Since 2001, Improv Everywhere, a prank collective based in New York, have pranked their way into the media spotlight, by riding the subway without pants, hacking the public’s reality with clandestine performances in the streets, parks, and subways of the city, and flash mobbing public and commercial spaces (Improv Everywhere, 2012g). The comedy troupe’s missions grew popular on You Tube, but have increasingly become a staple of New York culture and the mainstream media. Indeed, the troupe’s pranks occupy a unique place in New York culture, owing to how their pranks challenge popular conceptions of the use of public space and consumerism at large using culture jamming techniques (Rodriguez, 2010). In this paper, the author traces the evolution of Improv Everywhere, from a small group of pranksters to a media phenomenon, to examine how media technology influences the creation of counter-cultural media products that are ultimately co-opted by the economic logic of commercialism. The author’s analysis will proceed in four parts. Part I will provide an overview of Improv Everywhere and their missions, and provide a detailed analysis of the Best Buy Uniform prank. Part II describes how the Best Buy Uniform prank demonstrates culture-jamming techniques that challenge the dominant ideology of consumerism through alternative conceptions of the public’s use of time and space. Part III analyzes the influence of media technology and economic processes in the evolution and rise of Improv Everywhere. Finally, in Part IV the author provides a critical analysis of Improv Everywhere’s success and argues that the comedy troupe has evolved into a paragon of the very ideology they criticize, yet remains an important social phenomenon, offering an opposing voice in contrast to the allure of consumerism.
Part I: Improv Everywhere and the Best Buy Mission
According to Improv Everywhere (2012b), their mission is to cause scenes of chaos and joy for the entertainment of participants and audiences. Indeed, the collective has staged more than one hundred missions since 2001 that have been viewed on You Tube nearly 250 million times (Improv Everywhere, 2012e). Agents, the term for participants that are in on the prank, perform each mission, in front of an unsuspecting public audience, typically in a public or commercial space, like parks, subways, streets, and stores in New York City. The number of agents can range from several to several thousand depending upon the prank. In addition, some pranks, like the No Pants Subway Rides, are replicated in dozens of cities around the world. While each prank is unique in terms of setting, participants, and approach, this author as identified several commonalities. First, the group conducts the pranks in public space, conceiving of public or commercial space as a venue for performance and play. Second, the performers include agents aware of the pranks, and an unsuspecting public. Third, agents record the mission with numerous digital video cameras from a variety of vantage points, and distribute the video to the audience on You Tube. Moreover, there appears to be three distinct styles of mission, including a) flash mobs, b) clandestine performances by agents, and c) audience performances where the audience members are the actors. Of the missions conducted between 2006 and 2012, more than fifty-four percent were flash mobs, forty-one percent were clandestine performances, and a mere five percent were crowd performances (Rock, 2012). Given the majority of missions use flash mobs, this author chose a flash mob mission for detailed analysis.
The media text for the Best Buy Uniform prank on Improv Everywhere’s website, includes a produced video, a text narrative, and agent reports (Improv Everywhere, 2012a). Simply stated, the mission was to organize a flash mob of eighty agents dressed in an approximation of the uniform worn by Best Buy employees, and have them descend upon a Best Buy store in Manhattan, while four agents not in uniform captured the scene on digital video (Improv Everywhere, 2012a). The agents were instructed to enter the store one or two at a time, disperse into different sections, and face away from store merchandise (Improv Everywhere, 2012a). In addition, the organizers instructed agents to be helpful when approached by customers, and to state they were waiting for a friend and disavow knowledge of the other agents when confronted by store employees (Improv Everywhere, 2012a). The video footage begins by showing the agents entering Best Buy, loitering in different store locations, and even straightening up disorganized merchandise (Improv Everywhere, 2012a). However, the footage quickly shifted to the reaction from store employees. While some employees appeared bemused by the spectacle, others were clearly alarmed. In particular, store security and managers, in black and yellow shirts respectively, were concerned that the flash mob represented a sophisticated heist of some sort, and called 911 (Improv Everywhere, 2012a). The next scene captures the arrival of the irritated policemen as they tell store managers that they cannot arrest people for wearing khakis and blue shorts, and that the only thing the store can do is ask them to leave (Improv Everywhere, 2012a). Finally, the video shows the agents leaving the premises.
It is worth noting, that the music accompanying the video sounds like the MIDI-style sounds from video games of earlier decades, giving the video a sense of playfulness that was clearly not universally shared during the experience (Improv Everywhere, 2012a). It appears the music selection is oriented to highlight the playfulness of the scene, rather than the tension. Indeed, emphasizing play is a notable tactic of culture jammers.
Part II: Culture Jamming at Best Buy
According to Dery (2010), cultural jamming was first introduced to the public in 1984 by the band Negativland, notable for their criticism of media, politics, and society. Jamming, originates from the illegal practice of interfering with the transmission of citizen band radios, whereas “culture jamming, by extension, is artistic ‘terrorism’ directed against the information society in which we live” (Dery, 1990, p. 1), an information society dominated by consumer ideology and brand images. Moreover, Harold (2004) suggests culture jamming “usually implies an interruption, a sabotage, hoax, prank, banditry, or blockage of what are seen as the monolithic power structures governing cultural life” (p. 192). For certain, as the Best Buy Uniform prank demonstrates, Improv Everywhere used the prank to interrupt or block the routine employee and consumer behavior at Best Buy. Moreover, the video recording of the prank is itself, a critique of the power structures governing consumerism, demonstrating how the police and commercial interests work in concert when social norms of consumer behavior are broken. Accordingly, Improv Everywhere agents demonstrate a sophisticated understanding of culture jamming tactics, given they were able to accomplish their mission without repercussion. What specific tactics did Improv Everywhere use during the prank to navigate the boundaries between critique and protest?
Some scholars and observers of culture jammers suggest their ideas and tactics have origins in the French Situationist movement of the 1960s (Dery, 1990; Goldstein, 2003; Harold, 2007). The Situationist movement built upon critical culture theory, concerning itself with how cultural products were commoditized, providing “illusory notions of our place in the world, often resulting in the obscuration of the real structure of society and our subordination in it” (McQuail, 2010). In short, the Situationist movement decried the Spectacle, the subjugation of social life to mediated consumerism, where “the commodity has attained the total occupation of social life [where] the relation to the commodity is not only visible, but one no longer sees anything but it” (Debord, 1994, p. para. 42). Of importance to the discussion of Improv Everywhere’s culture jamming techniques, is their similarity to the two tactics used by Situationists to bring about a postmodern world, détournement, and dérive.
Détournement is the French word for rerouting, diversion, or hijacking (Wiktionary, 2012). Debord described détournement as the language of anti-ideology and used it to describe the technique of rerouting expressions of capitalist media culture to subvert their meaning, and thus reclaim them (Harold, 2007). According to Harold (2007), examples of the détournement technique include:
Rewording conversations between popular comic-strip characters, reworking the sign on a storefront, making subversive collages out of familiar advertising images, and ‘hijacking’ a public sermon, where a Situationist dressed as a priest declares that ‘God is dead’. (p. 8)
Of course, there is a distinct similarity between Harold’s examples of détournement and the Best Buy prank, given Improv Everywhere agents dressed as Best Buy employees and faced away from the merchandise in a subtle alteration of typical norms associated with consumerism.
The second tactic of Situationists was dérive, a behavior where one or more persons would stop work or leisure activity and drift through urban terrains in search of experiences afforded by the city (Harold, 2007). In addition, Lasn (2000) suggests “the Situationists believed the dérive could largely replace the old twin occupations of work and entertainment, and become a model for the ‘playful creation’ of a new way of life” (p. 103). In this sense, the dérive was a rejection of capitalist and consumerist notions of work and entertainment, offering an alternative for the creation of happiness. Again, there are similarities between the Situationists’ use of dérive and the techniques employed by Improv Everywhere. As noted earlier, nearly every one of the group’s mission conceive public space as a place of performance and play, rather than consumption. Indeed, spontaneous musicals erupt in grocery stores and malls, subways are transformed into art galleries and theatres, and the streets, parks, and stores of Manhattan become places for flash mobs to experiment and play (Improv Everywhere, 2012g). Moreover, all of these diversions occur without participants exchanging money for happiness.
It is clear that Improv Everywhere uses the techniques of détournement and dérive in their pranks. Moreover, culture jammers typically use these tools to help people question the assumed, but not discussed, norms, roles, and constraints of consumerist ideology. For instance, is it safe for this author to go into a Best Buy with khaki pants and blue shirt? On the other hand, can this author go into a store, face away from the merchandise, and not buy anything?
It is important to note that Improv Everywhere makes no claim to be part of a counter-culture or social movement of any kind, rather they distance themselves from such notions (Improv Everywhere, 2012b). Nor does the comedy group link their pranks to the Situationist movement. Indeed, according to Improv Everywhere founder Charlie Todd, “There is no point and…there doesn’t have to be a point. We don’t need a reason. As long as it’s fun” (TedxBloomington, 2011). However, their emphasis on joy, happiness, and fun belie their sophisticated use of détournement, and derive. Indeed, it is difficult to ascertain whether the group is operating meta-prank intended to further subvert consumerism through greater media popularity, or whether they are simply out to have fun. Perhaps a third option is an economic motive.
Part III: Media Technology and Production Economics of Improv Everywhere
Charlie Todd founded Improv Everywhere in 2001 after he and a friend pretended he was Ben Folds, of the Ben Folds Five musical group at a Manhattan bar (Plummer, 2011). Beginning with that first mission, this author catalogued the collective’s rise and evolution based on information available on the Internet. In addition, this author analyzed each mission, tracing the collective’s evolution from obscure beginnings characterized by simple pranks, to a media darling using increasingly inventive and unique pranks. The analysis is useful to identify major inflection points, and begin to infer how the group operates, produces, distributes, and generates revenue from their pranks.
To identify major inflection points and trends in the group’s evolution, this author created a chronological sequence of events in Figure 2 in the appendix, that includes substantive changes in prank techniques, production and distribution changes, media appearances, notable pranks, and commercial ventures. The first major inflection point occurred in 2003 with the introduction of the first flash mob for the No Pants Subway Ride 2K3, where a team of 40 agents rode the subway in their underwear. The next inflection point occurs when the media begins to focus on the group, beginning in 2004. By 2006, Improv Everywhere began posting videos of their missions on You Tube, and by 2008, the Frozen Grand Central mission had gone viral with more than thirty-one million views. The period between 2007 and 2012 demonstrated increased commercialization with joint ventures and corporate sponsorship of the MP3 experiment project. Furthermore, increased national media coverage is coincident with greater commercial success. In addition, it appears that the use of flash mobs, coupled with the use of You Tube as a distribution channel, caused many of the pranks to go viral, which in turn, caused the national media to take notice. Indeed, according to Juno, Vale, and Ballard (1987):
The media can never deny coverage to a good spectacle. No matter how ridiculous, absurd, insane or illogical something is, if it achieves a certain identity as a spectacle, the media has to deal with it. They have no choice. They’re hamstrung by their own needs. (p. 14)
While the rise in commercialization of Improv Everywhere appears to go hand-in-hand with the growing media spectacle, there is little evidence to suggest the group’s goals turned exclusively commercial. In fact, the group draws a distinction between Improv Everywhere projects and commercial efforts, however the members are open to appearances, conference bookings, media consulting, and other ventures (Improv Everywhere, 2012b). Despite the lack of public information on the group’s finances, it is possible to infer the major elements of the business model using publicly available information. This author built a process model showing the production, distribution, and monetization of Improv Everywhere content outline in Figure 1 below:
Process model of the production, distribution, and monetization of Improv Everywhere content.
Figure 1. Business process model for the production, distribution, and monetization of Improv Everywhere content.
Production and Distribution
As Figure 2 outlines, Improv Everywhere conceives, produces, and organizes each mission, although it should be noted that ideas for missions are occasionally crowd sourced. During the organization of the mission, Improv Everywhere recruits agents to participate. Agent recruitment is enabled by electronic communication. Agents record the mission using digital video and still cameras, where both agents and an unsuspecting public are the subject of the work. In fact, this author’s analysis of the missions, show that in more than twenty percent of missions, authority figures are the subject.
Improv Everywhere edit and post the video to You Tube, after the mission is completed. In addition, the video, a mission overview, digital photographs, and agent notes are distributed on the group’s website (Improv Everywhere, 2012g). It appears that You Tube is the primary distribution vehicle for Improv Everywhere content, although the group also has a Facebook page and Twitter account that are used to connect and update audiences (O’Neill, 2010). In fact, Improv Everywhere has almost one million subscribers on You Tube, while only two-hundred and eighty thousand Facebook likes, and thirty thousand Twitter followers, demonstrating the importance of You Tube to the group success (Improv Everywhere, 2012c, 2012d, 2012e). Founder, Charlie Todd acknowledged the importance of You Tube during an interview (O’Neill, 2010):
YouTube has been incredible for us– it’s enabled us to reach an international audience of millions. YouTube has enabled us to communicate directly with our audience without the need of a television network. If we had been doing these projects in the 1990s our only option for exposure would have been the greenlight from an executive at somewhere like MTV or Comedy Central. (p. 1)
Indeed, without the availability of digital recording and production technology, or distribution channels like You Tube, it appears unlikely that Improv Everywhere would have become so popular. In fact, their entire business model is predicated upon the use of social media.
While there is no public data on the group’s finances, their revenue sources are apparent to a casual observer. First, each audience click of the You Tube video triggers an advertisement, and You Tube shows additional advertisements while the video plays. In fact, one of the commercials that aired frequently during the author’s analysis was a Trident commercial that mimicked Improv Everywhere, showing riders in subway car spontaneously bursting into song. In addition, the group sells merchandise, books, and DVDs on their website (Improv Everywhere, 2012f), and solicits public appearances, event engagements, and corporate sponsorship for missions (Improv Everywhere, 2012b). Furthermore, the group raised more than $125,000 to develop a documentary film scheduled to be released in June 2013 (Matt & Andrew, 2012). On the surface, the group appears to operate as a marketing collective that benefits the top tier of performers, although it is unclear whether the producers share the proceeds with the agents. Of course, the business model leads to an important ethical question related to the use or abuse of free labor. To what extent is Improv Everywhere harnessing the free labor of others for private profit? According to Croteau, Hoynes, and Milan (2012), business models dependent on the free labor of individuals “undermine the integrity of the individual by emphasizing a ‘hive’ mentality in which independent thought and achievement is neglected and undervalued in favor of the faceless—and easily replaceable—micro-contributions of many” (p. 314). In truth, agents are easily replaceable with virtually anyone, as is the unsuspecting crowd that is the primary subject of the mission videos. It is doubtful that Improv Everywhere shares profits with the agents, and nigh impossible for them to share profits with the subjects of the videos.
In short, Improv Everywhere is dependent upon media technology for the production, distribution, and monetizing of their work. In addition, like most media concerns, the group generates revenue by selling their audience to advertisers, in addition to selling their media products directly to audiences. Moreover, the group has a symbiotic relationship with the mainstream media, providing them with a spectacle in exchange for coverage that creates awareness for their content, which in turn creates revenues. Of course, the ethics of Improv Everywhere’s business model are concerning, insofar as the producers of the content appear to accrue the majority of the benefit, even though the content requires the labor of the crowd. However, in the use of the crowd, the group’s business model is little different from most modern media concerns.
Part IV: Critical Analysis
There is little question that Improv Everywhere’s missions have tremendous popular appeal. The group created a media spectacle with more than 250 million views on You Tube, replicated around the world, and commercialized by traditional media outlets. In addition, the group has enjoyed considerable commercial success with their media products, generating revenue from a variety of sources, including media products, merchandise, and advertising. Of course, there is one critical question that remains unanswered; what are the intentions of the group? Are the members of the group ideologues seeking to lift the veil of consumer ideology, using Situationist techniques, to help the public glimpse the possibility of a life beyond the false consciousness of consumerism? Is the group simply using the tools of culture jammers to create commercial success? Alternatively, should the public take the group at face value, assuming the group is intent on making the public happy by creating scenes of joy and chaos?
The first proposition argues that the group is operating in the tradition of Situationists, seeking to show the public a glimpse of the possibilities of a postmodern era not dominated by consumerism, where happiness is a function of play rather than consumption. Certainly, the group appears to use Situationist techniques, but differs from Situationists and even other culture jammers like Adbusters, insofar as they have not made public any desire for social change. In fact, the group largely disavows such notions, instead opting to emphasize play. On the other hand, is there a possibility that the entire public view of the group is a meta-prank, designed to use their growing popularity to expose consumer ideology to the largest possible audience. While there is no evidence to suggest this is the case, the idea is consistent with Situationist thought. According to Harold (2007), the Situationists were ever concerned with the Spectacle’s sophisticated ability to appropriate the rhetoric of revolution and repackage it for consumers as image. Indeed, Harold (2007) criticized détournement precisely because the use of consumerist conventions also confirms those same conventions.
Is this the reason that Improv Everywhere never includes a reveal moment in their missions, instead opting to let the audience wonder at the experience, in effect, continuing the prank indefinitely, and resisting the appropriation of its form? Might the larger prank simply be the purposeful withholding of Situationist-like aims? Alternatively, is Improv Everywhere’s use of Situationist techniques a demonstration of the worst fear of Situationist thought, that their rhetoric was appropriated for consumer ends? In absence of a reveal moment, the public may never know. However, this author believes that the commercial logic of Improv Everywhere’s business model is an alluring motive.
Of course, the domination of commercial logic in the public sphere makes economic motives perhaps the easiest to understand. It is clear that Improv Everywhere is generating revenue, although the amount of revenue and its distribution are not clear. Furthermore, irrespective of the amount of revenue generated, the business model socializes labor costs, while privatizing profits. While companies the world over have similar business models, most do not have the dilemma of filming an unsuspecting public as they grapple with the fear and uncertainty of mob behavior. Indeed, despite the joy created by Improv Everywhere’s missions, they each carry a darker side, insofar as their missions use the public’s emotions as the fodder that feeds their business model. In addition to ethical concerns, equally, this author has moral concerns. To what extent is it moral to appropriate détournement and dérive for purely commercial concerns given their origin?
If the public takes the group at face value, meaning commercial success is not the primary motive, rather the group chooses to create spectacles of chaos and joy for the public good, moral, and ethical questions remain, because the pranks have been commercialized. Therefore, irrespective of the group’s motives, the simple fact remains that their pranks have been co-opted by commercial logic. As such, the group has become a paragon of the very consumerist ideology criticized in their missions.
However, when all arguments are considered, and the group is viewed in equal parts as cultural critics, merry pranksters, and a commercial success, perhaps that is enough. Perhaps it is enough to critique the system from within the system, while allowing commercial success to fund the ongoing critique. Perhaps, when viewed through the lens of an ongoing contrast between the Spectacle and the joy of dérive, the movement remains a viable alternative to consumerism in the public’s consciousness, avoiding the fate of earlier revolutions, simply by remaining present as an oppositional force.
Retracing the journey presented in this paper, the author has detailed how Improv Everywhere has captured the public eye with pranks that are a relevant counterforce to consumerism. Indeed, using Situationist techniques, Improv Everywhere helps the public find joy and happiness outside of the twin occupation of work and leisure. In addition, without digital media technology, and the socioeconomic structures of the media industry, it is highly unlikely that Improv Everywhere would have the reach and durability they enjoy today. Despite being co-opted by commercial logic, Improv Everywhere remains an important social phenomenon, offering an opposing voice in contrast to the allure of consumerism.
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Dery, M. (1990). The Merry Pranksters And the Art of the Hoax. Arts. Retrieved from http://www.nytimes.com/1990/12/23/arts/the-merry-pranksters-and-the-art-of-the-hoax.html
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Harold, C. (2004). Pranking Rhetoric: “Culture Jamming” as Media Activism. Critical Studies in Media Communication, 21(3), 189-211.
Harold, C. (2007). OurSpace : resisting the corporate control of culture. Minneapolis: University of Minnesota Press.
Improv Everywhere. (2012a). Best Buy | Improve Everywhere. Retrieved from http://improveverywhere.com/2006/04/23/best-buy/
Improv Everywhere. (2012b). FAQ | Improve Everywhere. Retrieved from http://improveverywhere.com/faq/
Improv Everywhere. (2012c). Improv Everywhere. Retrieved from http://www.facebook.com/improv.everywhere
Improv Everywhere. (2012d). Improv Everywhere (ImprovEvery) on Twitter. Retrieved from https://twitter.com/ImprovEvery
Improv Everywhere. (2012e). Improv Everywhere | You Tube. Retrieved from http://www.youtube.com/user/ImprovEverywhere?feature=g-all-u
Improv Everywhere. (2012f). Merch | Improve Everywhere. Retrieved from http://improveverywhere.com/merch/
Improv Everywhere. (2012g). Missions | Improve Everywhere. Retrieved from http://improveverywhere.com/missions/
Juno, A., Vale, V., & Ballard, J. G. (1987). Pranks! San Francisco, CA: Re/Search Publications.
Lasn, K. (2000). Culture jam: The uncooling of America. New York: Quill.
Matt & Andrew. (2012). Improv Everywhere Film. Retrieved from http://www.kickstarter.com/projects/improveverywherefilm/improv-everywhere-film?ref=live
McQuail, D. (2010). Mcquail’s mass communication theory (6th ed.). London; Thousand Oaks, CA: Sage Publications.
O’Neill, M. (2010). Interview: Prankster Charlie Todd on YouTube & The Success Of Improv Everywhere. Retrieved from http://socialtimes.com/interview-prankster-charlie-todd-on-youtube-the-success-of-improv-everywhere_b18037
Plummer, W. (2011). Charlie Todd of Improv Everywhere Tells Us About His Latest Experiment, Favorite Pranks, and Future Plans. Retrieved from http://blogs.villagevoice.com/runninscared/2011/07/charlie_todd_improv_everywhere.php
Rock, R. (2012). Improv Everywhere Analysis. Retrieved https://docs.google.com/open?id=0B5nQSd5ycZwGOTFzQWpmVm9KLUE
Rodriguez, A. (2010). Performing in the public sphere: Flash mobs and their participants. University of North Texas, Denton Texas. Retrieved from http://web3.unt.edu/honors/eaglefeather/wp-content/2010/08/Rodriguez-Atilano-081210-SE.pdf
TedxBloomington (Producer). (2011). Charlie Todd: The shared experience of absurdity. Retrieved from http://www.ted.com/talks/charlie_todd_the_shared_experience_of_absurdity.html
Wiktionary. (2012). détournement – Wiktionary. Retrieved from http://en.wiktionary.org/wiki/d%C3%A9tournement
The evolution of Improve Everywhere between 2001 and 2012.
Figure 2. This figure charts the substantive events that characterize the evolution of Improv Everywhere between 2001 and 2012, including changes in approach, notable pranks, media coverage, and commercialization.
In the last decade, and coincident with the advent of broadband Internet technology, Internet regulation has been the subject of intense public debate over network neutrality, a legislative concept designed to provide Internet consumer/producers the right to open and non-discriminatory access to the network. At the heart of the debate is the determination of whether the Internet constitutes a commons, and if so, whether the commons needs to be regulated to protect equal and anti-discriminatory access in what is now, a largely privatized network. Of course, the Internet is not the first privatized network that engendered the commons debate. Arguably, while the Internet is a unique infrastructure in many respects, it also has significant similarities to earlier networks, such as roads, railroads, the telegraph, telephone networks, radio networks, and television networks (Blondheim, 2004). Indeed, many of these networks created positive network externalities that constituted public goods, and as such were considered commons subjected to common carriage law, a form of regulating the network infrastructure to protect the public good. Therefore, examining the Internet network neutrality debate through the lens of common carriage, while not new, is useful insofar as it centers the discussion on the firm foundation of historical precedent, and captures the essence of what is at stake. As such, this paper will cover a brief historical background of common carriage, describe the application of common carriage principles in the early Internet, compare and contrast proposed network neutrality legislation with common carriage principles, and conclude with a considered recommendation advocating for network neutrality legislation.
Common Carriage Background
Common carriage is a legal principle that intends “to guarantee that no customer seeking service upon reasonable demand, willing and able to pay the established price, however set, would be denied lawful use of the service or would otherwise be discriminated against (Noam, 1994, p. 436). The origins of common carriage law predate English law and whose precursors “go back to the Roman Empire and the legal obligations of shipowners, innkeepers and stable keepers” (Noam, 1994, p. 437). English common law supports the notion of common carriage, beginning with the 1701 case, Lane versus Cotton, in which Justice Holt asserted “that one in the public employment can not refuse the duty incumbent upon him and that there would thus be causes of action for a postmaster refusing a letter, inn keeper refusing a guest or blacksmith refusing to shoe a horse” (Moglen, 2009, p. 1). As such, common carriage’s core principal is that of anti-discrimination.
Common carriage was applied in the United States initially as common law, most notably to regulate the activity of the railroads, in absence of specific congressional legislation governing interstate commerce (“Western Union Telegraph Co. v. Call Pub. Co.,” 1901). In addition, common carriage was applied to the first U.S. telecommunications infrastructure, the telegraph network, as a result of discriminatory behavior by Western Union (“Western Union Telegraph Co. v. Call Pub. Co.,” 1901). Western Union’s discriminatory practices extended far beyond choosing winners and losers in the open market; the company went so far as to practice censorship by choosing political sides and only offering the perspectives of candidates whose policies favored Western Union (Rock, 2012; Wu, 2006a). As a result of this and other corporate abuses of monopoly power over the telecommunications network, common carriage over telecommunications was codified into law with Title II of the 1934 Communications Act (Noam, 1994). Since then, regulated telephone companies have been generally referred to as ‘common carriers’ and as such, have the obligation to provide non-discriminatory access to telephone service across the nation, and in exchange are not held liable for the content of traffic across the network.
The Internet and Common Carriage
To say that the Internet was created as a result of the common carriage principle of non-discrimination is not an overstatement. There was a time, prior to the 1980s, when consumers had to purchase their telephones from a Bell company and were not allowed to attach any other device to their phone line (Wu, 2006b). However, a series of court decisions, including the Hush-A-Phone and Carterfone decisions, led to the FCC to enact “a strong non-discrimination rule for consumer network equipment, and even blocked the regional Bell operating companies from offering such equipment” (Wu, 2006b, p. 33). The rule sparked a new wave of commercial innovations that saw the development of fax machines and modems, antecedents of modern networking.
Moreover, principles of non-discrimination were built into the very architecture of the Internet. According to Lessig and Lemley (2001), the design of both the Internet and it’s predecessor ARPANET were based on the end-to-end design principle which organizes the placement of intelligence at the ends, while making the communications protocols simple. “One consequence of this design is a principle of non-discrimination among applications” (Lessig & Lemley, 2001, p. 927). In essence, the network is a highly sophisticated set of dumb pipes, in the sense that any network or device can interconnect to the Internet by following the basic communication protocols. Of course, the last thing that cable and DSL providers want to be are ‘dumb pipes’ and therefore, many use a variety of strategies, including discrimination, to avoid becoming a commodity (Knowledge@Wharton, 2009). Indeed, there is little to prevent broadband providers from using their monopoly power over the network to introduce discriminatory behaviors that favor their commercial interests.
The Internet and Net Neutrality
The advent of the Internet has ushered in new era of debate over non-discrimination on the network, partly because with the Telecommunications Act of 1996, the FCC designated cable and DSL as ‘information services’, rather than telecommunications (United States. Congress., 1996), and as such, they are not designated as common carriers. Moreover, freed from constraint, telecommunications providers have used their network power to discriminate against perceived threats. For example, Telus Corporation blocked subscriber access to a Union website critical of their labor practices (CBC News, 2005). In addition, Madison River Communications, a DSL provider, blocked subscriber access to Vonage, a company with voice-over-IP technology that allows subscribers to place calls over the Internet, rather than paying for traditional phone service (Sandvig, 2007). Finally, Comcast Corporation intentionally blocked subscriber access to Bit Torrent, a popular peer-to-peer file sharing protocol (Weiser, 2009). Nor is the discrimination likely to end any time soon.
For example, former AT&T Chairman and CEO Whitacre (BusinessWeek, 2005) described the motivation for AT&T to discriminate against Internet upstarts like Google, Vonage, and MSN, noting:
Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes? (p. 1)
It is not surprising, that when freed from the constraint of common carrier classification, broadband providers use discriminatory practices to create and sustain competitive advantage; it is in their nature to do so.
However, the Federal Communications Commission (2010) recently passed a set of Open Internet rules to address broadband discriminatory practices. The Open Internet rules force broadband providers to be transparent about their network management practices, prevent the blocking of legal content, applications, services, or devices, and prevent unreasonable network discrimination (Federal Communications Commission, 2010). While the rules appear to provide a basis for the FCC to deal with discriminatory practices, there are several problems worth exploring.
First, the FCC treats fixed broadband and wireless broadband differently, providing far more leeway for cellular providers to discriminate, particularly against competing services. Second, there remains considerable question as to whether the FCC has the legal authority to enforce such rules, particularly given the FCC’s original classification of broadband as an ‘information service’. In fact, the DC Court of Appeals, ruling on the Comcast and BitTorrent FCC decision, recently “struck down a federal rule that required broadband providers to keep their networks open” (Puzzanghera & Guynn, 2010, p. 1). Furthermore, Senate Republicans recently attempted to put a bill on the floor to overturn the FCC’s Open Internet rules, however the bill was narrowly rejected (Puzzanghera, 2011). It appears likely that the FCC Open Internet rules will continue to be challenged in the legislature and the judiciary until the Internet is treated legally as a commons.
Of course, the critical issue with the Open Internet rules is the lack of legal recognition of the Internet as a commons. Instead, the emphasis is on the Internet is as an important commercial platform for innovation and growth that must be protected with administrative rules rather than law. While the Open Internet rules are an important step in anti-discrimination, they fall short of common carriage law insofar as they fail to treat the Internet as a legal commons that produces a public good. Moreover, the Open Internet rules are not a legislative solution and remain dependent on the support of the FCC. This author suggests that the anti-discrimination principles inherent in network neutrality proposals come largely from the common carriage principles of earlier legislation. Moreover, the current Open Internet rules contain important anti-discrimination principles, but lack the force of law. This author recognizes that despite the progress inherent in the FCC rules, net neutrality legislation is required to assure a lasting solution that recognizes the importance of the Internet to public good.
From the telegraph to the Internet, each new communication technology creates a similar debate. To what degree does the network constitute a public good and require regulation as a commons? In the past, common carriage laws have been used to assure that corporations are unable to use their network ownership to discriminate. However, the recent net neutrality rules enacted by the FCC, while providing an administrative basis to prevent the worst forms of discrimination, falls far short of common carriage legislation of the past, and continues to be challenged by lawmakers and the judiciary. Therefore, this author suggests that the fight against network discrimination has only just begun, until such a time where anti-discrimination law for the Internet is a reality.
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Community owned and operated wireless broadband is one of the fronts in a widespread battle over the future what Benkler (2006) considers the ‘institutional ecology’ of the Internet, or all of the social, political, and economic constitutive choices faced by society as it grapples with the implications of the network. In essence, the series of choices and decisions will determine the extent of agency and constraint, as described by Croteau, Hoynes, and Milan (2012), provided or imposed over various public and private stakeholders in institutional ecology of the network. The future of municipal wireless broadband represents one such choice faced by society with important implications for the future of network access.
According to the FCC (2011), “broadband is a foundation for economic growth, job creation, global competitiveness and a better way of life” (p. xi). Yet, the FCC (2011) also notes that more than 100 million Americans lack broadband access at home, roughly a third of the country. Benkler (2006) describes the problem as a last mile problem, meaning the last mile to the home is often the most expensive mile for infrastructure providers, particularly in rural areas, or urban areas that lack an economically attractive demographic for private industry. Moreover, Benkler (2006) advocates the buildout of municipal wireless broadband because of the positive externalities that municipalities have to gain, such as increased economic growth, improved healthcare, or lower unemployment. Indeed, Ferree (2011), investigated the impact of broadband adoption on employment rates and unemployment, finding that “broadband adoption has a positive impact on a county’s employment growth rate and a negative impact on a county’s unemployment rate” (p. 34). In addition, Kolko (2006) found significant evidence of a persistent digital divide, particularly in low-income urban areas. Moreover, Kolko’s (2006) study suggested strong evidence that increased urban broadband use translated to users seeking healthcare information online. Thus, municipal wireless broadband can be a particularly attractive solution for both urban and rural areas suffering from the digital divide, and can create positive externalities for municipalities seeking to improve their communities. What stands in the way?
In The National Broadband Plan, the FCC (2011) acknowledges the challenge in municipal broadband wireless deployments as a policy issue, resolving to “clarify the congressional mandate allowing state and local entities to provide broadband in their communities and do so in ways that use public resources more effectively” (p. xii). The congressional mandate referenced is none other than the Telecommunications Act of 1996, which states that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (United States. Congress., 1996, Section 253). Despite the clarity of the law, municipalities seeking to implement municipal broadband networks, have faced intense political and legal challenges from telecommunications industry actors. The city of Abilene, Texas sought to implement a broadband network, however was prevented from doing so, given Southwestern Bell “persuaded the Texas legislature to pass a law that prohibited local governments from providing high-speed Internet access” (Benkler, 2006, p. 407). After appeal, the Federal Appeals Court in Washington D.C. ruled that ‘any’ did not mean municipalities and the city was prevented from moving forward (Benkler, 2006). This is but one example of the constraints faced by municipalities in seeking the derive the positive externalities of broadband by implementing their own network in the face of tension from corporate interests.
Of course, telecommunications corporations do not want to see the rise of municipal broadband because of the challenge to their oligopoly. Therefore, there are intense efforts at lobbying underway. Comcast Corporation, one of the largest broadband providers in the nation, is also one of the nations largest lobbying spenders, spending nearly $20M in 2011 alone (OpenSecrets.org, 2012). Moreover, Comcast sits on the Communications and Technology Board of the American Legislative Exchange Council, a conservative, free market bill mill that produces draft bills for federal and state legislators (sourcewatch.org, 2012). ALEC’s position on municipal broadband favors the telecommunication’s industry arguing that municipal broadband networks could negatively affect free markets and “erode consumer choice by making markets less attractive to competition because of the government’s expanded role as a service provider (ALEC, 2012, p. 1). However, Sadowski and De Pender (2009) found that the presence of municipal broadband actually increased competition. It appears to this author that the arguments against municipal broadband by telecommunications providers are more oriented towards preserving their interests rather than serving the public interest, which is exactly what a publicly-owned corporation should do. In fact, the reason the digital divide exists, is because telecommunications providers have serviced the segment of the population that can afford broadband, a behavior that is expected. However, their desire to constrain the agency of municipalities that are not being served is both self-serving and an obstruction of social and economic progress.
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Croteau, D., Hoynes, W., & Milan, S. (2012). Media/society : industries, images, and audiences (4th ed.). Thousand Oaks, Calif.: SAGE.
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Ferree, P. E. (2011). The effect of broadband Internet adoption on local labor markets. Master Public Policy in Public Policy, Georgetown University, Georgetown. Retrieved from https://repository.library.georgetown.edu/bitstream/handle/10822/553724/ferreePaul.pdf?sequence=1
Kolko, J. (2006). Why should cities provide wireless broadband access? Paper presented at the Telecommunications Policy Research Conference. Available at SSRN: http://ssrn.com/abstract=2104394
OpenSecrets.org. (2012). Lobbying Spending Database: Top Spenders Retrieved August 12,, 2012, from http://www.opensecrets.org/lobby/top.php?showYear=2011&indexType=s
Sadowski, B. M., & De Pender, M. (2009). Do municipal broadband networks foster network competition?: Case study evidence from the Netherlands. Paper presented at the Telecommunications Policy Research Conference. Available at SSRN: http://ssrn.com/abstract=1999842
sourcewatch.org. (2012). Comcast Corporation – SourceWatch Retrieved August 12,, 2012, from http://www.sourcewatch.org/index.php?title=Comcast
United States. Congress. (1996). Telecommunications Act of 1996. (0160534887). Washington DC: U.S. G.P.O. : For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office Retrieved from http://transition.fcc.gov/Reports/tcom1996.pdf.