“In this world there’s two kinds of people, my friend. Those with loaded guns, and those who dig. You dig.”

That was Clint Eastwood in “The Good, The Bad and The Ugly,” but how many of us ever likened the American media landscape to the Wild West?

On April 6, the Federal Communications Commission (FCC) squared off against Comcast Corp. in the United States Court of Appeals for the District of Columbia — a veritable high-noon showdown between two of the agenda-setting heavyweights in the mass communications landscape. Who’s the sheriff, and who’s the villain? We’ll leave you in suspense on that one… at least for a moment.

Let’s start with the perceived issue that led to the court battle in the first place. A few years back, as peer-to-peer (P2P) file sharing continued to gain in popularity, ISPs (internet service providers) not surprisingly began to notice a huge spike in consumption of their bandwidth. Philadelphia-based Comcast Corporation, with 15 million broadband subscribers on a leash, decided to bite back by choking that flow of traffic (specifically file transfers taking place on the BitTorrent P2P service).

With that, the Net Neutrality movement gained a widespread following. Consumers far and wide cried foul, claiming that in a free democracy, no corporation had the right to restrict access to information. The FCC agreed, and ordered Comcast to put a stop to it.

But Comcast came back fighting. They asserted that the FCC in fact had no jurisdiction over the matter, and geared up for a fight… which was apparently resolved on April 6th. According to the New York Times (“US Court Curbs FCC Authority on Web Traffic“), the court’s ruling leaves regulators with “limited power over Web traffic under current law” and “the decision will allow Internet service companies to block or slow specific sites, and charge video sites like YouTube to deliver their content faster to users.”

As is often the case, the immediate aftermath of this decision is hardly as grave as the slippery slope in its interpretation. What happens if Comcast begins to identify other streams of traffic that clash with its business interests (Hulu.com comes to mind), and begins to throw its weight around in the face of a newly under-regulated environment? What if a future candidate for governor, senator, even President proves to be more friendly to the telecom lobby than his or her opponent — can we expect fair and balanced coverage of the campaigns? If the Federal Communications Commission is not fit to arbitrate these potential conflicts of interest, who is?

The scope of power held by the FCC is defined by the United States Congress, so it’s likely that this is where the Net Neutrality movement will turn next.  On the heels of January’s Supreme Court ruling that the U.S. government cannot ban political spending by corporations in candidate elections, and with the midterm elections right around the corner, this is sure to be a gritty battle. Beyond the current battle being waged from Washington, DC to every corner of the country, it’s worth a pause to consider some of the other battles which may heat up as a result of the April 6 ruling:

1) Just another front in the war over copyright protection.

BitTorrent, the original target of Comcast’s preferential treatment of data streams, is largely used in the unregulated trade of copyrighted content. It also happens to chew up a lot of bandwidth, given the size digital audio and video content. We’ve watched the entertainment industry grapple with an outdated business model for years on end… are we paying proper attention to their role in the Net Neutrality debate? As a anonymous commenter on Broadband.gov has stated, “What this really points to is the absolute need to rigorously divorce content from transport.”

2) A halt to the progress made toward eliminating the digital divide.

We’ve made some progress on making high speed internet ubiquitous, but it’s not coming fast enough. Currently, barely half of rural households in the United States have access to broadband (see graph below, courtesy of Digital Nation). If telecoms have more power to direct traffic toward their own commercial agendas, and the FCC less authority to oversee it, will we as a country remain committed to this fight? Without access to high speed internet, rural populations in the United States will be at a major disadvantage in terms of building and maintaining resources and skill sets, and the dynamism of the American economy will suffer.

3) Consumer perceptions of the role that this ruling may play in our economic rebound.

Are your ears burning? Here’s where digital marketing could be impacted the most. If Americans begin to lose faith in the internet as a democratic medium, with free and open access to all, it won’t be long before consumer behavior follows suit. The industry already faces significant challenges, especially in terms of protecting privacy, maintaining channel loyalty, and managing perceptions of information quality. Just as consumers are beginning to feel a weight lifted off their shoulders, they may begin to feel like the internet is not to place to be spending those dollars. A company with diversified media holdings like Comcast could weather the storm pretty well, but what about the rest?

The next time around, this fight won’t necessarily be fought by the FCC. It could be fought by each and every consumer, who resorts to packing a 45 (figuratively speaking) in defense of their right to free access to information. If Americans decide to hold their elected officials accountable, and fight on their behalf, we’ll be back on our way to the innovative drive that has fueled a lot of our growth in recent memory.

Otherwise, when high noon rolls around, there will be more shootouts… but one of the cowboys will be a mean guy like Clint Eastwood, and the other a little more like Marty McFly.

Who would you bet on, in that fight?

About Paul Burani

Paul Burani - Partner, Web Liquid Group. Connect with me on Google+

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