FCC Poised To Let Hollywood Break Your TV And DVR

from the based-on-nothing dept

Earlier today, we wrote about how even the MPAA's own members have shown they don't need to break your TV and DVR with selectable output control in order to release video-on-demand movies prior to DVD releases. Yet, if you hadn't noticed, the MPAA has been on a big rampage lately insisting that they need to do this to add yet another window to its release schedule. That's because the way Hollywood thinks is that they only way to make money is to take away what consumers want and, instead, add more annoying "windows." This is faulty thinking. However, it's even more faulty to claim that they need to break your TV and DVR to release this content. The MPAA's basic argument is that without this, there will be piracy -- but even the MPAA admits that every movie is pirated by the time it's in the theaters (i.e., before it would need this window).

Want to know why the MPAA got 60 Minutes to run its propaganda piece on movie piracy this week? Because it knew this fight was close to a deciding point, and a little moral panic might help tip it over the edge into Hollywood's favor.

For a while, the FCC has pushed back and refused to grant the movie studios an exemption in order to break your TV, but word is coming down that, despite promises to make decisions based on "evidence," the FCC is ready to give in and let the MPAA break your TV and DVR in order to stop you from recording the movies it releases. Why? There's no good reason at all, other than the administration's cozy relationship with Hollywood these days. The industry's own actions show that this will do nothing to make it easier for it to release movies earlier. The industry's own claims show that it will do nothing to decrease piracy.

The only thing it will do is harm millions of consumers who believe their TV and DVR should work the way they were intended to work.

Public Knowledge is asking people to send a letter to the FCC, protesting this decision. I'm not a fan of "form letters," but I would suggest reading over the suggested letter and then crafting your own (polite, well argued) version, and sending it to the FCC. Hopefully the FCC realizes that breaking your TV and DVR for the sake of protecting Hollywood's billions (which still continue to go up) is not progress. It's a blatant attempt to take away consumer rights.

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MPAA Tells The FCC: If We Don't Stop Piracy, The Internet Will Die

from the moral-panic dept

Never let it be said that the folks in Hollywood aren't good at coming up with a totally fictional horror story. I just have a problem when they use it not to entertain, but to create a moral panic to push the government to pass laws in their favor. In discussing the recent 60 Minutes piece that was really nothing more than an MPAA scare tactic, some suggested that it was really just a first step in the process of getting the government to make sure net neutrality rules had a special Hollywood exception. So, it's interesting to note that just before that 60 Minutes episode aired (and just before Halloween), the MPAA sent a "scary" filing to the FCC warning it how the US would always be a broadband laggard if it didn't stomp out piracy. The full filing (warning:pdf) claims, repeatedly, that piracy is sucking up all our bandwidth and getting rid of that would somehow make it cheaper to install faster internet connections.

The Commission has projected that it could cost $350 billion to ubiquitously deploy broadband networks capable of delivering 100 Mbps, which is rapidly becoming the international standard. The Commission, however, should not ignore that illegal content accounts for a vast amount of online traffic. Thus, it could generate substantial savings in this tremendous build-out cost -- to be borne by both government and private sector investment -- by encouraging construction of networks that are designed not on the basis of accommodating capacity-hogging transmissions of unlawful content but rather with the goal of providing consumers a rich broadband experience.

And, of course, it pushes for kicking file sharers off the internet (it hides this by calling it "graduated response," of course, rather than the more common term "three strikes"). The filing also goes on about how the MPAA is just so sure that ISPs can stamp out piracy, and because of that, it thinks the government should force them to get on it.

The MPAA wastes little time mocking those who disagree with its position, and suggesting that the FCC "pay no heed" to consumer concerns:

[The] Commission should pay no heed to assertions by some members of the advocacy community that the problem of content theft can be ignored because some amount of legitimate e-commerce already occurs through vendors such as iTunes.... The same holds true for the preposterous notion that the law should be ignored unless a property owner can demonstrate that a thief, in the absence of stealing, otherwise would have legitimately purchased a stolen product. A shoplifter who steals a DVD from a store in a mall is not immune from security intervention, let alone prosecution, simply because he might not have planned to buy the product that he attempted to steal.

Except, of course, there's a huge difference there. If someone steals a DVD it's no longer there for someone else to buy. If someone who never would have purchased the movie views it online there's no loss. it's difficult to see how the MPAA can simply ignore this while assuming that FCC commissioners are too stupid to grasp this rather simple economic concept.

But where the filing really comes into its own in being laughably funny is where it tries to claim that if the FCC doesn't do this, the internet will effectively die. How does it get there? Well, first, it claims that the reason people use the internet is to view content from Hollywood. And, if file sharing keeps up, there won't be any of that content left, and then why would anyone use the internet? Think that's an exaggeration? How else do you interpret this:

Quite clearly, it is the promise of access to the content flowing over the Internet's network architecture that motivates Americans to adopt broadband. The Internet without content would be nothing more than a collection of hardware; a series of computer links and protocols with great capacity to communicate but nothing to say. Television once was unfairly derided as little more than a toaster with pictures. In the absence of compelling content, the Internet would offer consumers even less value than that proverbial toaster. It is the content that flows over and through the Internet that makes the breakthrough technology so potentially powerful.

Yes, because even though the internet existed for decades before the folks at the movie studios had even heard of it, they had nothing to say, at all, until people could start sharing the latest camcorded blockbuster. Do they really think people are this stupid? Sorry, Hollywood, but it's not "the content" that you're thinking about that makes the internet so powerful. It's the ability to communicate. Sure, the content is a nice-to-have, but the internet grew and grew because it let people talk to each other, not because it was another broadcast medium. This fantasy story by the MPAA also leaves out the fact that more content than ever before is being produced today, even as "piracy" numbers have gone up. And, oh yes, once again, the movie business is hitting record highs at the box office. Funny that the MPAA seems to spend so much time insisting that its industry is dying, while leaving out the record revenue bit. Instead, it just keeps jumping out and yelling that piracy will kill the movie business...

And then it gets into rewriting history, by insisting that every new technology is only successful if the big media companies support it:

Throughout history, whenever transformative communications technologies have captured the imagination of consumers, compelling content has been the vehicle for forward progress.

Apparently, the MPAA is unfamiliar with the telephone. Hopefully, the FCC is a bit more familiar with that particular technology.

The filing goes on and on like this, designed to "scare" the folks at the FCC with a bit of a moral panic, but only inducing laughter (good show, Hollywood) from anyone with any actual understanding of technology, history and copyright. Another favorite tidbit is the MPAA's demand that the FCC not pay attention to how incredibly screwed up every single attempt at using technological measures to stop piracy has been in the past:

MPAA does not want the Commission's consideration of the important overarching issue of unlawful online conduct to be derailed by backward-looking debates about the pros and cons of any given technology, particularly those that already have been surpassed by new innovations. MPAA firmly believes that future developments will yield an entirely new generation of ever-more-sophisticated online protection technologies.

In other words, please ignore how badly we've screwed up in the past. Don't worry about things like rootkits and security vulnerabilities we've created. Also, ignore the fact that DRM doesn't work and only punishes our legitimate customers while driving more people to piracy. That would be a waste of time. Really.

And finally, I leave you with the most stunning statement of all, along those lines. One that I'm amazed the MPAA lawyers let go through in this filing, because it absolutely has to come back to haunt the MPAA in the future. In responding to concerns from lots of different people, including consumer advocates and consumer electronics firms that the various technological protection measures the MPAA wants to force on ISPs will harm, the MPAA states:

That a tool intended to stop unlawful conduct could be put to ill use, however, is not an argument for prohibiting the use of the tool....

Wait... isn't that exactly the argument that the MPAA has used for years against every new file sharing technology out there? Wasn't it the crux of the Grokster lawsuits? That because the tool could be put to ill use, it needed to be prohibited? Yet, now, suddenly it doesn't want its own technologies prohibited just because they can be put to "ill use." Double standard, much?

This is nothing but a typical moral panic from Hollywood. They are storytellers out there, and they know how to craft a horror story. Hopefully, though, the FCC reviewers of this particular fantasy will give it the thumbs down for simply being totally unbelievable.

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Friends Don't Let Friends Use FCC Broadband Competition Data

from the amen dept

For many years, we've been among those (helped along by the usually excellent GAO) pointing out that the FCC's "broadband competition" stats were totally bogus. They relied on a rather bizarre way of counting competition. First, if a single household in an entire zipcode got broadband (er, actually not really broadband, but we'll get to that), then everyone in that zip code was counted. On top of that, the definition of broadband was ridiculously low. This has been known for years, and the FCC kept putting out the same bogus stats every years -- sometimes even admitting that it knew the stats were bogus, but it didn't have anything better. More recently, to its credit, the FCC is trying to get better about both how it defines broadband and how it counts things -- but that's just opened up opportunities for the telcos to simply tell the government what sort of coverage they offer, without having to reveal any actual data.

But, still, with the bogus FCC data out there, many folks are trying to claim that there's robust competition in broadband in the US. Thankfully, Julian Sanchez is pointing out that friends shouldn't let friends use FCC broadband data to discuss competition, and highlights the ridiculousness of the claim that 88% of zip codes have "four or more" broadband providers. It's even worse than Julian notes. While he points out that in many cases, some of the providers in question are mobile broadband providers offering up pokey EVDO connections, he neglects to mention that most of these connections cost a ton and come with ridiculously low usage caps -- such that they're not really broadband offerings at all. In fact, most 3G broadband data offerings have explicit limits in their contracts saying they cannot be used as primary broadband connections. But, it doesn't stop the same lobbyists who happen to be paid by the same telcos who make these policies from claiming that there's robust broadband competition.

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Paramount COO Shows FCC How To File Share, Blames Tech Companies, Has FCC Hide Its Presentation

from the funny-how-that-works dept

Last week, the FCC held what was ostensibly a panel discussion about the National Broadband Plan, but which was actually focused on copyright issues. How, exactly, is copyright an issue for broadband? Well, mainly because the entertainment industry has been trying for years to get ISPs to act as copyright cops... and apparently the FCC felt the need to hear them out. While the deck was mostly stacked in favor of the entertainment industry in terms of speakers, thankfully the FCC allowed Gigi Sohn of Public Knowledge to take part as well -- and she questioned whether the FCC even had any mandate over such issues and wondered why the hearing was even being held. However, beyond stacking the deck of speakers, it appears the FCC gave significant other beneficial treatment to entertainment industry speakers.

Paramount's COO, Frederick Huntsberry, not only was given twice the amount of time to speak as the rest of the speakers had (10 minutes, instead of five, as Gigi was told), but also was able to convince the FCC that his talk was "owned" by Paramount, and should not be placed online -- as the FCC has done with all its other hearings. Wow. Yes, this was a public government hearing. Thankfully, the folks at Public Knowledge went through a low quality video of the whole proceeding and pulled out Huntsberry's part, where he not only demonstrates how file sharing works for the FCC, but goes on to implicate plenty of companies as aiding in the process, including Google, Yahoo, eBay, Boxee and others:

In the video, he demonstrates using Mininova and Drop.io (which is an amazingly useful site for many things that have absolutely nothing to do with unauthorized file sharing -- and is now being unfairly tarred by Paramount). There isn't really anything surprising in the video. He basically shows what everyone knows: it's easy to share files these days. But he seems to miss the point of that. That is, he wants the gov't to come in and try to stop this (an impossibility), rather than recognizing that it's time for him to shift his business model. Yes, distribution is cheap and easy these days. In most businesses when distribution becomes cheaper and easier, that's a good thing. Why is it that Hollywood top execs still can't figure out how to take advantage of it?

Mehan Jayasuriya points out the many problems with the way the FCC handled this whole event:

• Any presentation delivered at a public government hearing should be made available to the general public in a convenient format. Not everyone is able to travel to Washington D.C. for hearings and those who cannot should not be excluded--rather, they should be encouraged to participate in the debate. The mission statement on the Commission's new Broadband.gov site seems to agree: "A great way to create a connected America is to involve all Americans in the development of a National Broadband Plan. The FCC welcomes civic participation, and we look forward to more interaction through this website." If Paramount was concerned that its video would encourage "piracy," then the company should not have presented it at a public hearing. It's as simple as that.
• All of the other presentation materials for all of the other workshops are available on the FCC's website, so that citizens can download, read, comment on, reference and critique them. Why should Paramount's statement be treated any differently?
• During the presentation, Huntsberry seems to suggest that a number of legitimate technology companies, including Drop.io, Twitter, Google, Facebook, Apple, Boxee, Sony, LG, Yahoo!, PayPal and Rapidshare, are arguably acting to enable or encourage unlawful filesharing. These companies and the users of their products should have an opportunity to respond to this allegation.
• In the beginning of the clip, Huntsberry walks us through a timeline of when various camcorded copies of Star Trek were leaked to the Internet. This timeline provides a great example of how widespread the problem of camcording is, though it's worth noting that camcording is already illegal in most U.S. States and has little relevance in the context of this workshop (it's also worth noting that Star Trek made over $200 million at the box office regardless of the fact that camcorded copies were available within hours of its theatrical release). This evidence that films are commonly pirated while still in theaters undermines many of the arguments made by the studios in the FCC's Selectable Output Control proceeding (i.e. "We need to be granted the power to shut off outputs on the back of your A/V gear, otherwise you will unlawfully copy the films that we broadcast via cable").

Not only did the FCC treat Paramount's presentation with kid gloves, the agency also treated the Hollywood execs preferentially throughout the course of the workshop. Upon entering the room where the workshop was held, attendees were greeted by a massive vinyl banner--presumably belonging to Paramount--on which the aforementioned Star Trek timeline was printed. While I appreciate the fact that a visual aid can be helpful, I can't help but feel like a PDF file submitted to the record would have sufficed.

But that's not all. Though these workshops were technically less procedural in nature than a formal hearing would be, MPAA Chairman and CEO Dan Glickman was repeatedly allowed to call his technical expert, MovieLabs CEO Steve Weinstein, up to the stand to chime in with additional comments--even though nothing he said was actually technical in nature. The Commission allowed Glickman to do this so many times that Weinstein also started calling others from the audience up to the stand, including Disney Executive Vice President Preston Padden and Disney Vice President Troy D. Dow. Perhaps I'm being overly cynical but I doubt that the Commission would have allowed any of the other panelists to engage in this kind of behavior.

And, again, uh.... what does copyright have to do with broadband policy in the first place? And where is it in the FCC's mandate that it has any say in copyright policy?

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FCC: We Want Net Neutrality

from the yes,-but... dept

As was rumored last week, FCC boss, Julius Genachowski, gave a speech where he pushes to have the FCC's "principles of network openness" codified into law. Basically, he's come out in support of a net neutrality law, giving the FCC the power to regulate the issue. In the speech, he suggests that the four principles that were already put forth by former FCC chair Michael Powell get two additions, and have all six codified as law. The first four are:

• Freedom to Access Content. First, consumers should have access to their choice of legal content
• Freedom to Use Applications. Second, consumers should be able to run applications of their choice.
• Freedom to Attach Personal Devices. Third, consumers should be permitted to attach any devices they choose to the connection in their homes.
• Freedom to Obtain Service Plan Information. Fourth, consumers should receive meaningful information regarding their service plans.

To that, Genachowski adds the following two:

• The fifth principle is one of non-discrimination -- stating that broadband providers cannot discriminate against particular Internet content or applications.
• The sixth principle is a transparency principle -- stating that providers of broadband Internet access must be transparent about their network management practices.

I have to admit that the sixth principle sounds a lot like the fourth, and the whole thing remains pretty vague. The more interesting bit is the plan to include wireless technologies in what's covered here, something the FCC hasn't paid nearly as much attention to in the past.

While I believe that the basic concept of a neutral internet is very important to keeping the internet as a platform for innovation, I have to admit that I'm quite nervous about any attempt to put it into the law. First, many are noting that the telcos will undoubtedly heavily lobby the process to make sure that the final legislation has plenty of loopholes and quid pro quo aspects in it. As Broadband Reports notes:

While anyone and everyone will participate, you can expect lobbyists for AT&T, Comcast and Verizon to continue to get the best seats. Be mindful that lobbyists will likely work very hard to make these principles as weak as possible so they can only be used in the most egregious instances of foul play. This is a perfect opportunity for telecom lobbyists to pre-empt tougher federal laws, that not coincidentally picked up steam in Congress last week.

Also be aware that when lobbyists see discussions of "transparency," their immediate thought is that it's a perfect opportunity to push harder for low usage caps and high per-byte overages. Mega-carriers believe that as long as they're facing expectations of honesty when it comes to network management, they might as well use the opportunity to their advantage in almost vindictive fashion. Expect the industry's continued dream of shifting from flat-rate pricing to metered billing to play a starring role as the rules get hashed out.

Not surprisingly, the broadband providers rushed out prepared statements that all start off with "applause" for Genachowski, followed by something rather different than applause... each positioning reasons for why putting such principles into law is a bad, bad idea. In other words, expect a big fight and any law to be greatly watered down.

My biggest fear, honestly, isn't in what happens with this particular law, but what happens down the road. I believe that Genachowski really is committed to reasonable internet principles. But once we've given the FCC a mandate to regulate how the internet works, then those laws can and will be updated and changed. What if the next FCC chair is a former telco exec -- certainly not outside the realm of possibility. Opening up that door is likely to result in some very bad legislation down the road.

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The FCC, PTC And Bogus Indecency Counts

from the the-indecent-thing-is-the-process dept

Three years ago, we wrote about the "roller coaster" of indecency complaints to the FCC. Basically, there are very, very few indecency complaints, until one particular organization alerts its members to all complain at once. What's silly is that the FCC is often influenced by this, even though most of the people complaining never actually saw the TV content in question. What's even sillier is that the FCC apparently (very quietly) changed its process to make it easier for this group to stuff the ballots.

Let's start with constant FCC watcher, Matthew Lasar, who notes the latest roller coaster swing:

How come the latest stats, in this instance for the first quarter of this year, show the viewers relatively calm at 578 complaints in January, then 505 in February, followed by 179,997 in March?

179,997? Um, did we miss something? Did television really get that much more indecent in March? No worries. In these situations, we know what to do. We go over and check out the Parents Television Council's website. And sure enough, there's a plausible instigator--a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV's Family Guy.

Yes, Family Guy is apparently destroying the morals of America, and the FCC must do something. But even more troubling is just how PTC was able to get so many votes. You see, it didn't really like the way votes were counted in the past, so it pressured the FCC to change the way it counts to make it that much easier for PTC to stuff the ballot box in massive quantities to put extra pressure on the FCC to act. Adam Theirer explains the changes:

The FCC quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints in 2003 & 2004 that PTC requested:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC's redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 -- the time when the Super Bowl incident with Janet Jackson occurred -- the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter's FCC Quarterly Report. The footnote acknowledged that "[t]he reported counts may also include duplicate complaints or contacts..."

As I have made clear before, I have absolutely no problem with the PTC, or any other advocacy group exercising their First Amendment rights to petition their government and make their views known. What I do have a problem with -- a very big problem, in fact -- is when one group so disproportionately influences the process, especially by changing the way complaints are counted.

Even more troubling, Theirer notes, is that the FCC gave no public notice of these changes, hiding them in footnotes to reports after-the-fact (and wording the footnotes in confusing ways). And it's not like this was a change across the FCC -- it was specifically designed to further the political goals of the PTC:

More shockingly, as far as I can tell, the FCC only made these methodological changes for indecency complaints, not for any other category of complaints that the agency receives! Finally, and probably worst of all, these bogus numbers were then used by FCC officials and congressional lawmakers as supporting evidence for the supposed public outcry for more regulation of television and radio.

Regulatory capture in action. Hopefully, the new administration and the new FCC recognizes this and stops trying to have the government act as a censor for a small group of people offended that people don't know how to use the "change channel" or "power off" features on their televisions.

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Can A Phone Service Provider Block Calls To Numbers It Doesn't Like?

from the that-seems-like-an-fcc-violation dept

About four years ago, I signed up for AT&T CallVantage VoIP service and ditched my traditional POTS landline phone service. This was back when AT&T was actually betting on CallVantage and using it as a (many reviews claimed) better alternative to Vonage. Then, of course, SBC bought AT&T and wanted nothing whatsoever to do with CallVantage. It neglected the service, and quality got worse and worse until it announced a few months ago that it was shutting the service down completely. Fair enough. I contemplated going strictly with a combination of Skype and my cell phone for phone service, but I've found both to be somewhat unreliable at times -- and for unexplained reasons my new laptop has terrible microphone inputs -- so everyone I've called via Skype insists they can't hear me at all (and I've tried both USB and the mic inputs, and multiple microphones -- no luck).

So, after hearing about some friends who were using it and doing some online research, I decided to try "MagicJack." You may have seen their late night commercials that are hard to avoid (even if you use a DVR). It's basically a much cheaper VoIP option that's not that unlike Vonage/CallVantage, except that instead of getting a VoIP router to hook up to your broadband modem directly, it's just a USB dongle that connects directly to your computer. I read some reviews online, and they all basically said the same thing: when it works, it works great, but don't expect any customer support if things go wrong. And, oh yes, hold your nose at the infomercial sales process and the constant upsell attempts. Still, I figured it was worth a shot and ordered a free trial (you have 30 days). Of course, to get through the process, you have to decline something like 30 upsell attempts (my favorite: $4 to have them ship it faster -- I declined and the thing still showed up in two days).

I've been using it for about a week, and it's not too bad. There are some annoyances, but the call quality works fine. I think there's a slight delay, which gives calls that old long distance pause between people speaking that used to be common, but I can live with that. The actual call quality seems better than my old CallVantage.

But today, MagicJack appears to be breaking the law. Every Friday we have a staff call at Floor64. Since not everyone here works locally or in the office every day, we have a conference call using every startup's favorite: FreeConference.com. So I called in this morning, and MagicJack refused. Instead, it gave me a recording telling me that I needed to use MagicJack's own free conferencing solution. That might be fine for setting up conference calls, but this was a call that was already going on, and which people were waiting for me to dial into. And there was no way to get around it. MagicJack simply refuses to let you call FreeConference.com.

Now, it's not hard to figure out why. This issue cropped up two years ago, when a bunch of small telcos started blocking calls to FreeConference.com, because FreeConference is actually a big regulatory arbitrage scam. MagicJack itself is a CLEC that most likely benefits from some kind of regulatory arbitrage, so it's just another small telco blocking FreeConference to push its own services. But, just because telcos don't like competition, it doesn't mean it's legal for them to block others' services. After widespread complaints in 2007, most telcos backed down and stopped blocking calls to FreeConference, and the FCC started looking into the matter -- though I don't believe it ever came out with a ruling on the matter. I'm pretty sure there are still a smattering of lawsuits out there about the whole thing.

But, considering how many conference call invites I get these days that use FreeConference, it's quite a pain to find out that my own phone line can't dial into it. Other MagicJack users have been discovering the same thing, and MagicJack's customer service response has been hopelessly inept. They just keep repeating that you need to use their own free conferencing service, and if you finally find someone who understands that you're trying to call into someone else's conference they just say sorry, you can't do that.

In the past, of course, the FCC has indicated that it's a violation of federal rules to disallow phone calls to get through just because you don't like the numbers being dialed, and it seems that when you promise people free unlimited local and long distance phone calls throughout the US, then you need to live up to that promise. I'm not sure if I'm going to keep the MagicJack after this trial period, but this is a huge strike against it. Who knows what other numbers they might not let me call next week?

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Will Comcast's Own Words Kill Its Lawsuit Against The FCC?

from the seems-pretty-damning dept

Last year, when the FCC was busy slapping Comcast's wrist for its traffic shaping policies, Comcast pointed out that it wasn't clear the FCC had the authority to do so. I tend to agree, actually. It's not at all clear that the FCC really has a mandate to tell private network operators what they can do with their network -- though, if that argument gets anywhere, it seems likely that a net neutrality-friendly Congress will quickly adjust and add it to the FCC's mandate. However, what was odd was that Comcast waited over a year before finally going to court over this issue. To be honest, I can't see what Comcast "wins" here, even if it wins the case. Congress would likely change the FCC's mandate. Separately, the FTC actually might have a stronger case here, as the real problem wasn't necessarily the traffic shaping, but Comcast's refusal to tell users about it, effectively providing false advertising to customers. That's an FTC issue.

But a much bigger problem for Comcast may be the fact that the company has had no problem actively promoting the FCC's supposed "mandate" over them when it suits them. In a separate lawsuit over the very same traffic shaping, Comcast tried to get out of the lawsuit by claiming it was an issue covered by the FCC:

This issue "i.e., the reasonableness of a broadband provider's network management practices" has, however, been firmly placed within the jurisdiction of the Federal Communications Commission ("FCC"), an administrative agency whose authority to regulate internet broadband access companies' services is well-established.

You have to imagine that this quote from Comcast will be prominently displayed by the FCC in response to Comcast's latest action.

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FCC Apparently Not Very Concerned About Consumer Views On Broadband

from the keep-quiet-and-take-what-we-give-you dept

We recently expressed our concerns with the state of the government's attempts to increase broadband in the US. Karl Bode, over at Broadband Reports has now hit quite a homerun with his analysis of 5 signs of why the broadband plan is in trouble. The whole thing is worth reading, but I wanted to highlight number 5 on the list, because it's a big problem:

The FCC continues to hold "workshops" to discuss the direction and scope of the national broadband plan. They're also recording presentations by all of the FCC's "constituents," and offering consumers instantaneous access to all of the documents being presented at the workshop at the Broadband.gov website. All of this is absolutely great. What's not so great?

There are 51 panelists attending the latest 8 workshops. Out of those 51, there are just five people not directly associated with a company: Dave Burstein, Craig Moffett, George Ford, Victor Frost and Henning Schulzrinne. Moffett is a stock jock who's positions (such as upgrades are unnecessary and consumers should be paying more money) are clearly not going to serve anyone but investors. Ford works at the Phoenix Center, an AT&T-funded "think tank," who's job is to parrot AT&T policy positions.

Of the remaining three, only Burstein, a long-time telecom beat reporter, will likely ask any hard questions -- and then again his job is to get scoops, not to represent the public interest. Zero of the originally scheduled attendees acted as public interest witnesses. After complaints by consumer groups, Dr. Mark Cooper from the Consumer Federation Of America was added at the last second, but the fact that this was an afterthought raises questions about how "transparent and inclusive" this process really is.

This definitely seems like politics as usual. And it's a problem, not just for the FCC, but for the very businesses involved in these discussions. Ignoring consumer will these days is increasingly a suicide pact. The businesses leading this discussion would be well-served to look at what's happening in other industries (music, newspapers) where business execs have been trying to ignore consumers' rights and interests, in the belief that they have some sort of monopoly control over their market. Those things can disappear quickly, and when stripped of such artificial protections, it's amazing how fast the consumers you mistreated will move elsewhere.

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Why Is The FCC Even Giving The Time Of Day To RIAA's Bogus Radio Witchhunt?

from the waste-of-resources dept

Earlier this year, MusicFirst, a lobbying group that is run by the RIAA and pushing for a special tax on radio stations for daring to promote songs, came out with its latest in a long list of bizarre claims, demanding that the FCC investigate the fact that radio stations were supposedly boycotting musicians who supported the Performance Royalty tax. There were numerous problems with this claim. First, we thought it was rather hypocritical of MusicFirst to demand that radio stations play these artists, when it was the very same MusicFirst that was also claiming that radio was "a kind of piracy" for playing the music of these very same artists without paying a performance tax.

So, apparently if a radio station does play these artists, it's piracy. If it doesn't play these artists, it requires an FCC investigation.

Beyond that, MusicFirst failed to note that many of the artists topping the charts (including the Black Eyed Peas, who topped the charts at the time) were some of the most outspoken artists in favor of this tax. If there was some big conspiracy to not play these artists on the radio, someone forgot to tell... well... pretty much every radio station around.

That highlighted the third problem: MusicFirst didn't happen to point to any radio station that actually did this. The only one that could be dug up was a small high school radio station that had publicly boycotted artists supporting such a tax (which would have shut down the radio station), but only did so for one month and that month happened two years ago, and was a clearly supported expression of free speech.

And that brings up the final point. The recording industry has no right to demand that radio stations play certain artists. A radio station is free to play whatever artists they wish and run whatever commercial they wish. This is a pure free speech issue, and it's quite troubling that the recording industry is targeting radio stations when they have no right over this.

Based on all of this, you would hope that the FCC would simply laugh off the petition... but tragically, it's opened up a consultation on the matter and is asking for public input (found via Michael Scott). The article linked here goes through all of the First Amendment questions raised by this, and notes (thankfully) that the FCC seems to recognize those issues as well. But, if that's the case, why even bother holding this investigation in the first place?

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Apple's Google Voice Rejection Wakes Up A Dormant FCC; Investigation Begins

from the whoops dept

We've had a bunch of stories about Apple's rather arbitrary nature in rejecting iPhone apps it doesn't like -- including ones where it claims that they're not allowed because they compete with Apple. However, Apple's recent decision to reject Google's Voice application didn't just attract general public interest in Apple's policies, it appears to have awoken the latest crop of FCC bosses. Yes, the FCC has requested more info from Apple, AT&T and Google concerning Apple's rejection of the Google app. I wonder how the random Apple drone who made that decision is feeling right now?

Either way, this isn't good for anyone. The FCC's reasoning is that it:

"has a mission to foster a competitive wireless marketplace, protect and empower consumers, and promote innovation and investment."

That's actually a bit of a stretch on the FCC's actual mandate. And as ridiculous as I think Apple's actions are here, having the FCC get involved doesn't seem good for anyone either. The FCC shouldn't be involved in deciding what applications get put on phones. Apple's decision has angered a bunch of people, with some swearing off the iPhone because of it. In those cases, those people have other options and other phones to go to. The situation doesn't require the FCC to get involved. It should just require Apple coming to its senses and getting rid of its silly policy of outright rejections of apps it doesn't like.

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FCC Considers Propping Up Old School Journalism, As Copps Blames The Internet And Bloggers

from the say-what-now? dept

Citizen Media Law alerts us to a rather troubling "state of the media journalism" report issued by FCC commissioner Michael Copps. While the report doesn't really mean anything right now, it's seen as an indicator of where the FCC may go in its rule-making process. And if that's the case, it's quite troubling, though the old school newspaper folks screaming for protection may find it comforting. Basically, it focuses on "the decline of traditional print and broadcast outlets" and seems to blame the combination of "the internet and bloggers" with the deregulation of media ownership.

This makes almost no sense, and is, in fact, contradictory. The rise of "the internet and bloggers" has massively increased the diversity of people involved in reporting and distributing the news. The barriers of entry to being a journalist have been lowered to almost nothing at all, and people have flooded the market. Copps views that as a problem, but apparently doesn't note the total contradiction in then immediately lamenting the decrease in diversity of journalists in traditional media jobs:

"We're not only losing journalists, we may be losing journalism," he said. "Some blame the Internet and bloggers, and that's certainly a part of the story. All that consolidation and mindless deregulation, rather than reviving the news business, condemned us to less real news, less serious political coverage, less diversity of opinion, less minority and female ownership, less investigative journalism and fewer jobs for journalists."

What's really troubling is that he seems to think this is a problem that the FCC needs to fix. This certainly seems to go well beyond the FCC's mandate, and it takes an impressive amount of conceptual blindness not to see that the solution is exactly what he described was a part of the problem.

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Supreme Court Says FCC Can Fine Fleeting Expletives... For Now

from the next-up,-first-amendment-question dept

The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for "fleeting expletives" -- generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such "fleeting" uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it's within the FCC's power to make the determination of what policy it follows in regulating broadcast content.

However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn't been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That's the real question -- so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that's about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.

In the meantime, I'm still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault? Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all.

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NAB Cries To The Court About White Spaces Spectrum Plans

from the same-old-story dept

One of the better decisions to come out of the FCC during Kevin Martin's reign was the decision to free up the "white spaces" spectrum that lies in between TV broadcasts for other uses. The white spaces are unused spectrum that sit in between TV broadcasters' signals. They were important in analog broadcasts to keep stations' signals from interfering with each other, but they are less crucial in digital broadcasts (like the ones the US will eventually switch to). White spaces proponents say that they can effectively be reused by unlicensed devices that can seek out empty spectrum and use it to communicate, without interfering with licensed broadcasts, and the FCC concurred -- and, of course, made that a key part of its approval of the technologies. But as ever, the National Association of Broadcasters disagrees, and has sued to block usage of the white spaces, arguing it will interfere with their members' broadcasts.

We might be more sympathetic to the NAB's claim if it didn't have such a long and glorious history of trying to stifle anything that competes with incumbent broadcasters, and have such an annoying way of doing it. The FCC has put significant stipulations in place to ensure that white space devices don't cause interference, and despite the NAB's contention, the prototypes that failed in the testing process didn't do so. The FCC got it right by approving use of the white spaces with the restrictions and rules it put in place to tame interference; the NAB has once again got it wrong by trying to stifle innovation, and perhaps competition.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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FCC Says Not So Fast To TV Stations' Itchy Switch Fingers

from the not-completely-surprising dept

The digital TV transition mess rolls on. After lots of TV stations said they planned to move ahead with the shutdown of their analog broadcasts, as the recently passed delay allows them to do, the FCC is now telling more than a quarter of them they can't do so without first meeting a number of regulations. The FCC contends (PDF alert, thanks to Fat Tony for sending it in) that 123 stations' plans to switch their analog signals off soon pose "a significant risk of substantial public harm," not because people who haven't figured out the switch was coming will miss Judge Judy and Wheel of Fortune, but because they need their TVs for access to "local news and public affairs."

The regulations say that one station in the broadcasters' metro areas must maintain analog service until at least the middle of April, but also that the stations must increase their "educational" programming about the switchover, and also provide both "local or toll-free telephone assistance, including engineering support" and "provide a location and staff for a consumer 'walk-in' center to assist consumers with applying for coupons and obtaining converter boxes, to demonstrate how to install converter boxes, to provide maps and lists of communities that maybe affected by coverage issues, and to serve as a redistribution point for consumers who are willing to donate coupons, converter boxes, televisions and for those in need of these items."

If this didn't involve the government, it would almost be remarkable. The government botched the converter coupon program, has caused more confusion with the delay, and now wants TV stations to set up call centers and walk-in locations to deal with it. What's even more galling is that stations will be forced to toss resources at an issue that effects a small sliver of the population: take the small subset of Americans that watch TV, but don't have cable or satellite, then the subset of those that haven't yet gotten with the program. From those few people that are left standing, will they be any more ready in June than they would be on the 17th, when the switchover was supposed to happen? And why should broadcasters have to devote so many resources to them, particularly when it's the bungled coupon program that's largely to blame?

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Cox Gets Aggressive With Traffic Shaping

from the taunting-the-fcc dept

In a move that's basically baiting the FCC and Congress to see if they will act, Cox has announced that it's going to experiment with rather aggressive traffic shaping, granting priority to bits that it feels have a great priority. Why Cox gets to describe what gets a priority and what doesn't seems pretty questionable. Cox is also the company that implemented a three strikes policy on file sharing without telling anyone.

To be honest, this seems like a really tone deaf move by Cox -- and I'd imagine that plenty of telcos and cable companies are pissed off about Cox calling extra attention to the topic right now. There's been plenty of talk of new net neutrality regulations in Congress, and with Cox putting the issue so squarely on the table, it's as if they're begging for such regulations (or at least to be slapped down by the FCC). You would think they would at least wait until it wasn't an issue getting so much attention before drawing extra scrutiny and daring regulators to act.

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FCC Again Wants Details From Comcast On Its Traffic-Shaping Efforts

from the fool-me-once... dept

Comcast has already been slapped down -- well, slapped on the wrist, anyway -- by the FCC for violating Commission rules with its traffic-shaping efforts, and it could be on its way for a second rebuke. The FCC has asked Comcast for some more details on its newest "congestion management" system, which throttles heavy users' speeds for periods of time. As part of the penalty for its previous infraction, Comcast had to file details of the new system with the FCC, and the commission know wants to know if Comcast treats traffic from its own VoIP system differently than traffic from competing providers' VoIP services. The company apparently advertises the fact that its VoIP service doesn't get affected by heavy network traffic and slowdowns, giving the impression that it degrades other VoIP traffic in this new system, while leaving traffic from its service alone. This will be an interesting test of the new FCC administration, to see how it handles these sorts of complaints compared to its predecessor. It could also set an important precedent, because it sounds like Comcast handles its own VoIP traffic in a way similar to other cable companies, by setting aside a portion of bandwidth that's managed separately from a subscriber's internet traffic.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Kevin Martin Agrees To Drop Filters From Free Wireless Web

from the still-doesn't-have-much-support dept

M2Z's big plan to provide wireless internet to the entire country, if the FCC would just hand over free spectrum, never made all that much sense to us. Yes, the country could have a much better broadband infrastructure, and there are some interesting possibilities in the wireless space, but simply handing over a bunch of spectrum to a single startup company with a promise to provide free wireless to most of the country just seems like a boondoggle. There's little evidence that the plan would work or that it is even necessary. So, it seemed good that the plan went down in flames earlier this month -- though, most of the criticism was focused on the pointless requirement for anti-smut filters on the free connectivity.

However, Kevin Martin is making some news today by telling everyone who will listen that he's willing to drop the filters part if he can get the rest approved. This is a little surprising from Martin, as he's been a pretty big anti-smut crusader in his role at the FCC, but perhaps he's looking to leave a legacy beyond "AT&T lackey" now that he's about to leave the FCC. It still doesn't appear that he has the support to push this through, but that could change. Still, it would be good if someone (anyone?) could explain why it makes sense to just give a single company this spectrum without any clear reason why it should get the spectrum or proof that it can provide what it wants to provide in a reasonable manner? We've seen tons of promises about broadband wireless over the years from upstarts and very few have gone anywhere. Before just handing over valuable spectrum to one provider, why not see if (a) it's actually necessary and (b) if the company in question can actually provide what it claims it will provide.

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Digital TV Switchover Looking Like Massive Confusion-Generation Plan

from the rabbit-ears dept

The switchover from analog to digital broadcast TV signals, on tap for February, has been publicized for some time and the necessary converter boxes for older TVs have been made available relatively easily and cheaply. But concerns that the FCC wouldn't be able to manage the transition are looking well-founded. After an earlier test in Wilmington, N.C., that threw off warning signs about the nationwide reaction to the switch, further tests are being carried out across the country, in hopes that the tests will give people an idea if their DTV gear is working, or reinforce to the estimated 19 million Americans who need the converters that the deadline is coming. But the tests themselves are causing plenty of confusion: one writer notes that the test in her area generated both passing and failure messages on different channels, suggesting a problem with the stations, rather than her equipment. The failure messages came despite the TV getting its signal from DirecTV, when the FCC's been saying all along that people connected to cable or satellite don't need to do anything. Again, just an estimated 19 million Americans still get their TV directly from the over-the-air broadcast signals, so a fairly small chunk of the population should be affected by the switchover. But you get the feeling the FCC's feeble education campaign won't prevent confusion for many, many more.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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FCC Search Page Goes Five Full Years Without An Update

from the nice-work dept

Congrats to the FCC -- supposedly the most tech savvy of gov't agencies, for going a full five years without updating its website search. Jerry Brito, who has been watching the FCC's website for quite some time, and noting how awful it is for a tech-related agency, points out that the search page was last updated on December 11, 2003. Of course, that's not the biggest problem. As Brito notes, the docketing system has tremendous problems for an agency that needs to be more transparent: "there is no full-text search, there are no data feeds, and their robots.txt file is set to exclude search crawlers." Of course, when the agency is run by a guy famous for secrecy and purposely hiding information to get his way, perhaps it's no surprise that the search function has gone neglected.

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