After weeks of delays, Time Warner Cable says it will finally open access to ESPN’s multi-channel streaming service Monday, Oct. 25th.  The service will be available to Time Warner Cable subscribers, and is free of charge.

ESPN’s streaming service was included in a deal signed in early September between the cable company and Disney-ABC, which owns the sports network.

Time Warner Cable has been working with ESPN’s website technical staff to build and test the online verification system that is the foundation of Time Warner Cable’s implementation of TV Everywhere.  The cable company plans to offer a library of on-demand video and live streams of many cable channels free of charge, but only to authenticated, current customers.

It is all part of an effort by the cable industry to stop cable customers from canceling their cable-TV subscriptions.  An increasing amount of online content produced by cable networks is expected to eventually be placed behind the TV Everywhere system.  Existing cable subscribers will get access to streamed live channels and on demand programming for free, but non-subscribers will be locked out.  Cable networks can decide how much of their programming will be a part of the project, but cable industry insiders predict there will be increasing pressure on them to keep most of their shows off the open Internet.

While the channels will be free-to-stream for subscribers now, several cable networks are exploring whether to charge cable companies extra programming fees for online viewing rights.  If that becomes popular, online viewing options may eventually carry monthly fees of their own.

ESPN says most of its online streaming will contain no advertising until the network builds enough viewers to justify selling ads targeting online audiences.

Verizon Inc. reached a similar agreement with Disney in October for its FiOS TV service. The originally planned launch date for Verizon customers was Jan. 18th, but if authentication tests with Time Warner Cable are successful, FiOS customers may get access much sooner.

The Free UTOPIA website reports that a provider-backed front group is once again trying to pack meetings with their members to oppose UTOPIA – Utah’s municipal broadband network.

Several UTOPIA member cities are gearing up to start taking votes on the new Utah Infrastructure Agency designed to help fund new construction of the network. The Utah Taxpayers Association is trying to get people to show up at these meetings to protest the UIA and try and kill it. In their effort to do so, they continue to distort, twist, and outright lie in their efforts to rile people up.

First off, the UIA bonds are not an unconditional loan. They are funds that will be secured by payments from subscribers. If there aren’t enough subscribers to secure repayment, the money doesn’t get touched. You would think that such an arrangement would be acceptable to an organization that purports to represent taxpayers as it clearly shifts the burden from the taxpayers as a whole to the subscribers. Attempting to characterize the UIA as a big grab-bag is a big lie.

UTA claims UTOPIA is currently running a $20 million deficit, but Free UTOPIA points out part of that “deficit” may include the original seed money required to construct the network, which came in the form of bonds.  Like any start-up venture, UTOPIA’s initial infrastructure costs create operating losses until those costs are paid back.  A financial feasibility study prepared by Design Nine and released last week projects UTOPIA could report positive net income by 2018, with revenue increasing dramatically going forward.

UTA receives financial support from both Comcast and Qwest.

As fiber advocates have noted, start-up costs and the time it takes to pay them off are one reason why so few commercial providers want to invest in fiber.  Commercial providers often demand a return on investment within five years, while many municipal projects consider fiber a longer-term investment that can pay additional dividends for communities that may not always appear on a balance sheet.  Dividends like high technology start-ups, better paying jobs, better health care and education, and eventually additional revenue for the community that stays in the community.

The UTA has repeatedly claimed the UTOPIA project is veiled in secrecy, yet the project’s feasibility study is published on UTA’s own website.  What is secret is exactly how much money Comcast and Qwest pay UTA and its president Howard Stephenson.  Neither company will disclose exactly how much they have spent on UTA beyond contributions directed to Stephenson himself, documented here.

Provider-backed front groups like UTA routinely misinform their members about the benefits of municipal broadband, often to the point of demagoguery not supported by the facts.  Free UTOPIA reports broadband evangelism can make dramatic inroads among opponents of such public works projects:

The Utah “Taxpayers” Association thought it would get an upper hand with a BBQ in Orem just before the city council voted on a new construction bond. Unfortunately for them, the plan backfired when UTOPIA made a surprise appearance at the event with their “mobile command center” and started actually talking directly with the meeting attendees, many of whom had no opinion of UTOPIA yet and came to get more information. According to my sources, about half of the 250 or so attendees ended up registering their interest in UTOPIA services, a major coup for the network that upstaged their most vocal opponent.

Apparently what convinced a lot of the undecideds was the UTA’s refusal to disclose who pays their bills. That lack of transparency translated directly into looking like they have something to hide (hint: it’s Qwest and Comcast dollars) and left many looking at their fantastic claims skeptically. I’d like to say that there were some talking points to address, but an eyewitness account called it so much kool-aid drinking, a series of incomprehensible rants filled with insinuation, innuendo, insults, and no concrete addressable facts. In contrast, UTOPIA discussed their new business plan with individual residents and offered demonstrations of how well the service can work. Truth has power and it wasn’t on the UTA’s side.

Judging from comments left on UTOPIA’s website, the most controversy seems to be why it takes so long to extend service to more neighborhoods:

“Please finish laying fiber in Orem! We live virtually a quarter mile from the cutoff. We are stuck with Comcast’s horrible routing, and inconsistent speeds, Qwest’s DSL which doesn’t work due to damaged lines they are unwilling to repair, or wireless that never works. Please save us. I have been waiting for years.”

Utah fiber advocates are strongly encouraged by Free UTOPIA to repeat earlier successes and attend upcoming town meetings to present a more informed view about the benefits of fiber networks.

Centerville meets tonight (October 19) at 7PM, Orem is October 26 at 6PM, and Payson is October 27 at 6PM.

All meetings are at the city halls of each respective community.

With continued inaction at the Federal Communications Commission, some stakeholders in the Net Neutrality debate continue to file comments with the Commission trying to find a “third way” to bring about guarantees for online free speech and access while softening opposition to “network management” technology that allows providers to manipulate broadband traffic.

Among such filers is the Communications Workers of America, which seeks a “middle-ground approach” to protecting a free and open Internet.

The CWA has always maintained its feet in two camps — with consumers looking for improved broadband and with the communications companies that employee large numbers of the union’s members, who will build out those networks and provide service.

The union shares our annoyance with FCC Chairman Julius Genachowski for his complete inaction on broadband policy thus far.  In short, the Commission keeps stalling from taking direct action to reclassify broadband as a telecommunications service, restoring its ability to oversee broadband policy lost in a federal appeals court decision earlier this year.

The CWA used a piece by David Honig from the Minority Media and Telecommunications Council (MMTC) to echo its own position:

MMTC isn’t alone in being frustrated with the FCC’s disappointing attitude toward real action this past year. In a recent interview with the Wall Street Journal, FCC Chairman Julius Genachowski expressed impatience with the glacial pace of policymaking at his Commission. Although he mentioned that the FCC, under his direction, has implemented some notable reforms, he conceded that “there is still a lot to do.”

Unfortunately, regardless of how earnest the Chairman is in his desire to move forward with the business of policymaking, his actions speak much louder than his words. Indeed, his yearlong pursuit of network neutrality rules — first via a traditional rulemaking proceeding and, most recently, via an effort to reclassify broadband as a telecommunications service — has cast a long and almost suffocating pall over many of the items that the Chairman wishes to act upon. His inaction on civil rights issues — especially EEO enforcement — is just one example of how paralyzed the agency has become.

Recent news that Congress will not move forward to address the regulatory questions that currently vex the Commission (e.g., whether the FCC has authority to regulate broadband service providers) could embolden the Chairman to adopt the sweeping regulatory changes for broadband that he proposed earlier this year. Doing so in the absence of Congressional action would only invite immediate legal challenges that would mire the FCC in litigation, appeals, and remands for years to come.

To put it plainly, the FCC is stuck. Although it recently adopted some promising orders related to broadband (e.g., new rules for accessing new portions of wireless spectrum called “white spaces” and for enhancing access in schools and libraries), the Commission has failed to move forward with implementing core provisions of its monumental National Broadband Plan.

The union last week also submitted its latest round of comments requested by the Commission, this time to broaden its position on a proposed compromise.  We’ve delineated which of the proposals we believe are primarily pro-consumer (in green), pro-provider (red), and which fall straight down the middle (blue):

• First, wireline broadband Internet access providers (“broadband providers”) should not block lawful content, applications, or services, or prohibit the use of non-harmful devices on the Internet.
• Second, wireline and wireless broadband providers should be transparent regarding price, performance (including reporting actual speed) and network management practices.
• Third wireline broadband providers should not engage in unjust or unreasonable discrimination in transmitting lawful traffic.
• Fourth, broadband providers must be able to reasonably manage their networks through appropriate and tailored mechanisms, recognizing the technical and operational characteristics of the broadband Internet access platform.
• Fifth, the Commission should take a case-by-case adjudication approach to protect an open Internet rather than promulgating detailed, prescriptive rules.

The first and third principles are strongly pro-consumer, although as we’ve seen, providers have a tendency to want to define for themselves what is “harmful,” “unjust,” or “unreasonable” and impose it on their customers.  We’ve seen provider-backed front groups argue that the concept of Net Neutrality itself is all three of these things.  Any rules must be clearly defined by the Commission, not left to open interpretation by providers.

The second principle cuts right down the middle.  Consumers deserve an honest representation of broadband speeds marketed by providers (not the usual over-optimistic speeds promised in marketing materials), and transparency in price — especially with gotchas like term contracts, early cancellation penalties, overlimit fees, etc.  But providers can also go to town with abusive network management they’ll market as advantageous and fair, even when it is neither.  Just ask customers of Clear who recently found their “unlimited” wireless broadband service, marketed as having no speed throttles, reduced in speed to barely above dial-up when they used the service “too much.”  Clear says the speed throttles are good news and represent fairness.  Customers think otherwise, and disclosure has been lacking.

The fourth and fifth principles benefit providers enormously.  Network management itself is neither benevolent or malicious.  The people who set the parameters for that management are a different story.  A traffic-agnostic engineer might use such technology to improve the quality of services like streamed video and Voice Over IP by helping to keep the packets carrying such traffic running smoothly, without noticeably reducing speeds and quality of service for other users on that network.  There is nothing wrong with these kinds of practices. There is also nothing wrong with providing on-demand speed boosts on a pay-per-use basis, so long as the network is not oversubscribed.

But since providers are spending less to upgrade their networks, providers may seek to exploit these technologies in a more malicious way — too stall needed upgrades and save money by delivering a throttled broadband experience for some or all of their customers.  If customers can be effectively punished for using high bandwidth applications, they’ll reduce their usage of them as well.  That’s good for providers but not for customers who are paying increasing broadband bills for a declining level of service.

Some examples:

• Customers using high bandwidth peer-to-peer applications can have their speeds throttled, sometimes dramatically, when using those applications;
• Internet Overcharging schemes like usage caps, overlimit fees, and “fair access” policies can discourage consumers from using services like online video, file transfer services, and new multimedia-rich online gaming platforms like OnLive, which can consume considerable bandwidth;
• Preferred content can be “network managed” to arrive at the fastest possible speeds, at the cost of other traffic which consequently must be reduced in speed, meaning your non-preferred traffic travels on the slow lane;
• Providers can redefine levels of broadband service based on intended use, relegating existing packages to “web browsing and e-mail” while marketing new, extra-cost add-ons for services that take the speed controls off services like file transfer and online video, or changes usage limits.

The CWA runs the Speed Matters website, promoting broadband improvements.

It is remarkable the CWA seeks to allow today’s indecisive Commission to individually adjudicate specific disputes, instead of simply laying down some clear principles that would not leave a host of loopholes open for providers to exploit.

Big players like Comcast, AT&T, and Verizon have plenty of money at their disposal to attract and influence friends in high places.  If the Commission thought Big Telecom’s friends in Congress were breathing down its neck about telecom policy now, imagine the load it will be forced to carry when these companies seek to test the Commission’s resolve.

Opponents of Net Neutrality claim broadband reclassification will leave providers saddled with Ma Bell-era regulation.  But in truth, the FCC can make their rules plain and simple.  Here are a few of our own proposals:

1. Network management must be content-agnostic.  “Preferred partner” content must travel with the same priority as “non-preferred content;”
2. Providers can use network management to ensure best possible results for customers, but not at the expense of other users with speed throttles and other overcharging schemes;
3. Providers can market and develop new products that deliver enhanced speed services on-demand, but not if those products require a reduction in the level of service provided to other customers;
4. Customers should have the right to opt out of network management or at least participate in deciding what traffic they choose to prioritize;
5. Providers may not block or impede legal content of any kind;

In short, nobody objects to providers developing innovative new applications and services, but they must be willing to commit to necessary upgrades to broaden the pipeline on which they wish to deliver these services.  Otherwise, providers will simply make room for these enhanced revenue services at your expense, by forcing a reduction in your usage or reducing the speed and quality of service to make room for their premium offerings.

The industry itself illustrates this can be done using today’s technology.

The cable industry managed to accomplish benevolent network management with products like “Speed Boost” which delivers enhanced, short bursts of speed to broadband customers based on the current demand on the network.  Those speed enhancements depend entirely on network capacity and do not harm other users’ speeds.

Groups like the CWA need to remember that compromise only works if the terms and conditions are laid out as specifically as possible.  Otherwise, the player with the deepest pockets and closest relationships in Washington will be able to define the terms of the compromise as they see fit.

And that’s no compromise at all.

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/CWA Larry Cohen on the Open Internet Jobs and the Digital Divide 9-14-10.flv[/flv]

Communications Workers of America president Larry Cohen outlined the union’s position on Net Neutrality before the Congressional Black Caucus Institute on Sept. 14, 2010.  (2 minutes)

Verizon’s lobbyists are warning western New York politicians that unless they defeat a state measure to allow Verizon ratepayers to share in the proceeds of any future landline network sell-offs, Verizon may take a multi-billion dollar proposed data center elsewhere.

The Niagara county community of Somerset, population 2,900, is the planned home for the new high-tech infrastructure project.  Verizon officials propose to use Lake Ontario breezes and water to help cool the energy-intensive facility, to be located on 160 acres just yards from the shoreline.  In all, the Verizon campus will consist of three buildings — each 300,000 square feet in size.  If built as proposed, it would be among the largest of Verizon’s 250 data centers around the world.

But there’s a hitch.

While Verizon project manager Bruce Biesecker showed drawings and answered questions from an eager audience of local residents, Verizon lobbyists were telling reporters the entire project could end up in another state because of legislation under consideration in the state legislature.

Our regular reader Smith6612 dropped us a note wondering if we knew about the project.  Yes, we did.  But we also noticed company officials spending almost as much time complaining about interference from Albany threatening to derail the data center as they spent talking about the project itself.  Company officials also rarely named the exact bill in question or how it would directly threaten its data center investment.

Stop the Cap! covered the introduction of New York Assembly Bill 2208/Senate Bill 7263 earlier this year.  Introduced by Assemblyman Richard Brodsky (D-Westchester) and Senator Brian X. Foley (D-Blue Point), the companion bills came in response to watching Verizon sell off large segments of its landline network in a dozen states to Frontier Communications.  Both legislators were concerned the deal forced subscribers to deal with a new phone company that earned an “F” rating from the Better Business Bureau, all while personally enriching company executives and shareholders in a tax-free transaction.  They don’t want to see a repeat performance for rural New York residents.

Brodsky and Foley argue that such sales should be in the interests of ratepayers, especially rural customers who have few alternative choices.  Their legislation would compel Verizon to share 40 percent of the proceeds of any sale with their customers — the ones that pay the monthly bills that made Verizon’s network possible.  Alternatively, Verizon could spend an equal amount on verifiable infrastructure improvements and escape writing checks to ratepayers.  In either case, the legislation forces Verizon to spend less on bonus bonanzas for a handful of deal-making executives and more on the customers who have to live with the results.

Verizon lobbyists and company officials have routinely mischaracterized the legislation, claiming it singles out the state’s largest phone company with a “40 percent tax” that “exempts cable companies.”  They have also repeatedly hinted the legislation could force Verizon out of the state.

“That weighs as heavily in our decision as do things like power, taxes, environment,” Verizon spokesman John Bonomo said. “The business climate in the state is as important as some of those other factors.”

Verizon officials have not exactly been subtle about what they want to get the multi-billion dollar project ultimately built:  solid opposition to the two bills, which garnered support from consumer and ratepayer groups and the Communications Workers of America.  The legislation passed the state Assembly but ultimately died in the Senate several weeks ago.  Verizon is obsessed about keeping such bills from being reintroduced.

With billions at stake, the western New York delegation of politicians in Niagara and nearby Erie Counties have been especially supine to Verizon’s arguments.  In particular, some Republicans in the state legislature have made it their mission to see the bill permanently killed.

Unfortunately, the quality of the reporting done by local media about Verizon’s lobbying agenda has been especially underwhelming — frequently shallow, lazy, and downright inaccurate.  The assertions raised about the Brodsky/Foley legislation in area newspapers and television news reports makes one wonder if any of the reporters actually read the bills in question.

Take Bill Wolcott’s piece in the Lockport Union-Sun & Journal.

Wolcott never strays far from Verizon’s talking points, describing the bills as “[containing] conditions for givebacks of 40 percent for telephone providers, but does not do the same with cable TV corporations.”

Wolcott does not bother to accurately depict “givebacks” in terms of what they actually are — refunds to Verizon customers.

Verizon’s red herring complaint of unfair treatment is also repeated by the reporter, who apparently does not realize there are major differences between Time Warner Cable, which controls the overwhelming majority of cable subscribers in western and central New York and Verizon’s telephone operations:

1. Time Warner Cable has no plans to sell off its network to the highest bidder, abandoning rural and suburban areas served today.  Verizon did exactly that in most of the dozen states it left on July 1st;
2. Verizon’s landline network provides universal service to New York telephone customers, for which it receives a substantial subsidy from the Universal Service Fund;
3. Time Warner Cable is not held to universal service standards, something Verizon rarely complains about these days now that the phone company is in the same business as Time Warner through its selectively deployed FiOS network (which incidentally is not available in the Niagara county area where the data center is proposed.)
4. Verizon’s prior landline selloffs have almost always resulted in bankruptcies for the buyers, leaving phone customers uncertain about the level of service they will ultimately receive.

The proposed site for Verizon's data center in Somerset. Lake Ontario is visible in the distance. (Courtesy: WIVB-TV Buffalo)

The Buffalo News reporter did little better, misrepresenting a fundamental part of the bill (underlining ours):

Under the weight of a multibillion- dollar deficit, the State Assembly in the spring passed a bill that would require telephone companies to return 40 percent of their proceeds to the state if they reached a joint venture with another company or sold off some of their properties in New York.

Reporter Teresa Sharp managed to bungle an important fact.  The state of New York would not receive the proceeds — Verizon ratepayers would.

Most television coverage didn’t bother to challenge the inaccurate assertions made by Republican lawmakers or Verizon representatives either.  Talking points were read and reporters simply nodded their heads.

As a public service to the Buffalo-area media, Stop the Cap! presents a primer on the actual language of the legislation Verizon wants to see dead (underlining ours):

         (1) PROVIDES SHORT-TERM AND LONG-TERM ECONOMIC BENEFITS TO RATEPAYERS.
   49    (2)  EQUITABLY ALLOCATES, WHERE THE COMMISSION HAS RATEMAKING AUTHORI-
   50  TY, THE TOTAL SHORT-TERM AND LONG-TERM FORECASTED ECONOMIC BENEFITS,  AS
   51  DETERMINED  BY  THE  COMMISSION, OF THE PROPOSED MERGER, ACQUISITION, OR
   52  CONTROL BETWEEN SHAREHOLDERS AND RATEPAYERS.  RATEPAYERS  SHALL  RECEIVE
   53  NOT  LESS  THAN  FORTY  PERCENT OF SUCH BENEFITS; PROVIDED, HOWEVER THAT
   54  REINVESTMENT OF SUCH BENEFITS  IN  A  TELEPHONE  CORPORATION'S  IN-STATE
   55  INFRASTRUCTURE MAY BE DEEMED TO SATISFY SUCH REQUIREMENT.

What this means is that Verizon has two choices if it chooses to throw its rural New York landline customers overboard — before paying enormous cash bonuses to executives and deliver subscribers into the waiting hands of a potentially unstable buyer, up to 40 percent of the proceeds must be reinvested in improving the existing telephone network.  Barring that, the same percentage of proceeds must be returned to ratepayers in the form of refund checks or service credits.

Verizon may have a major problem giving customers their fair share, but they have no problem asking New York taxpayers for generous tax breaks.

Verizon has applied for a 20-year payment-in-lieu-of-taxes, or PILOT agreement, which would deliver substantial property tax savings, not a small matter in a region with the highest property taxes in the country.  It also wants a sales tax exemption on building materials and the equipment to be installed at the data center.  The sales tax break alone is expected to cost state taxpayers up to $330 million in lost tax revenue.

Because Verizon is upset about the legislation, local politicians have done one better expressing outrage that Albany politicians could drive Verizon to pack up its data center and head out of state.

Corwin

Somerset Supervisor Richard Meyers was quoted in Wolcott’s piece suggesting New York residents don’t want any part of a bill that returns money to phone customers if Verizon sells them out.

“I’ll tell you who’s calling the shots in the Senate, and that’s the residents of New York state,” Meyers said. “The average citizen in New York state does not like this bill, and I don’t either. I think it stinks. It’s not a necessary bill, and there’s a lot of time and energy wasted.”

Assemblywoman Jane Corwin, (R-Clarence) characterized the legislation as a union plot, quoted bashing the bills in the Lockport newspaper:

“It’s a very bad bill, being pushed by the Communication Workers of America, the union that represents the workforce at Verizon,” she said. “Of all the people that stand to get hurt, it’s the employees that would get hurt the most, and the investors as well. The whole bill doesn’t make sense.”

“This bill chills any business incentive to invest in New York state … because they stand to lose 40 percent of that investment down the line. The playing field will be made uneven, if we start taking 40 percent of that potential away from Verizon and not from the cable companies and Internet companies.”

She  contends that the CWA was putting pressure on the Assembly. “The shame of it all is that it’s been driven by a special interest group. They are the ones pushing this bill.”

What is especially chilling is that Corwin never bothers to mention concern for the one group affected above all others: Verizon landline customers.  To her, they are incidental.  The CWA?  A “special interest group.”  Verizon?  A source of campaign contributions for her.  This year, she has already picked up some nice change from the folks at Big Red:

Source: New York State Board of Elections

That’s not bad for a New York Assemblywoman serving a rural district whose total campaign take since her first election is just under $125,000.

State senator George Maziarz (R-Newfane) is just as bad.

“It’s a terrible piece of legislation, and I’m doing all I can to make sure it doesn’t pass,” said Maziarz, who heads the Senate’s Energy and Telecommunications Committee.

Verizon also thanks Maziarz for his efforts, for which he has been well-rewarded in the last two election cycles:

Source: New York State Board of Elections

Maziarz

The prospect of new high technology jobs and investment are more than promising to an upstate economy that has suffered difficult economic times for years.  But Verizon’s threats to skip Somerset for its new data center because of “anti-business” hostility ignores the company’s own willingness to abandon its rural customers.  In states where Verizon has sold off landline service — ending the prospects for real improvements in broadband and other modern services — communities like Somerset were the first to go, seen as too small and isolated for Verizon’s urban-based business plans.

The legislation Verizon fears protects New York residents, including those in Niagara County, from deals that enrich a handful of executives and Wall Street bankers while delivering sub-standard service to customers left behind.  Verizon’s record of sell-offs has been a disaster for customers, forced to endure long-term service disruptions, inaccurate bills with unfair charges, low quality broadband, and high prices.

Ironically, Verizon’s fear is totally misplaced, assuming they intend to remain committed to serving customers across the state — from cities as large as New York -and- towns as small as Somerset.  Even using Verizon’s own language, they can avoid the 40% “tax” if they simply keep providing service to their customers.

That’s just one of many facts the media in western New York needs to do a much better job of communicating to their readers and viewers.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Verizon Data Center 10-18-10.flv[/flv]

WIVB and WKBW-TV in Buffalo delivered several one-sided reports about the proposed Verizon Data Center while allow inaccurate information about Assemblyman Brodsky’s proposed bill to go unchallenged.  (8 minutes)

Another fight over retransmission consent leaves New York-area Cablevision subscribers in the middle of a dispute they will ultimately pay for.

At 12:01am Saturday, an unintended economic stimulus package kicked in for New York area sports bars as News Corporation yanked Fox network affiliates in New York and Philadelphia from Cablevision subscribers in a dispute over programming fees.

WNYW-TV (Fox), WTXF-TV (Fox), WWOR-TV (MyNetwork TV), Nat Geo WILD, Fox Business Channel, and Fox Deportes were all replaced with a looped message from Cablevision attacking Fox for negotiating in bad faith and greedily demanding more money than the cable company pays for every other New York area broadcaster, combined.

The dispute sent sports fans scurrying for access to weekend sporting events blacked out on the cable system serving Brooklyn, Long Island, and parts of Connecticut and New Jersey.  Cablevision customers were denied yesterday’s New York Giants-Detroit Lions football game and Philadelphia Phillies-San Francisco Giants baseball playoff game.  For a brief period, Fox raised the ante by also blocking Cablevision broadband subscribers from accessing Fox programming on Hulu, until political pressure and complaints from consumer groups forced Fox to retreat.

At issue, as always, is money.  Broadcasters are increasingly insistent on being paid for the right to retransmit their programming over cable systems.  Without agreements, a broadcaster can insist that a cable system drop their station(s) from the lineup until a retransmission consent agreement can be reached.

For years, many smaller independent stations fought to get on cable systems — for free — especially in areas where poor reception made it difficult to watch.  Broadcasters increased local advertising rates thanks to the extended viewing area many cable systems provide.

But now that local ad revenue is not what it used to be, and with viewers going online for access to their favorite shows, agreements increasingly require cash payments for permission to carry stations.

For the nation’s largest television market — New York City, the amounts exchanged can be staggering — well over $100 million dollars each year.  With that kind of money at stake, disputes have become almost routine, and area viewers are sick of it.

“It’s all about the money,” complained resident Joe Figueroa. “They’re always greedy.”

Figeroa and fellow Bronx resident Shinequa Gaillard told WNBC-TV these disputes always leave customers in the middle.

Fox briefly yanked its shows on Hulu Sunday for Cablevision customers attempting to bypass the dispute

“I think neither one of the two are thinking about the customers and the viewers — neither one of them,” Gaillard said. “As consumers, what can we do? Nothing.”

Briefly over the weekend, viewers hoping to bypass the dispute by watching Fox programming on Hulu learned the network had decided to involve Cablevision’s broadband subscribers in the fight as well — blocking access to Fox-owned content.  Some of our readers, include PreventCAPS, noticed.

Stop the Cap! reader and Cablevision subscriber Jim in Garden City, N.Y., discovered the programming blockade when he tried to watch an episode of COPS on Hulu.

“Fox has gone hardball on us by blocking Hulu for anyone with a Cablevision IP address,” Jim writes. “This is how these bastards operate, cutting off programming even for those like me who don’t even have cable TV and should not be involved in this debate at all.”

Jim uses a rooftop antenna to access local stations, and does not subscribe to a Cablevision video package.  He’s convinced this is exactly why we need Net Neutrality enforced by law in the United States.

“Imagine if this was Comcast-NBC vs. Fox,” he warns. “Do you think Comcast wouldn’t think twice of pulling the plug on Fox’s website and video content if the two hated one-another?  They’d flip that switch off in a second.”

The implications did not go unnoticed by Free Press and other consumer groups.

“Consumers should have the right to watch online content, and this access should not be tied to a dispute over cable television carriage arrangements,” said S. Derek Turner, research director for Free Press. “This move is also an example of a major user of public spectrum abusing the public interest.”

The matter quickly also went political, triggering an angry response from Rep. Ed Markey (D-Mass.) urging the Federal Communications Commission to step in and “actively defend Internet freedom and consumer rights.”

A few hours after statements like that, Fox pulled back and restored access, but the point was made for those who recognize media companies have major involvement in online and over-the-air programming.

Israel

Rep. Steve Israel (D-N.Y.), whose district includes shut-out Cablevision subscribers, thinks these disputes have become way too common.

Cablevision subscribers have endured short-term lockouts from Food Network and HGTV, networks owned by ABC-Disney, and now this latest dispute with Fox.  Israel wants binding arbitration for these types of disputes, if only to shield customers from one side or the other yanking access:

“I spoke to officials today at the FCC and they confirmed they have offered to mediate arbitration and pledged to keep the heat on both parties to come to the table without disrupting service.  Haven questioned Chairman Genachowski about this issue in March, I know that he shares my concerns about the continued brinkmanship of these negations that threaten to leave customers in the dark.  I’m disappointed that both parties haven’t agreed to hold Giants fans harmless while negotiations continue.”

While Cablevision announced it was willing to enter arbitration to resolve the dispute, Fox officials refused, claiming it would reward bad behavior by the cable company.

Both players have their own websites defending their respective positions and trying to sign up viewers to help fight the battle.

News Corporation, which owns Fox, runs KeepFoxOn and is encouraging Cablevision subscribers to cancel subscriptions and switch to Verizon FiOS or satellite television.  It also accuses Cablevision of hypocrisy over their resistance to paying “fair fees” for Fox-owned programming.

Lew Leone, vice president and general manager of News Corporation’s WNYW and WWOR-TV says Cablevision wants special treatment:

Instead of negotiating like a responsible business, Cablevision decided to make this your problem in the hope that if they caused you, the viewer, enough inconvenience, then politicians would intervene.

That is what Cablevision’s call for “arbitration” is all about.   But ask yourself – do you think Cablevision would be ok with someone else stepping in to decide the price you pay them for cable and broadband service?

And the Cablevision family certainly doesn’t allow arbitrators to set the rates for their cable channels like MSG and AMC.  In fact, just a few weeks ago, MSG and MSG Plus went off the dial for millions of DISH Network subscribers – and MSG did not ask for arbitration.

Cablevision has called us greedy. It’s an interesting charge, given the fact that the price we’ve offered Cablevision for FOX5 and My9 is more than 70% lower than what the Cablevision family charges other cable operators for MSG and MSG Plus.

Frankly, it is hard to believe a company like Cablevision is accusing anyone else of greed.  Cablevision customers pay an average of $149 per month including up to $18 for broadcast stations – and that earned them an average profit of over $795 per subscriber last year.  Yet, they have only offered to pay less than a penny a day for FOX5 and My9.

Cablevision has stated that they intend to provide you with a rebate.  But if the rebate is equal to what they offered Fox for our stations, you can look forward to a credit of less than 30 cents on your next bill.

Cablevision officials fire back that they won’t be bullied.  The Cablevision website, along with a video airing on blacked out channels, accuses Fox of greedily demanding $150 million for stations, many of which customers can watch for free over-the-air:

• Cablevision currently pays 70 million dollars per year for News Corp’s programming (which includes channels such as FOX 5, My9, FOX Business Network, National Geographic Wild, and FOX Deportes), and now they are asking for more than 150 million dollars for the exact same programming – no new programming, just another 80 million dollars per year for News Corp.
• Cablevision has reached agreement with every other major broadcast station, including CBS, NBC, ABC and Univision. But News Corp is demanding more in fees for FOX 5 and My9 than Cablevision and our customers pay for all of the other broadcast stations combined!
• We think in these economic times that this is outrageous, especially since FOX 5 and My9 are available for free over the air, and they make many of their most popular shows available for free on the Internet.
• News Corp has pulled the plug on their most popular programming, holding viewers hostage until their unreasonable demands are met. NFL Football, the MLB playoffs and World Series, House and Glee are just a few of the programs that News Corp is depriving their viewers of in an attempt to bully us into accepting their unfair demands.
• Cablevision is willing to accept binding arbitration from an independent 3rd party to settle this dispute. We call on News Corp to accept binding arbitration, and to put FOX 5 and My9 back on the air for our customers until we can come to a fair agreement.

Both sides have publicized their views in the local media, including full page ads in New York tabloids.  One from Fox targeted Cablevision’s owners personally, accusing the Dolan family of getting top dollar for lesser-watched sports networks under the MSG umbrella while playing hardball over program fees for channels 5 and 9, heavily viewed in the New York area.

Right now, Cablevision pays about 25 cents per month for both broadcasters.  News Corporation reportedly wants a dollar per month.

Forbes entertainment columnist Lacey Rose warns these repeated battles may bring unintended consequences from viewers, especially for Fox:

The networks’ current strategy –block programming while trading barbs with the cable operator in question—may do more harm than good, however, as consumers are (further) incentivized to find new ways to occupy their time. (Much as they did during the 100-day writers’ strike, when new scripted programming was shelved for months.) Still more worrisome, the resulting fees that will be passed down to already cash-strapped subscribers in the form of higher cable bills could end up pushing them away forever.

In an era of 1,000-plus channels and infinite entertainment on the Internet, the broadcast networks are already in a precarious position with younger viewers, which advertisers pay a premium to reach. Blackouts or not, nearly 70% of cord cutters are under the age of 34, according to a BTIG study released last month — and that doesn’t include a growing subset of these younger, tech-savvy viewers who never even bother with a cable subscription, preferring entertainment outlets like Hulu and Netflix for their content.  Though the networks are loathe to admit it, viewership continues to decline as the median age of the audience at the big four rises. In fact, thus far this season the median age of a prime-time viewer is 50 years old, according to The Nielsen Company.

But at least for now, as negotiations continue in the third day of the programming blackout, there appears to be no end in sight.  Cablevision has even engaged in some programming blackouts of its own, denying access to today’s New York gubernatorial debate to Verizon FiOS, which prompted an angry response from the phone company.

“Verizon FiOS TV customers and millions of other viewers served by other providers across the state have essentially been blacked out of the debate, denying them their rights as citizens and voters, since Cablevision is the sole broadcaster of the event,” said Michelle Webb, general manager and chief programming officer of FiOS1, Verizon’s news channel for Long Island and northern New Jersey. “And while the broadcast will be available on certain websites and some radio, those may not be practical solutions for many people.”

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Fox Cablevision Dispute 10-18-10.flv[/flv]

Stop the Cap! brings you a comprehensive roundup of coverage from the New York area regarding the Cablevision-Fox dispute, with coverage from WNYW, WABC, and NY 1 television, Cablevision and Fox themselves, and WINS and WCBS Radio.  (14 minutes)