The issue of net neutrality has vexed us at MKCREATIVE for a while, and most of our readers know that we have run a few stories on it. We return to the issue now because the de facto closing of the legislative calendar for campaigning has left the issue sorely challenged by mobile-phone companies and sheepishly postponed until after the new Congress reconvenes. That combination, we fear, could end the debate to uphold net neutrality simply because “good men do nothing.”
David Kravets of Wired.com posted a story last week about the court case between T-Mobile Wireless and E-Z Texting (the plaintiff in the case), in which T-Mobile blocked all of E-Z Texting services because E-Z Texting included opportunity for customers to find where legal/medical marijuana was being distributed. In the legal brief submitted by T-Mobile, its contract with E-Z Texting (and presumably others messaging services) states that T-Mobile reserves the right (accepted as a ‘best practice’ by the Mobile Marketing Association, or MMA) to establish “an approval process to protect the carriers’ customers, businesses, and brands from offensive, abusive, fraudulent, or illegal information services.” E-Z Texting, the brief continues, changed its messaging from social gatherings at local bars and restaurants to the aforementioned distribution sites, thus negating the original contract.
Kravets stresses the fact that the specifics of the case are local [The Southern District of New York], but the implications are national, given the fact that the FCC has not made an effort to clarify guidelines for wireless networks, and the Google-Verizon manifesto clearly allows wireless companies to offer net neutrality unless they find it expedient or profitable not to allow neutrality.
The legal flap comes as the Federal Communications Commission has been dragging its feet over clarifying the rules for wireless carriers. The FCC was asked in 2007 to announce clear rules whether wireless carriers, unlike their wireline brethren, may ban legal content they do not support. The so-called “network neutrality” issue made huge headlines last month, when Google, along with Verizon, urged Congress not to bind wireless carriers to the same rules as wireline carriers.
(For a more strident statement from Kravets about the dangers of the Google-Verison proposal, click here.)
We don’t want to inundate you (or ourselves) with the legalese of the brief, but two passages seem especially troubling. Even if we allow (and we think the FCC should allow) T-Mobile to draw up its contracts with provisions allowing it to decide the appropriateness of content across its network (and companies can then decide a priori if they want to enter into such a contract), T-Mobile seems willing to admit both that it simply wants to strong-arm E-Z Texting because it is strong enough to do so, and that it is but a tiny wireless carrier that E-Z Texting need not bother worrying about.
The strong-arm approach (really, a suggested willingness by T-Mobile to buy-off E-Z Texting): “Plaintiff [E-Z Texting] claims that T-Mobile has caused it to suffer irreparable harm by “foreclosing T-Mobile’s customers” from using its services and that, absent an injunction … its “entire business will fail” without access to “one of the nation’s largest wireless service providers.” EZ Texting can show no irreparable harm for the fundamental reason that any injury caused by T-Mobile’s termination of the short code can be remedied through an award of monetary damages to compensate for any lost revenues from plaintiff’s T-Mobile customers.”
The ‘but we’re so small and inconsequential’ approach: “Courts in this district [Southern NY] recognize that lost business may rise to the level of irreparable harm only where the movant is “(1) threatened with the loss of an entire business,” or “(2) threatened with the loss of a relatively unique product.” Here, plaintiff concedes that T-Mobile is not “unique” but rather one of one of four major carriers with an approximately 15% share of the market. Plaintiff cannot establish that the loss of T-Mobile’s customer base for only one short code will drive it out of business because it effectively concedes that it still retains access to 85% of the potential market.”
T-Mobile wants to present itself as powerful enough that it will simply send a large sum of money E-Z’s way, and tiny enough that losing only 15% of market share is hardly worth the legal battle begun by E-Z.
No matter one’s political affiliations – indeed, no matter how this particular case is decided – if the debate over net neutrality is fought in courts on a case-by-case basis, the wireless carriers will win out because (even if they have ‘only 15%’ of the market share) they have the treasuries and lawyers to challenge each any any case they choose. Indeed, Michael Weinberg at PublicKnowledge.org posted a report as the case was first presented to the New York Circuit Court thaton its services to business and non-profit customers. Are we too cynical to suggest T-Mobile wants to pad those treasuries to deal with the upcoming litigation?
As with so many other issues in recent weeks, Congresspeople seem happy to wash their hands of the matter. According to the HuffingtonPost.com, “House Commerce Committee Chairman Henry Waxman, D-Calif., abandoned the effort late Wednesday in the face of Republican opposition to his proposed “network neutrality” rules. Those rules were intended to prevent broadband providers from becoming online gatekeepers by playing favorites with traffic. … Waxman’s proposal, the product of weeks of negotiations, attempted to carve out a middle ground by prohibiting Internet traffic discrimination over wireline networks while giving broadband providers more leeway when it comes to managing traffic on wireless networks. The plan would have given the Federal Communications Commission authority to impose fines of up to $2 million for net-neutrality violations.”
But hey, why follow through with ‘negotiations’ for a ‘middle ground’ when your colleagues in another branch of government back the same corporations that will be funding your campaign this October? Lest we forget: The Supreme Court allowed corporations to speak as individuals and contribute to the political campaigns that suit the corporate interests.