Before riding her horse into a bonfire, Brünnhilde releases Wotan’s ravens to spread the flames, thus completing Richard Wagner’s “Ring Cycle” in Götterdämmerung. Brünnhilde’s aria ends with her self-immolation, as the funeral pyre engulfs all of Valhalla and its gods, bringing the end of the world. 1Id. at 62. See also WILLIAM O. CORD, AN INTRODUCTION TO RICHARD WAGNER’S DER RING DES NIBELUNGEN, 10 (1983) (“The poem relates the actions that lead to and conclude with the destruction of the ancient gods, the doom of the corrupt world they had shaped, and the rebirth of the universe.”).
Enter our twenty-first century Brünnhilde, FCC Chairman Ajit Pai. The FCC’s repeal of net neutrality protections4 is nothing less than an apocalyptic divestment of the agency’s duties and regulatory authority. The FCC’s Restoring Internet Freedom Order (the “2017 Order”) changes and attacks the character of the Internet as the foundation for modern speech and democratic debate. In the spirit of Wagner, the casualties of the FCC’s proposal include niche music genres that challenge perceptions of artistry and cultural norms.5 Rather than leading to a rebirth and renewal, the FCC’s repeal of Tittle II protections turns control of the Internet over to Internet Service Providers (ISPs) who the FCC’s rules will allow to block, throttle, or require payment for Internet priority or protection against Internet degradation due to ISP management.
While the Internet created some hurdles for musicians and copyright holders,7 the overall advantages of global networking offered profound and positive impacts on artists. Selling merchandise, announcing events, and increased outlet diversity helped artists thrive.8 Artists no longer had to rely on major labels or broadcasters to pick up their songs in order to distribute them. In addition to streaming and MP3 file sharing, subcultures and forums arose to advance niche music genres. For example, the online forum Reddit has a growing catalogue of “recommended niche” genres available for perusal: the classical genre network has thirteen subgenres listed; electronic music has an more than eighty linked subgenre forums; the combined rock/metal category has nearly as many subgenre communities.9 This rich cultural network of music styles could not exist without regulations protecting a truly free and open Internet.
The repeal of net neutrality deserves review as it impacts music diversity, a valuable democratic and cultural asset. First, the legal history of net neutrality leading up to the repeal of the 2015 Open Internet Order (the “2015 Order”) will contextualize the new regulatory regime. Second, music diversity will be defined and recognized as a valued part of democracy, framing the effects of the 2015 Order. Third, the paper will demonstrate how the prospective consequences of the FCC’s repeal will harm music diversity by giving broadband providers more power over content creators, regressively forcing artists into markets subject to the FCC’s “public interest” standard. Finally, the public interest standard will be analyzed as adverse to music diversity.
I. LEGAL HISTORY OF NET NEUTRALITY
The FCC’s 2017 Restoring Internet Freedom Notice of Proposed Rulemaking (the “NPRM”) indicated the FCC’s intent to adopt regressive policies that would prevent equal Internet access and distribution of information.