The Best of Times or the Worst of Times: Which Will It Be?
Michael Copps
Charles Dickens opened A Tale of Two Cities writing that “It was the best of times, it was worst of times”. Therein may lie some helpful context for understanding where our country finds itself today. With our Covid-ravaged economy recovering from the havoc of the past three years, jobs on the rise, inflation at least cooling, and the majority of the American people still upright citizens working hard and caring for themselves and their families, there is reason to hope that the country will progress and the better angels of our nature will yet prevail. At the same time, however, there are forces as serious as we have ever confronted that threaten to undermine much of the progress that has been made and that imperil what is left of the democracy that we like to think we still live under. An ill-humored and obviously dysfunctional House of Representatives, a poisoned national dialogue, racial and ethnic tensions, gun violence, the power of special interests, a judiciary seemingly hell-bent on reversing important pillars of our democracy, and two globe-threatening wars make clear the worst of times could yet prevail.
What Dickens wrote could, of course, apply to many previous chapters in the annals of our past. Back when we gained our independence and charted a visionary new system of government, millions of Africans continued to be uprooted from their homes and brought to the Americas to live cruel lives as slaves. As we built a continental nation and attracted people seeking a new life, we also forcibly removed indigenous Americans from their homes and pushed them onto the continent’s worst lands. And we subjected supposedly freed blacks to the murderous years of Jim Crowism, remnants of which are obviously with us still. Later, as we built the world’s most powerful economy and rid the world of Nazi aggression, we created powerful monopolies that continue to tighten their grip to this day, we slowed the advance of organized labor, and we continued to retard the progress of women and minorities. There was good and there was bad. There still is.
I don’t propose to cover the entire issues waterfront in this brief piece, but will instead focus on a few of the things I see dragging our country and our government down today. For the purposes of this essay, I will include telecommunications and media (because I can’t stop writing about them!), Congress, and the courts.
To start off on the positive, there’s some really good news at the Federal Communications Commission (FCC). After more than 2-1/2 years of deadlock because there was no majority at that agency, the Senate has finally confirmed the very able and highly-regarded Anna Gomez as the fifth Commissioner, opening the way to restore the vitality of the agency and to tackle issues like network neutrality, media consolidation, consumer protection, privacy, artificial intelligence, and others that couldn’t move with a 2-2 split. All the while, these issues became evermore pressing. Skilled leader that she is, FCC Chair Jessica Rosenworcel did manage, before her new colleague arrived, to corral her colleagues so they could play a central role in making a reality of the aggressive broadband build-out program enacted during the pandemic. This program was a long time coming, but the next few years will go a long way to seeing that all Americans have access to high-speed, affordable broadband. That’s a national imperative, because no one can be a fully-participating citizen without such access. Most of us realize by now that our jobs, our health, our education, our news and information, and our ability to govern ourselves depend to a very large degree on broadband internet access.
But now other more contentious issues can begin to move ahead. Almost immediately after Commissioner Gomez was sworn in, Chair Rosenworcel announced the teeing up of net neutrality, which the previous FCC under then-Chair Ajit Pai had foolishly eliminated. Net neutrality is the heart of an open internet that can empower all our citizens. Without it, the big internet service providers (ISPs) control this essential infrastructure. These ISPs would have us believe all is well without net neutrality, but that’s nonsense. Companies that have the power to block and throttle access; that control not just access, but content too; that can disconnect customers without fear of retribution; that can deny consumer privacy, and that can use their legislative and moneyed influence at all levels of government to keep them immune from public interest oversight and from wielding power that no private businesses should be allowed to exercise in a democratic society. The internet was designed for openness, direct access, diversity, non-discrimination, consumer protection, national security, and to be the town square of democracy. It is falling short in living up to its promise. Freedom House recently reported that for 13 years running, the global internet has become less free. In important ways, it is actually running in reverse.
Other nations are way ahead of us in designing privacy protections, transparency, and other regulatory oversight to protect their citizens. But thanks to the largely unchecked power of our communications behemoths, we seem unable to move from talk-talk to act-act. Just the way the ISPs want it!
Meanwhile, the big just keep getting bigger. Those garage entrepreneurs of the internet’s youth have been largely replaced by tech giants, gobbling up potential competitors before they can get off the ground. Mergers and acquisitions are in the hundreds of billions of dollars. One of the giant tech megafirms, Microsoft, just sealed a deal for a $69 billion acquisition of Activision, a video game business. This is a so-called “vertical merger” that puts companies in control of businesses that, while they are not direct competitors in the same business, their ownership confers power over related phases of production, so that the acquiring enterprise gains control over both the production and distribution of a product or service. Isn’t that the classic definition of a monopoly? It hearkens back to the robber barons of the Gilded Age who controlled, for example, both oil and the railroads that transported it. Anti-trust laws were actually passed over a hundred years ago to curtail this kind of activity, and the courts initially enforced them. But that has changed, and nowadays the courts mostly look approvingly on vertical integration, and what little anti-trust they do is of the horizontal, directly-competing business, kind. Our present-day courts often tout their respect for judicial precedent, but in this area, they seem more captive to contemporary big business ideology and largesse rather than to ruling as dispassionate and informed judges.
The Biden Administration has worked hard in the anti-trust area, contesting some transactions and discouraging other mergers from even being proposed. But it’s all uphill. The New York Times reported recently that of twenty-four billion-dollar-plus tech mergers completed between 2013 and into this year, twenty of them were vertical transactions. We can expect more such consolidations in the years ahead. This should really worry us.
As I have written in this space before, the present Supreme Court, and many lesser courts, too, have fallen captive to similar horse-and-buggy jurisprudence. To make a bad situation immeasurably worse, they seem increasingly determined to dismantle needed oversight of the economy by seizing jurisdiction over it from Congress and the Executive Branch. In communications law, something called the Chevon Doctrine has allowed government agencies, like the FCC, to interpret the vague laws customarily enacted by Congress. If a law confers a general oversight power but doesn’t get into the nitty-gritty details of how it should be administered, the long-since and judicially-approved Chevron Doctrine allows agency discretion on how to make it work. This is not only practical—it’s essential, and it makes perfectly good sense. Many of the laws enacted by Congress today are 1000 pages and more, with important provisions tacked on at the last minute. Members often don’t even see the text of the act until hours before the vote is called. I can tell you that not many members of Congress have the time, capacity, or inclination to plow through those pages before they vote on them. So, it is no wonder that the provisions are often vague and poorly stated. That’s why, if a law is to do its job, the agencies tasked to administer it must have the ability to clarify the unclarified.
Now it seems there is a strong possibility that the current Supreme Court may one day soon limit, or even eliminate, an agency’s ability to make sense of a law and administer it wisely. The problem is that Congress will continue to legislate in its haphazard way, and the government agencies would then be unable to protect consumers and the public interest. It would throw our government back more than 100 years, and it would be a bright green light for big business and the special interests to exercise even more control over our government, and us, than they do already. Yes, the Supreme Court needs a code of ethics; it also needs a code of judicial restraint. Court reform is desperately needed if our system of government is to be effective.
Matters such as these need to be the issues we debate and discuss. But every hour’s “breaking news” report on Trump’s trials and travails, on “if it bleeds, it leads” coverage, on the constant stream of glitter and gloss, denies us the real news and information we need to fulfill our obligations as informed citizens. Reforming media must be another of the nation’s high priorities.
We have so much to do. New issues confront us, too. We are as threatened as we are empowered by artificial intelligence. How will we manage the life-altering changes it will bring? Climate change is accelerating faster than what almost anyone thought possible just a few years ago. Will we let it destroy our planet, or will we act in time to keep it habitable?
OK—this blog is depressing. But it is not a prediction of how the future has to be. Back to Dickens where the Ghost of Christmas Yet to Come, admonishes Scrooge that what the apparition describes is not how things necessarily have to be, but how they will be unless corrective action is taken. Scrooge, saying “I fear you more than any spectre I have seen” proceeds to take that action and things changed much for the better. We can take action too. In a democracy we are the authors of our future. We can meet our challenges and work toward the best of times, or we can let our shortfalls drag us downward to the worst of times. I truly believe that we can still, as a nation, wake up to the gravity of the challenges we face. We can demand a media that digs for facts, tells the truth, and truly informs people. We can organize through citizen action through grassroots and an open internet to compel action in Washington and our state capitals. If we will organize, pressure the politicians, and get out and vote, I really believe we can get this great nation on track. But it’s not somebody else’s job. It’s yours and mine. Only an aroused and informed citizenry—that means you and me—can do something about it. It better be soon.
Keep democracy alive. And, as Dickens’s Tiny Tim said, “God bless us, everyone.”
This Article also appears on www.Benton.org here.
Michael Copps served as a commissioner on the Federal Communications Commission from May 2001 to December 2011 and was the FCC’s Acting Chairman from January to June 2009. His years at the Commission have been highlighted by his strong defense of “the public interest”; outreach to what he calls “non-traditional stakeholders” in the decisions of the FCC, particularly minorities, Native Americans and the various disabilities communities; and actions to stem the tide of what he regards as excessive consolidation in the nation’s media and telecommunications industries. In 2012, former Commissioner Copps joined Common Cause to lead its Media and Democracy Reform Initiative. Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest. Learn more about Commissioner Copps in The Media Democracy Agenda: The Strategy and Legacy of FCC Commissioner Michael J. Copps