broadband providers discriminatory tactics, but also for the fact that it is the first time that I can recall in my 20 years of media reform work that the FCC has affirmatively granted a request for a policy change by public interest groups that wasn't otherwise mandated by Congress (broadcasters' obligations to provide programming geared towards children is one example). And while of course our groups were assisted in our advocacy by industry and academia, the Comcast complaint was a matter conceived of, initiated, and carried through, by public interest advocates, directed by the incredible legal work and political smarts and assertiveness of the media reform group Free Press.

Now this is not to say that public interest advocates have not had victories over the years, although they have been few and far between. Our biggest legislative win was passage of the 1992 Cable Act, which, among other things, provided the necessary protections that permitted the direct broadcast satellite industry (and other multichannel video providers like Verizon's FiOs) to flourish. The Act was the only time in George H.W. Bush's tenure that his veto was overridden. Consumers Union's Gene Kimmelman, who was with Consumer Federation of America at the time, was at the forefront of that effort.

We have also had success in the courts. Thanks to the leadership of Jerry Berman and the Center for the Democracy and Technology, the public interest community joined with the technology industry in 1997 to overturn the Communications Decency Act, which prohibited indecent speech over the Internet. That case resulted in a landmark Supreme Court decision Reno v. ACLU, which set the standard for free speech on the Net. In 2003, Media Access Project and Consumers Union provided the leadership in a critical case in the US Court of Appeals for the 3rd Circuit that reversed the FCC's deregulation of local broadcast media. That case set the standard for the kind of empirical backing the Commission must provide before deregulating. In 2005, Public Knowledge led seven other public interest groups in a successful federal court challenge to the FCC's "broadcast flag" rules, which would have required digital device manufacturers to build devices to obey a copy protection signal that would have prevented TV viewers from sending all or part of over-the-air digital broadcasts over the Internet. The court found that the FCC did not have power under the Communications Act to regulate devices without express authority from Congress.

But these court decisions were reactive -- they sought to reverse the adoption and implementation of bad laws and policies. And that is what characterized the handful of public interest victories at the FCC in the 80's, 90's and the oughts: they either stopped bad things from happening or made bad decisions a little less bad. While public interest groups filed many petitions for declaratory ruling and petitions for rulemaking in an effort to create pro-consumer policies, almost all of them sat in the Commission's bowels for years. That the Comcast complaint was filed, put out for comment and decided within the space of 10 months is nothing short of a miracle in the annals of public interest communications advocacy.

So hopefully you'll pardon me if I savor this victory a bit. It's been a long 20 years, and nobody knows whether this is the start of a trend or an aberration. What I can promise is that public interest advocates are not about to rest on their laurels. Playing offense is a lot more fun than playing defense, and industry and policymakers should expect more of the former in the near future.