Biting the Hand

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As federal, state, and local governments take a new look at what companies should have access to public easements and utility rights of way, they really should consider all the angles. Especially since common carrier, public utility, or natural monopoly status may actually be in flux. One factor to consider might be the array of cases where a part of our essential communications infrastructure, specifically Internet Service Providers (ISPs), have sued municipalities that wanted to deliver their own Internet services. Two of the biggest ISPs, the ones that orchestrated an attack on net-neutrality, and thereby the First Amendment, should re-commit to serving the public interest as common carriers.

They should obtain this re-classification in an above board manner. Not by means of the usual political sophistries, that only serve to make our “elected representatives” even less representative. In the meantime, they should not enjoy a presumption of unfettered access to public utility easements or rights of way without the common carrier classification.

American enterprises have historically benefitted from the commons. And those private enterprises, enjoying superior access rights to spaces secured through eminent domain, have obligations to insure they are serving the public interest. The bad actors among them would convert and monopolize the commons, intentionally ignoring the ways their gamesmanship works to the detriment of everyone else.

It may be through taking the concept of “natural monopoly” to illogical extremes. It may be through fouling the air and the water, offloading the cost of any real consequences to future generations. Or, it may be through the privatization of things originally built by the taxpayers or through their forbearance. The one thing that certain malign actors, within business, have in common is the extent to which they privatize gains while socializing expenses and losses. Consider these examples:

• The taxpayer invests tremendous amounts of money to insure vital research is conducted in the public interest. Then we watch helplessly as essential medicines, that have been in the public domain for decades, are deliberately made scarce so that certain manufacturers are unjustly enriched by gouging people who are in desperate need.

• The taxpayer funded the development of software that would allow them to file their taxes directly with the Internal Revenue Service (IRS). Then, companies that reverse engineer the software and want to be paid for providing those same services, covertly bribe politicians to prevent the funding public from using the web interface they already bought.

• The taxpayer funded the systems used by the National Weather Service (NWS) to develop forecasts and convey that information to the public. Then, companies that effectively duplicate the service work to prevent the NWS from disclosing it directly to the public. Consider how you might be affected if the one minute advanced tornado warning is free while the five minute one is only available to paying customers.

• A city makes a wide range of special accommodations available, including favorable tax treatment, so that a baseball franchise can build a stadium. Then, when the players go on strike, the same city is denied any role in the negotiations even though the value of their investment is diminished and the city is impacted financially by the work stoppage.

• A charitable hospital system is built, over the course of a century, while avoiding taxes on the income, the supplies, the land, and for use of the locality’s infrastructure. Then, when the institution is privatized, just how does the taxpayer get compensated for their forbearance, for the extra taxes we all paid because the hospital was built-out without paying any?

Of particular interest in the Net-Neutrality context is the extent to which municipalities make public utility easements available to Internet Service Providers. The Internet was created and funded to serve the public interest. First for defense, then for research, and eventually opening it up for commerce along with personal use. Now, as the individual ISPs become increasingly self-serving, they sue these same municipalities for any attempt to provide their Internet services directly to the public.

There is, at the time of this briefing, a legislative initiative that on its face proposes, and I quote: “to improve public access to Wi- Fi.” This is misleading, for the actual bill contains the following phrasing:“to prohibit a state or a political subdivision thereof from providing or offering for sale to the public retail or wholesale broadband Internet access service.”

While at least one major ISP has deliberately slowed the deployment of fiber infrastructure, the City of Chattanooga, Tennessee installed a fiber optic network in 2010. It is now celebrated as one of the best Wi-Fi services in the entire United States. lists 63 cities, across the country, with similar publicly owned fiber networks. Those cities have, at their disposal, a wide variety of options in the legal toolkit to defend their publicly owned network from the ravages of unbridled privatization. The principles clearly articulated, as the Internet was first created and funded by taxpayers, remain relevant today.

One would think those who feel they’ve been “taxed enough already,” would want a decent return on the taxpayer funded investments they already made.

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