The positions forwarded by public interest advocates and academics before the FCC during consideration of the AOL-Time Warner merger articulate a public interest in maintaining and nurturing a transparent, easily accessible, affordable, and freely interactive communications network. These arguments for nurturing a nascent virtual commons responded to the all-too-familiar process by which existing communications owners assert control over innovations. They also challenged the regulatory status quo. The argument continues to evolve in discussion of commons policy more generally.
The Public Interest
"The public interest," a regulatory term of art in telecommunications policy, has a long and tortured genealogy, interwoven with political history. The phrase "the public interest, convenience and necessity" was borrowed from earlier public utility legislation and inserted into the original telecommunications legislation (Napoli, 2001, 66-67). A political football ever since, the term has frequently been a tool to justify callow and usually corporate self-interest, as weary lawyers and consultants note (e.g., Krasnow, Longley, & Terry, 1982). It has also been invoked by consumer and public interest advocates to encourage corporate responsibility to consumers, and to motivate electronic media producers to create public affairs programs and programs for children. The perpetual politicization of the term has spurred theoretical categories such as capture theory (regulatory agencies become tools of the companies they regulate) and public choice theory, in which the term "public interest" is a stick with which rivals for government spoils beat each other (Napoli, 2001). As Robert Horwitz has charted (1989), the demonizing of the term "public interest" has been part of a historical process that spans decades, in which the political process of deregulation has been accompanied by the intellectual elaboration of such theories. In the tradition of then-FCC Chairman Newton Minow, who called for a civic understanding of public interest in his famed "vast wasteland" speech (Minow, 1978), advocates from the 1960s, representing the concerns of librarians, teachers, minorities, the disabled, workers, and independent producers, demanded a range of add-ons to communications industry practices, including special programming, spectrum set-asides, and subsidies for communications services. Their gains, resting largely on anti-monopoly arguments, have been characterized by market liberals as insultingly patronizing and as deforming the market, and have mostly been rolled back in a period of general euphoria over deregulation since the 1980s (Shaw, 1998, p. 26). The ascendancy of deregulatory ideology effectively corralled the small but feisty media reform movement that grew up with the civil rights movements (Montgomery, 1989; Horwitz, 1997).
The notion of a natural marketplace in communications is itself an artifact of politics, as Thomas Streeter's (1996) comprehensive critique of communication policy showed. Streeter argued that complex politics had created and constantly maintains the communications marketplace, primarily through property creation, which transforms social relations into commodities. In legal wrangles, property claims are accepted as natural, so that "the question is how to extend the regime of property into new areas, not what to do about property in already existing institutions, nor the idea of property itself" (p. 207). This leaves advocates for any constituency poorly served by the property regime--a group that includes the public in the Deweyan sense of all those suffering the consequences of any particular private, governmental, or corporate behavior (Dewey, 1927)--with opportunities primarily at the moment when property regimes are extended. The policy debate over open access to the broadband Internet was one such moment.
Broadband Internet Policy: From Open Access to Walled Garden
Broadband policy was discussed within terms established by the Telecommunications Act of 1996. …