Back in the mid-1980s, I first got involved in the fight against the cable television industry’s consumer abuses.  Cable had gotten cocky, and began to use their monopoly position to extract ever-increasing amounts of money from consumers, providing lousy service and engaged in anti-competitive abuse all over the marketplace.  Back then, competition for the overwhelming majority of consumers came from just one place – giant 10-12 foot satellite dishes.  These were the days before Direct Broadcast Satellite providers like Echostar/DISH and DirecTV (and PrimeStar, the cable industry’s own satellite provider that claimed to ‘compete’ with cable) provided competition to cable.

In the mid and late 1980s, your choice was a giant TVRO (TV-Receive-Only) satellite dish in the backyard or you hooked up to cable.  A tiny handful of communities had wireless cable, a service that was supposed to compete with cable but was seriously limited in channel capacity (in many communities, wireless cable ended up providing access to ‘adult’ content that cable wouldn’t carry as their biggest selling point) and quickly faded from view by the mid 1990s.

The abusive practices were all over the place back then:

• Cozy arrangements between cable companies and local governments resulting in outright bans of satellite dishes for aesthetic reasons, using zoning laws either prohibiting their installation or requiring landscaping to hide them from view (to the neighbors and to the satellites they were trying to receive, making them useless), or requiring expensive permit fees;
• A rush to scramble/encode satellite signals and then require consumers to purchase, outright, a costly descrambler from General Instruments called the VideoCipher II for $399 (or have it incorporated within a satellite receiver that typically cost $800-1000 and was available only for purchase), only to be replaced a few years later by the VideoCipher II+ (which consumers were also forced to purchase).
• Cable companies, which had ownership interests in most cable networks (which was nearly a pre-condition for getting your network on cable systems), often had exclusive rights to sell that programming, and frequently provided it “only on cable” or to satellite customers who could not subscribe to cable.  Some networks refused to sell to competitors, including dish owners, at any price.
• Anti competitive pricing was by far the biggest problem.  Prices for programming packages encrypted on satellite were sold to consumer dish owners in small or large bundles at pricing comparable or above what cable subscribers paid, despite the fact all of the costs to provide, install, and service reception equipment were borne by consumers.  No cable TV company overhead, no infrastructure or staffing and support costs, yet satellite dish owners were expected to pay the same high costs that cable subscribers paid, and also purchase their own equipment.  That was quite an investment: a 12 foot dish, satellite reception equipment, decoder, and installation routinely ran well over a thousand dollars, depending on the equipment and installation complexity, and that was before programming costs were factored in.

Rural consumers really got the short end of the cable stick, not able to buy cable even if they wanted to, and forced to spend big money, upfront, just to get satellite TV.

That inspired the consumer groundswell of support for legislation to stop the abuses, which overrode a White House veto by President George H.W. Bush.  Among other things, the Cable Act of 1992 put a stop to exclusive programming contracts which denied competitor access to cable networks.

Without that legislation, there would be no DirecTV or DISH today.

Now the cable industry is back, high-fiving over their victory to have the 30% ownership cap dispensed with, and are now taking on the next provision of the 1992 Cable Act they don’t like — the ban on exclusive programming contracts.

That’s right, it’s Back to the Future as Comcast and Cablevision take their legal business to the same friendly DC Court of Appeals that savaged the 30% cap, now seeking an immediate repeal of the exclusivity ban as well.

Oral arguments start September 22nd.

Most amusing of all is the argument made by Comcast and Cablevision, who claim despite the time and attention they are spending on overturning the law, not to mention the legal expense, the practical effect of an end to exclusivity bans would be… absolutely nothing.

“Widespread withholding is now implausible,” said the attorneys in the filing. “[T]here are proportionally fewer services to withhold. The limited withholding that may still occur will not threaten competition: most vertically integrated services have closely similar substitutes, and, when competitive MVPDs [multichannel video programming distributors] have sunk massive investments, withholding can no longer cause market exit.”

That’s right.  Big cable companies throw money away on attorneys who will presumably fight this case and the inevitable appeals for the next few years for no practical change whatsoever in the current competitive landscape.  The believe people will accept that an industry that had to be forced by regulation to compete on a level playing field will continue to respect that playing field once they plow it up.

Just trust us.  We’re your cable company.  You love us.

So it could be “nothing” as they suggest, or it could be a defensive response to challenges of their business plans from telephone company TV and online video competition.  Would you subscribe to a competitor that didn’t offer the networks you wanted to see because they were “exclusively” available only from the cable company?

Be it usage caps, consumption billing, exclusive contracts, “price protection agreements” that hold customers in place for 12-24 months (or longer), the war to keep consumers from choosing when, where, and how they access content is becoming fully engaged.

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Satellite television in the mid-1980s was highlighted by Granada Television

The usually business-friendly editorial page of the Wall Street Journal published a surprising editorial this morning which threatens to cause a tear in the very fabric of space.  Why AT&T Killed Google Voice: Telecom Operators Are Yesterday’s Business — It’s Time for a National Data Policy That Encourages Innovation, strikes at the heart of the telecommunications industry’s business models, and dismisses them as increasingly outdated, anti-innovation and anti-consumer.

Welcome to our world.

Using the example of AT&T’s blocking Google Voice from iPhone users, which would allow them to bypass their AT&T plan to make long distance calls, author Andy Kessler, a former hedge fund manager, believes this was the moment America wakened to the realization that telecommunications companies and government policies block innovation and limit competition.

To that, I have to wonder, where has Kessler been the last decade?

Perhaps the Google Voice debacle impacted him personally, and that got his fur in a ruffle.  What AT&T did represents business as usual for those of us who have seen it all before.

Telecommunications companies have influenced most of the government policies that govern them, using high priced lobbyists, astroturfing friends, and bait and switch promises of magical service at dirt cheap prices, if only their legislative agenda becomes law.

Supporting them are many of the subscribers of the Wall Street Journal, investors and the investment media that tut-tuts new competitors or game-changing innovation that shakes up the marketplace, and launches price wars that threaten shareholder value. Legislation that hampers industry profits or enacts consumer protection is called “government interference” in most WSJ editorials, while deregulation that strips away oversight and ignores the abusive practices common in highly concentrated markets is advocated as the one-size-fits-all “free market solution.”

Apple has an exclusive deal with AT&T in the U.S., stirring up rumors that AT&T was the one behind Apple rejecting Google Voice. How could AT&T not object? AT&T clings to the old business of charging for voice calls in minutes. It takes not much more than 10 kilobits per second of data to handle voice. In a world of megabit per-second connections, that’s nothing—hence Google’s proposal to offer voice calls for no cost and heap on features galore.

What this episode really uncovers is that AT&T is dying. AT&T is dragging down the rest of us by overcharging us for voice calls and stifling innovation in a mobile data market critical to the U.S. economy.

I wonder what Kessler will think if AT&T’s market trials in Beaumont and Reno suggest they can limit his Internet access and then charge overlimit fees per gigabyte thereafter?  AT&T may have a lot more “dragging” capability than he realizes.

Andy Kessler

Is AT&T dying?  In the traditional wired phone line market, there is evidence they are headed into a slow decline as consumers dump overpriced and overtaxed phone lines for Voice Over IP or mobile phone service.  They certainly aren’t hurting in their mobile phone business.  They’ve become quite comfortable, thank you very much, splitting the majority of mobile telephone customers in the United States with Verizon Wireless.  The companies in real trouble are the smaller players fighting for the scraps thrown from the table — a declining Sprint, T-Mobile, Cricket, MetroPCS, among many others.  They are being told to merge with each other or die by Wall Street.

Is AT&T stifling innovation by being run badly?  Of course not.  They are leveraging their market power to limit potential competition or innovation that forces them into costly upgrades they’d prefer not to do.  With their expensive “public policy” initiatives (read that “K” Street lobbying), they’ve also got a lot of elected officials and government agencies on their side as well.  A Congress that doesn’t demand greater competition, strong antitrust oversight, and a ban on anti-consumer practices, coupled with a bunch of “don’t ask, don’t tell” oversight agencies that only respond to the most egregious abuses (until the media spotlight is turned off), represents the real problem here.

The trick in any communications and media business is to own a pipe between you and your customers so you can charge what you like. Cellphone companies don’t have wired pipes, but by owning spectrum they do have a pipe and pricing power.

True, except Kessler ignores the fact AT&T and Verizon do own wired and wireless pipes, from coast to coast.  Both companies are highly vertically integrated, often serving customers with everything from their basic telephone service to television, broadband, and mobile phone needs.  Customers are heavily marketed to pick up additional product lines from both companies — products not available from the smaller guys like Sprint, T-Mobile, and others.

Kessler also suggests it’s the bidding war for wireless spectrum that results in high prices for consumers.  Even if true, his free market friends would suggest that is the marketplace at work.  Of course, the real reason for high pricing in mobile service is the lack of competition coupled with the convenience of “stable pricing.”  Namely, the current carriers are quite comfortable not rocking the boat too much with one another, which explains why virtually all of them charge comparable prices for wireless data, text messages, and voice plans.  What they will fight for is handset exclusivity, because it never threatens price and service models.  In fact, it allows them to charge even higher premium pricing for highly-sought handsets and the mandatory service plans that sometimes accompany them.  The iPhone is a perfect example of that at work.

Kessler has four prescriptions to cure the American telecommunications ailment:

• End phone exclusivity. Any device should work on any network. Data flows freely.

• Transition away from “owning” airwaves. As we’ve seen with license-free bandwidth via Wi-Fi networking, we can share the airwaves without interfering with each other. Let new carriers emerge based on quality of service rather than spectrum owned. Cellphone coverage from huge cell towers will naturally migrate seamlessly into offices and even homes via Wi-Fi networking. No more dropped calls in the bathroom.

• End municipal exclusivity deals for cable companies. TV channels are like voice pipes, part of an era that is about to pass. A little competition for cable will help the transition to paying for shows instead of overpaying for little-watched networks. Competition brings de facto network neutrality and open access (if you don’t like one service blocking apps, use another), thus one less set of artificial rules to be gamed.

• Encourage faster and faster data connections to our homes and phones. It should more than double every two years. To homes, five megabits today should be 10 megabits in 2011, 25 megabits in 2013 and 100 megabits in 2017. These data-connection speeds are technically doable today, with obsolete voice and video policy holding it back.

An end to phone exclusivity will require government regulation, something unlikely to gain much support from his free market friends.  An even better idea is to stop the cozy relationship between carriers and phone manufacturers by allowing phones to be sold independently, without customers being pressured into two year contracts to enjoy a phone subsidy.  Any phone, sold anywhere, with compatible technology (GSM, CDMA, etc.) should work on any network without a company trying to browbeat customers into contracts, even when bringing along their own phone.  That customer should also be allowed to reprogram their phone to work with another compatible carrier at any time.

Kessler is naive about “owning” airwaves.  Since the government decided it could profit from auctioning them off to the highest bidder, they’ve become monetized and highly valuable.  They are no longer truly licensed in the public interest — they’ve become private property, to be vigilantly protected from encroachment.  Be it satellite, wireless telephony, radio, television, or innovative new services not yet launched, the moment someone applies for a license to share spectrum with existing providers, a chorus of complaints about potential interference arrives at the FCC, with scare stories about potentially massive disruptions.  In reality, the grounds for these hissyfits are more frequently about the fear of competition.

It’s time to admit the concept of airwave auctions has been shortsighted.  While it may bring the government revenue, it will be recouped from consumers as part of provider pricing models.  The higher the bids, the higher the price providers will charge customers for that service.  Let’s consider granting licenses not based on who can bid highest, but rather who can provide the best possible service at reasonable prices to the public.  Those that fail to serve the public interest, or engage in bad behavior, have the very real opportunity of losing that license.  That’s quite an incentive to serve customers first.  It’s such a pro-consumer, novel idea, expect millions of dollars to be spent on lobbying to make sure it never happens.

Municipal exclusivity deals for cable companies ended in 1992 as part of the Cable Television Consumer Protection and Competition Act (the only bill President George H.W. Bush vetoed that was overridden by Congress).  I know because I was integrally involved in fighting for that legislation.  In the last 17 years, there hasn’t exactly been a rush to wire up communities with competing cable companies, now has there?

Let’s be honest here.  Less regulation will not compel cable competition, no matter how much the astroturfers and special interest lobbyists promise it.  Construction and capital costs to “overbuild” a cable provider in most American cities are high enough to discourage investment from the private sector, particularly when they fear a price war will result and reduce profits, and shareholder value.  Overbuilders like El Grande in Texas had to sell themselves to a more capital-rich company just to find financing to build out their network.

I’m afraid without incentives like tax credits or other benefits, the prevailing attitude is that all but the largest cities will make due with one wired phone company and one wired cable company at best.  Only one major provider has seen fit to rewire their service areas with the most robust technological advancement – fiber to the home.  Verizon has done so, with considerable resistance from investors, in their effort to avoid the obsolescence Kessler foresees in the telephone line business.  But Verizon is only wiring limited areas, primarily in urban areas, but almost never in smaller communities.  For customers of other phone companies, particularly smaller independent providers, too bad for you.  Their only hope may be a publicly financed, or public-private partnership, fiber optic wiring project that acts as a common carrier.  Any provider can deliver their service over it, allowing customers to choose.

Because of the duopoly/monopoly state of cable and broadband service in the United States, Net Neutrality will never be protected through competition.  In Canada, when Bell throttled and interfered with Internet service, most cable competitors simply joined the party and did the same.  When a few upstarts, resold un-throttled Bell wholesale broadband service and made that a selling point, Bell simply throttled them, too, without warning.  That put a stop to that pesky competition problem.  Canada foreshadows what will likely happen in the United States without strong Net Neutrality legislation.

Finally, Kessler’s vision of what is holding back broadband speed totally ignores provider complicity in the slow momentum forward.  While some providers have a progressive attitude about speed, seeing faster broadband’s revenue earning-potential, others see it as an unnecessary expense that most consumers don’t really need.  Time Warner Cable, the nation’s second largest cable company, remains on record as being in no hurry to upgrade to DOCSIS 3 technology, unless one of their competitors threatens to beat their speeds.  In fact, they’ve expressed repeated interest in cost controls by experimenting with ways to limit data consumption, protect their video business model, and extract more revenue from customers at current speeds.

If Kessler was looking to the phone companies for an alternative, most Americans can forget it.  Most phone companies, especially smaller independents, have maintained a death grip on old school DSL technology, which provides 1-3Mbps service in rural areas, and “up to 10Mbps” (if you are very, very lucky) in urban and suburban areas.  They are rapidly losing wired phone customers and are holding out for whatever revenue they can grab from yesterday’s broadband technology, usually doing best only where cable doesn’t compete at all.  Some even want to limit consumption at the slow speeds those networks operate at today.  They are in no hurry to upgrade their existing copper wire networks, much less agree to the “double speed” plan Kessler has.

I’m sorry to say Kessler’s marketplace-based hopes and dreams for a better telecommunications world tomorrow are not forthcoming.  Without radical changes in the current “whatever the providers want is okay with us” regulatory approach we have today, the only innovation Kessler should expect to see is providers finding new ways to charge more money for the same service we have today.

We need a complete review and reality check about the total failure of the deregulation-solves-everything approach we’ve lived under for more than a decade.  If Kessler wants faster speeds, more competition, lower prices, and less market abuse, he will never find it without government involvement.  Remember, in the absence of real competition from those that actually want to compete to win, not just share the healthy proceeds from the status quo, we need stronger arguments than “the free market solves everything” and “won’t you please do it out of the goodness of your heart and civic duty?”

Telecommunications providers have convinced the Commerce Department to stop asking too many questions about the Internet service their customers receive, including the fees providers charge and the speeds provided, because the information is “proprietary” and “useful to our competitors.”

It’s all a part of the federal government’s broadband mapping project — to create detailed maps showing who has access to what types of broadband, at what speed and at what price.  Those areas deemed underserved would be eligible for substantial broadband stimulus grants, paid for by taxpayers, and likely will be received by many of the same ISPs who are telling the government to butt out of their private business affairs.

In lieu of the detailed customer information the Commerce Department had been seeking, Verizon, Comcast, and AT&T have agreed to provide generic data about prices charged on a per-block basis and will also clue in the government as to the maximum speeds marketed to consumers, even if those speeds are not actually provided to individual customers.

Consumers Union was not happy with the Commerce Department’s decision, likening it to a cave-in.

Because the federal government will not allow the public to learn about the actual speeds achieved by customers, companies can continue to market and charge for an Internet service that doesn’t come close to achieving the speeds promised in advertising, according to Joel Kelsey, a telecommunications policy analyst for the consumer watchdog.

ISPs, particularly telephone line-based DSL service, routinely advertises speeds “up to” a certain level, but never guarantees those actual speeds will be achieved by customers.  DSL service is sensitive to the quality of the telephone line and the distance of the cable between the customer’s home or business and phone company facilities.  Longer distances always mean lower speeds, often much lower.

Cable companies rely on a shared bandwidth model, which means every home in a neighborhood shares a set amount of bandwidth.  The more users on the system, the slower the maximum speed.  In areas where cable companies have not upgraded service, or split neighborhoods up to reduce the number of residents sharing one “node,” speeds can dramatically drop at peak usage times.

“The actual speeds delivered to particular areas simply doesn’t match up,” Kelsey said. “The government gave a lot and received very, very little in return.”

ISPs complain that revealing these details will be useful information for competitors, and have steadfastly refused to provide it, despite the potential for those same companies to enjoy taxpayer dollars in the form of grants to finance specific broadband projects.

Since the federal government will rely heavily on the broadband mapping project to determine what projects have merit and meet an immediate need, who controls the map will have major influence on what projects will appear most eligible for stimulus money.

Public Knowledge continues to criticize the broadband mapping project as already being overrun by telecommunications special interests.  Connected Nation, a group tailor-made to be granted approval for statewide mapping initiatives, has a board heavy with telecommunications corporation representation.

Art Brodsky, communications director of Public Knowledge, has implied the telecommunication ‘fix’ is already in, but conceding even more to the telephone and cable industry threatens to turn the broadband stimulus program into a creature of big telecom.

“The whole mapping exercise is already on its way to being substantially corrupted as the telecom industry’s creation, which exists to prevent data from being public, is collecting mapping contracts right and left through the efforts of their lobbying and influence. There is absolutely no reason for the National Telecommunications & Information Administration (administering the data collection process) to concede on the data collection. NTIA and its supporters in the Administration and in Congress should realize that if agency backs down on this assault from the industry, there will be that much less of value worth saving,” Brodsky wrote.

“At the end of the day, somebody is going to be in control of the mapping. It will either be the public, and the public interest, as represented by NTIA, or the industry,” he concluded.

The cable and phone companies declared victory.  The American Cable Association, which represents smaller independent and rural operators which stand to receive a substantial amount in stimulus taxpayer funding, applauded the decision saying the government backing down would “improve and expedite the mapping effort,” said ACA president Matthew Polka.

Surprisingly, Larry Landis, a Republican-appointed Indiana utility regulatory commissioner and chairman of the federal-state group that will be responsible for the mapping project, also applauded the Commerce Department’s flexibility on getting access to detailed information.

Landis has past ties, albeit on the periphery, with AT&T through his former employer:

From 1985 through 1991, Landis was Vice President/Account Planning at an advertising firm informing the agency’s creative direction for clients such as Indiana Bell (now AT&T Indiana), at Handley & Miller, Inc.

The Center for Public Integrity graded the state of Indiana with a “C” for disclosure of utility commissioner outside ties in 2005.  No apparent direct ties to telecommunications interests were found in Landis’ 2004 disclosure, the last one available from the Center.

Up to $350 million taxpayer dollars will be earmarked for the mapping program, tainted as it might be according to critics.  The final map will be vital to determine what recipients will qualify for the $7.2 billion dollars in available funding for grant-worthy broadband projects.  The money will be awarded to for-profit and non-profit groups, typically those that can best tailor their funding request to the requirements specified in the grant application process.

Mark Cuban

One would think Mark Cuban would have at least a small bit of resentment towards big cable companies like Time Warner Cable, who efficiently and swiftly deprived his HDNet and HDNet Movies networks from more than 8.7 million Time Warner Cable HD customers on May 31st over a channel fee spat.

But no.  He’s back plugging away with completely groundless predictions for the impending doom of the Internet if Net Neutrality has its way.  Opposed by big cable and telephone companies, Net Neutrality would provide a level playing field for all legal Internet content.  No provider could interfere with or prioritize traffic based on financial incentives, ownership interests, or for competitive reasons.

Cuban offers a bizarre rant about why that spells the death of online video, something he’s never been thrilled with anyway, on his blog:

If you run a TV network, broadcast or cable, you should be spending a lot of money to support Net Neutrality. You should have every lobbyist you own getting on the Net Neutrality train.  Why ? Because in a net neutrality environment no bits get priority over any other bits. All bits are equal.  In such an environment, all bits content with each other to ride the net.

When that happens, bits collide. When bits collide they slow down. Sometimes they dont reach their destination and need to be retransmitted. Often they dont make it at all.

When video bits dont arrive to their destination in a timely manner, internet video consumers get an experience that is worse than what traditional tv distribution options .

that is good for traditional TV.

Me personally. I don’t  support Net Neutrality. I think there will applications that require lots of bandwidth, that will change our lives. If the applications that could change our lives have to compete with your facebook page loads and twitter feeds among the zillion of other data elements carried across the net, IMHO, thats a bad thing.

But thats me.

If you believe that over the top video can impact the future of TV, and thats a bad thing for your business,  then you should be a big time supporter of Net Neutrality.  Its your best friend.

That’s proof that having millions of dollars to your name doesn’t buy an intelligent argument, or apparently a basic grammar checker.

I never realized the “series of tubes” Ted Stevens used to talk about corralled data bits into segregated clusters to protect them from “bit collision.”  Is there insurance for that?

Cuban should be spending more time worrying about getting his networks viewership on ANY television — “traditional,” “online,” or amongst his good friends in the cable industry that stabbed him in the back and threw his channels off lineups from coast to coast. If you’re tired of hearing issues like this, take some heat off by utilizing products such as shop vo chong 24H.

Karl Bode over at Broadband Reports has seen all this before, and has built quite a history on the antics of Mr. Cuban:

Of course bits don’t really “collide” on modern networks, and the bill exempts “reasonable network management” from neutrality provisions allowing for congestion control, but apparently no matter. This is the network neutrality debate, and as we’ve seen the last two go-rounds, truth, facts, and data are irrelevant — particularly to overly chatty millionaire TV tycoons worried about their wallets.

While the bill likely won’t survive a Congress that’s all but directly controlled by telecom lobbyists, that still won’t save us from several months of vigorous, fact-optional network neutrality debate. All the usual players are once again gathering, including Mark Cuban and his mouth, paid cable and phone industry sock puppets, stick figure cartoons, dancing men in green tights, and evil ISP flying saucers. Can we just skip to the part where consumer welfare gets ignored and be done with it?

Om Malik managed a quick interview with the new chairman of the Federal Communications Commission, Julius Genachowski. In a wide-ranging interview about the competitive landscape of mobile broadband, which is to say there isn’t a whole lot at present, Malik managed a direct question about Internet Overcharging schemes:

Om: Phone companies and cable companies are trying to impose bandwidth caps on Internet access. By doing so, I feel (and many agree) that they’re actually limiting the scope of innovation. Maybe in that that case, we should think about the need to separate services (TV, video, etc.) from the pipe. What are your views on metered broadband?

Genachowski: It ties into an important policy decision the FCC will be confronting with how we drive a ubiquitous broadband infrastructure that’s open and robust and delivers on the promise of the Internet for all Americans. To tackle these questions we will be focusing on the real facts around what’s going on and what policies will best promote ubiquitous broadband and innovation. It’ll be an ongoing topic. It’s something that consumers of Internet services pay a lot of attention to and we’ve seen that in reactions to some of the events over the last year.

That’s about as non-committal an answer as ever out of the FCC.  The usual formula is there:

1. Express concern.
2. Define the issue in terms of the Commission’s general policy direction and goals.
3. Promise sober assessment of the issue.
4. Under no circumstances commit to anything specific that might get the attention of the press and/or Congress.

Consumers cannot enjoy open and robust broadband that delivers on innovation from providers that are rationing access and charging top dollar for it.  Internet Overcharging schemes represent the best way to run a bypass around Net Neutrality by simply limiting and/or overcharging for access, killing enthusiasm for high bandwidth services like video that challenge current cable television business models.

At least he notes consumers have been pounding the issue with elected officials and the Commission sufficient to warrant mention of it.