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Judge Orders Permanent Injunction That Likely Deals Final Death Blow to Locast

The same New York District Court judge that forced a temporary shutdown of Locast, which streamed over the air broadcasts inside their communities of service, has dealt what is likely a final death blow against the non-profit group, issuing a permanent injunction that forbids the service from operating.

Judge Louis L. Stanton signed the two-page permanent injunction on Wednesday:

ORDERED that, Defendants, along with their officers, agents, servants, employees, attorneys and other persons who are in active concert or participation with Defendants or the officers, agents, servants, employees, or attorneys (if they receive actual notice pursuant to Rule 65 (d) (2) of the Federal Rules of Civil procedure) are permanently restrained and enjoined from operating Locast.

Two weeks earlier, Judge Stanton found Locast’s arguments that it was operating legally under an exemption to the Copyright Act to be uncompelling. Locast had argued it was operating a translator service on a not-for-profit basis, offering TV stations improved coverage within their broadcast service area at no charge to station owners or viewers. But Judge Stanton found Locast was nagging viewers with persistent requests for donations, interrupting the signal every 15 minutes for those who did not contribute at least $5 a month. In his mind, that made Locast a de facto subscription service, and an apparently profitable one, collecting at least $2 million more than it needed to operate the service in the past year.

Stanton ruled Locast’s profits disqualified the service from being considered exempt from the Copyright Act, and rejected Locast’s arguments that as a translator service, it did not need the permission of local stations to stream their signals.

Locast earlier predicted it planned to appeal. Unless it does and wins an appeal ruling in its favor, the three-year old service will remain permanently closed down.

U.S. Gone from World Ranking of Fastest Broadband Countries; Cozy Duopoly Results in Less Investment, Upgrades

Phillip Dampier September 13, 2021 Broadband Speed, Consumer News, Public Policy & Gov't 1 Comment

The United States is rapidly losing its place among the world’s fastest broadband countries, dropping out of the top-10 this year and falling behind Chile, Liechtenstein, and Romania.

While other countries and internet providers are investing billions to improve their standing in an increasingly competitive global broadband marketplace, a comfortable duopoly of phone and cable companies in the United States has successfully kept regulators at bay and allowed many of the largest internet service providers to divert investment away from upgrades and towards stock buybacks, dividend payouts, debt reduction, and ongoing merger and acquisition activities.

Internet speed testing firm Ookla has watched the United States slip in its fixed broadband speed standings over the last three years, dropping from 8th place (2019) to 9th place (2020), to being dropped from its top 10 list this year (it now scores 14th). Canada has never made the list.

This year, the countries with the fastest internet download speeds are: Monaco, Singapore, Hong Kong, Thailand, Romania, Switzerland, South Korea, Chile, Denmark and Liechtenstein. The only other countries to fall off the top-10 list in the last three years are Taiwan, Andorra, Macau, and France.

Globally, wireless internet speeds are benefitting from 4G and 5G upgrades on cell towers, with overall speed increasing nearly 60% in the last year. Fixed broadband speeds are up 32% year over year, primarily from an increase in the amount of fiber to the home connections providers are making as they move away from traditional copper wiring. Heavy investment in network upgrades can deliver remarkable boosts in internet speeds.

“South Korea and the United Arab Emirates stood out with mean mobile download speeds that were more than 240% faster than the global average and fixed broadband downloads that were more than 70% faster than the global average,” said Ookla’s Isla McKetta. “China’s mobile download speed was more than 180% faster than the global average and the country was more than 70% faster than the global average for fixed broadband. Switzerland’s mobile and fixed broadband download speeds were close to 100% faster than the global average.”

All of those countries have invested heavily in fiber connectivity for both their mobile and fixed wired broadband connections.

In contrast, U.S. cable companies have delayed upgrades to DOCSIS 4.0, capable of supporting 10 Gbps connections, and many telephone companies have dragged their feet on fiber upgrades, facing resistance from Wall Street as well as heavy debt burdens from prior mergers and acquisitions.

Most of the countries ranking the fastest have pushed providers to supply gigabit internet speed connections, but U.S. regulators and politicians have reduced pressure on large providers by proposing to subsidize millions of expanded internet connections with U.S. taxpayer funds while reducing required speed minimums to just 100/20 Mbps.

Locast Plans to Appeal Crippling Court Loss, But Service Shuttered for Now

Phillip Dampier September 2, 2021 Competition, Consumer News, Locast, Online Video 1 Comment

Locast, like Aereo and Ivi before it, has ceased streaming local, over the air television signals on a non-profit basis after a New York federal court judge ruled the service is violating U.S. copyright law by receiving more funding than it needs. But in developments this afternoon, there is word an appeal is planned.

Since January 2018, Locast has attempted to provide its service legally by operating as an independent “translator service,” extending streams of over-the-air signals to viewers within the acknowledged viewing range of the stations. Locast used geofencing technology to block more distant viewers, and sought support for its service with a suggested contribution of $5 a month. Non-paying viewers were nagged with donation request messages that interrupted each stream every 15 minutes.

Despite its limited service areas, Locast amassed over 3 million regular users in its 36 served TV markets over the last three years. That growth represented a threat to lucrative retransmission fee revenue collected by TV station and network owners, who promptly sued Locast in federal court in 2019. A part of that lawsuit was decided Tuesday in favor of the broadcasters.

Judge Louis L. Stanton rejected Locast’s claim it was exempt from Section 111 (a) (5) of the U.S. Copyright Act, which allowed it to stream over the air signals without getting permission from those stations in advance. That section of the Copyright Act was designed to provide a loophole for independent non-profit translator stations, which in some rural areas pick up difficult to receive TV stations and rebroadcast them locally on other channels. Some of these translator operations existed before the days of cable and satellite television, and well before the internet as we know it ever existed. But many of these services were provided through low-power transmitters operated inside large apartment complexes or hotels for the enjoyment of tenants or guests. The Copyright Act allowed groups to retransmit TV signals as long as they lacked “direct or indirect commercial advantage” and did not charge viewers in excess of the “actual and reasonable costs of maintaining and operating the secondary transmission service.”

What got Locast in trouble with the judge is the fact the service nagged viewers to make $5 donations if they wanted the nagging messages to end, and those contributions delivered healthy revenue to Locast of $4.51 million in 2020, while the costs to provide the service were just $2.43 million that same year.

“On those undisputed facts, in 2020 Locast made far more money from user charges than was necessary to defray its costs of maintaining and operating its service,” Judge Stanton wrote. Stanton also rejected arguments that excess revenue was used to expand Locast into new markets, claiming the law was quite clear limiting charges only to the “actual and reasonable costs” incurred providing the service, not for expanding it. Stanton ruled Locast could not charge viewers to raise funds to expand into new markets. Had Judge Stanton accepted Locast’s argument that it was pouring excess revenue into expanding its service, not to make a profit, the broadcaster’s legal case could have been seriously weakened and Locast would have continued operating pending the final disposition of the lawsuit.

Instead, perhaps bowing to the court’s judgment that Locast’s contribution system was hampering its case, last evening Locast notified users it was suspending requests for contributions aired every 15 minutes, and hoped supporters would continue contributions anyway. But early this morning, Locast went further and announced the immediate suspension of its video streaming service.

In an e-mail to supporters, Locast announced:

We are suspending operations, effective immediately.

As a non-profit, Locast was designed from the very beginning to operate in accordance with the strict letter of the law, but in response to the court’s recent rulings, with which we respectfully disagree, we are hereby suspending operations, effective immediately.

Thank you.

Judge Stanton

The Electronic Frontier Foundation (EFF), which has supported Locast with legal assistance in this case, criticized the judge’s ruling.

“We are disappointed that the court ruled against Locast on its copyright defense,” the EFF said in a statement. “The court interpreted the law in an artificially narrow way. Congress wrote copyright’s nonprofit retransmission exception to make sure that every American has access to their local broadcast stations, and expanding access is exactly what Locast does.”

The EFF said Judge Stanton’s ruling may not be the end of Locast, however.

“Locast has decided to suspend its operations. The case will continue, likely including an appeal, to resolve the remaining issues in the case. The problem remains: broadcasters keep using copyright law to control where and how people can access the local TV that they’re supposed to be getting for free,” a lawyer at the EFF said in a statement.

Theoretically, Locast could be restructured to spin off each of its markets into independent non-profit entities responsible for raising funds to maintain current operations and possibly be found “legal” under the U.S. Copyright Act provisions. New markets could be launched independently as well, starting with fundraisers to launch the service and then additional fundraising to maintain each operation.

Any legal appeal would likely be based on Stanton’s determination that “expansion” was disallowed under the Copyright Act, even though most non-profit entities raise funds to expand their operations all the time.

But for now, Locast will likely remain dark until the remaining legal issues are settled or determined.

AT&T Trying to Make Printed Telephone Directories Extinct

Phillip Dampier August 24, 2021 AT&T, Consumer News, Public Policy & Gov't No Comments

Endangered Species: The AT&T Printed White Pages Directory

Landline customers in Michigan might never receive another printed telephone directory after AT&T successfully lobbied the state legislature for an end to the requirement that anyone that wants a phone book can have one, for free.

AT&T let its fingers do the walking and looked up support for Michigan Senate Bill 372, introduced by the company’s good friend, Sen. Ken Horn (R-Frankenmuth). In addition to counting AT&T as his third largest contributor, Horn has been honored with the Excellence in Education Award (2017), sponsored by AT&T and the Michigan Association for Computer Users in Learning.

Horn’s bill was short and to the point, amending Michigan state law by stripping out the requirement that every landline provider in the state must provide a free printed telephone directory (if requested) to each customer. In its place:

The People of the State of Michigan enact:

Sec. 309. (1) A provider of basic local exchange service shall provide to each customer local directory assistance.
(2) A provider of basic local exchange service shall provide each customer at no additional charge the option of having access to 900 prefix services blocked through the customer’s exchange service.

This act is ordered to take immediate effect.

The bill was passed in both houses of the legislature with wide margins and Michigan Gov. Gretchen Whitmer signed it into law last month.

The new law requires phone companies to continue offering local “411” directory assistance service, but says nothing about how much a phone company can charge a customer looking for a telephone number (in Michigan, some now pay as much as $2.49 per directory assistance call.)

It also finally allows customers to block all calls to “900 numbers” that can carry hefty per minute charges. Of course, the worst scandals involving 900 call charges were back in the 1990s — some 20-30 years ago. Many phone companies lobbied against call blocking technology when 900 number revenue, split between the phone company and the 900 number, was far more lucrative than it is today. Does anyone even call “Time of Day and Temperature” or “Local Weather and Horoscope” numbers today?

AT&T has once again shown it is effective lobbying state legislatures, where it brings its corporate agenda to state lawmakers like Mr. Horn. About a decade ago the company fought to eliminate the automatic delivery of printed phone directories. It also fought for statewide video franchising to rip control of cable TV services away from local communities just as it was introducing U-verse, its own TV service. It fought to marginalize public, educational, and government access channels. It even continues to seek an end to the requirement it provide local wireline phone service in areas it considers unprofitable.

AT&T was not alone in support of the measure to eliminate the century-old printed phone book. Frontier Communications heartily supported AT&T in its efforts.

Today’s printed directory has been hobbled by the ongoing move towards wireless. As consumers cut their landlines, listings disappear from phone directories because wireless numbers are rarely published. Competing digital phone companies like Charter Spectrum offer to sell their customer number listings for telephone directories, but companies like Frontier refuse to pay, resulting in Frontier’s phone books slimming down to the point of irrelevance. In the Rochester, N.Y. 585 area code, where Frontier is by far the largest incumbent local landline provider, its printed White Pages for 2021 includes just 111 pages of business and residential listings in an area with more than a million people.

With reciprocal listings no longer freely shared, the obsolescence of the telephone directory — electronic or printed — is virtually assured. That will leave many customers with just one option: calling directory assistance and paying a fee for each number successfully obtained.

The Roku/Spectrum War is Over: Spectrum TV Returns to Roku App Store After 9-Month Blackout

Phillip Dampier August 17, 2021 Charter Spectrum, Consumer News, Online Video No Comments

A dispute between Charter Communications and Roku over compensating the set-top box maker for distributing the Spectrum TV app in the Roku app store is over after a nine-month impasse that kept new Roku users from accessing the cable company’s streaming TV package.

“Charter Communications and Roku have reached a mutually beneficial agreement to renew distribution of the Spectrum TV App on the Roku platform,” a joint statement announced. “As a result of the renewal, the Spectrum TV App is now available for download from the Roku channel store. We are pleased to renew our partnership and offer this great streaming experience to our shared customers.”

The dispute began when Charter turned down Roku’s demands for an undisclosed form of compensation in return for distributing the Spectrum TV app. Roku removed the app from its app store, but allowed existing versions already downloaded to continue working. The dispute annoyed Spectrum TV customers that found they could not install the streaming TV app on new Roku devices. Roku has at least 54 million active users in the United States. Charter’s solution to cord-cutting is heavily reliant on streaming a budget-priced TV package over independent set-top devices like Roku.

The two companies did not discuss specifics of their final settlement agreement. The Spectrum TV app should be back on Roku’s channel app store today.

 

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