“We did try, but it’s over now.” — Barry Diller, a major investor in Aereo

The multibillion dollar broadcasting conglomerates that control over-the-air television and most cable networks got everything they wanted today from a 6-3 decision in the U.S. Supreme Court that declared Aereo, an independent provider of online over-the-air television streams, illegal.

The court’s liberal justices joined Chief Justice John Roberts and moderate Anthony Kennedy in a complete repudiation of the legality of Aereo’s business model — selling over the air television signals received by individual tiny antennas and streamed over the Internet — without seeking permission from the stations involved. In a sweeping ruling, the court found that no matter the technology involved, any effort to resell access or copies of television programs without the permission of the copyright holders is illegal. “We conclude that Aereo is not just an equipment supplier,” Justice Breyer wrote in the opinion. “We do not see how the fact that Aereo transmits via personal copies of programs could make a difference.”

Aereo CEO and founder Chet Kanojia quickly released a statement declaring the decision “a massive setback for the American consumer.”

“We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry,” Kanojia said. “We are disappointed in the outcome, but our work is not done. We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.”

That is news to Barry Diller, perhaps Aereo’s biggest investor. He has said for months if Aereo loses in the Supreme Court, the service will be shut down. He repeated that today on CNBC.

“We did try, but it’s over now.” Diller said.

Image: Wall Street Journal

Reed Hundt, former FCC chairman under the Clinton Administration, said despite the fact the ruling may inconvenience Aereo subscribers, the court wasn’t wrong in its decision.

“Aereo has very little chance surviving in the business and Barry Diller got his hands caught in the regulatory cookie jar,” Hundt said. “You can’t use technological tricks to bypass [cable network] rules and regulations. I think that’s a very reasonable decision.”

Observers worried about the impact the Aereo case might have on ancillary services unintentionally caught up in any broad legal language, but the court appeared to carefully avoid those complications.

The ruling leaves antenna manufacturers unaffected because antenna users simply capture over-the-air signals for reception in the home without paying the kind of ongoing subscription fees Aereo charged its customers.

The decision also protects the legality of cloud computing, DVR recordings, and other new technologies not directly related to the lawsuit. “We agree with the Solicitor General that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented,” Breyer wrote.

The court’s liberal wing shared Breyer’s opinion. Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voted in favor of broadcasters including Walt Disney (ABC), Comcast (NBC), CBS Corp., and FOX.

Conservatives slammed the majority ruling against Aereo, claiming the court was bending over backwards for Hollywood and giant broadcasting conglomerates. Justice Antonin Scalia’s dissent ripped the majority’s ruling, claiming it would “sow confusion for years to come.” Scalia predicts there will be plenty of new litigation before the courts on issues related to online transmission of copyright works as a result of today’s decision.

Although Aereo was still pre-registering customers as of this afternoon, that isn’t likely to stay true for much longer. Aereo’s only bid to stay alive is to seek licensing agreements with the stations it distributes over its service. With broadcasters’ strengthened hand, it is unlikely they will be receptive to pricing agreements that would allow Aereo to continue providing service for $8 a month. Major cable and satellite operators are signing retransmission consent agreements with volume discounts that run above $1 a month per subscriber for each television station in a local area. In most cities, that would amount to at least $5 a month, but Aereo will likely face even higher costs because it lacks access to discounts.

[flv]http://www.phillipdampier.com/video/CNN Supreme Court rules against Aereo 6-25-14.mp4[/flv]

CNN attempts to explain the meaning of the Aereo case to its less-informed viewers with mixed success. But the story explains why this is relevant to cord cutters. (4:41)

[flv]http://www.phillipdampier.com/video/Bloomberg Supreme Court Rules Against Aereo in Landmark Case 6-25-14.flv[/flv]

Bloomberg News reports the Aereo case was a decisive victory for programmers who now have a strengthened hand asking for more compensation during retransmission consent negotiations with cable and satellite providers. (1:55)

[flv]http://www.phillipdampier.com/video/Bloomberg Aereo Ruling Gets Positive Response from Broadcasters 6-25-14.flv[/flv]

Broadcasters called today’s victory “pro-consumer” but that is open to debate. Bloomberg News digs deeper into what this case means for DVR and cloud storage services as well. (5:26)

[flv]http://www.phillipdampier.com/video/Bloomberg Aereo Violating Broadcaster Copyrights Stocks Up 6-25-14.flv[/flv]

Wall Street is rewarding big television networks and station owner groups with higher stock prices after winning a decisive victory against Aereo, Bloomberg reports. (2:35)

Phillip “How far will $20 get me in your office?” Dampier

Congress is famous for obfuscation when it comes to introducing legislation that promises one thing and delivers something quite different. Take the 2003 “Clear Skies Initiative,” which would have allowed the energy industry to increase polluting emissions, or “The Disclosure of Hydraulic Fracturing Fluid Composition Act,” which allows frackers to keep secret the ingredients of millions of gallons of chemicals pumped into the ground to displace natural gas, and potentially your potable drinking water.

So it shouldn’t be much of a surprise that Rep. Bob Latta (R-Ohio) wants to “protect” the open and free Internet by introducing a new bill that opens and frees the telecom companies that steadfastly support his campaign coffers to install paid Internet toll booths. Like many pieces of legislation coming from some House Republicans these days, “freedom” only extends to corporate interests, not to you or I (unless we want to start a corporation of our own.)

Reclassifying broadband as a telecommunications service under Title II of the Communications Act is the Holy Grail for Net Neutrality supporters. It offers clear oversight authority that would make future lawsuits from Comcast, Verizon and other telecom companies untenable. Earlier court decisions have laid a foundation for broadband oversight under Title II, but the FCC itself must take advantage of that opportunity, and so far it has not.

Congressman Latta has introduced legislation to make sure the FCC can never take that step. His bill would specifically prohibit the FCC from reclassifying broadband Internet access as anything beyond an unregulated “information service.”

According to Latta, only with his legislation can America be assured the Internet will stay “open and free.” — “Open and free” for the picking by companies who dream of new revenue monetizing Internet traffic. Not satisfied charging some of the world’s highest prices for Internet access, many of the largest cable and phone companies in the country now want the right to “double-dip” — charging consumers to reach Internet content and content producers for delivering it. It would be like paying postage to mail a letter and having it arrive postage due or letting the phone company charge both the caller and the person called for a long distance telephone call.

“The legislation comes after the FCC released a proposal to reclassify broadband Internet access under Title II as a telecommunications service rather than an information service,” says a press release from Latta’s office.

Would I lie to you? Rep. Bob Latta (R-Ohio)

That is patently false. In fact, FCC chairman Thomas Wheeler has twisted himself into a human pretzel with clever language and a clear determination not to reclassify broadband under Title II. Wheeler prefers sticking to the rickety Section 706 faux-authority for Net Neutrality — the same section that keeps handing FCC lawyers loss after loss in federal court. After Wheeler announced his intention to propose allowing Internet companies to build paid fast lanes for Internet traffic, the resulting backlash from content companies and the public made him grudgingly offer a “discussion” about utilizing Title II.

That kind of “discussion” will be familiar to every 16-year old teenage girl who is told “we’ll talk about it” after asking mom and dad if she can take her new 22-year old boyfriend on vacation and stay in their own hotel room.

Ironically, detractors like Latta are the ones that usually accuse Net Neutrality of solving a problem that doesn’t exist. But that didn’t stop Congressman Latta from introducing legislation to stop the current ex-telecom lobbyist chairman of the FCC from going all Elizabeth Warren on us, suddenly imposing draconian pro-consumer regulations against those job creators at the cable companies Wheeler used to represent. But on the bright side, when Wheeler doesn’t do what Latta’s bill wouldn’t let him do, Latta can still declare victory against “big government.” If you live in Latta’s district, you can read all about it in the forthcoming government-subsidized, no-postage-needed “newsletter” he and other members of Congress will pelt your mailbox with right before election time.

“In light of the FCC initiating yet another attempt to regulate the Internet, upending long-standing precedent and imposing monopoly-era telephone rules and obligations on the 21^st Century broadband marketplace, Congress must take action to put an end to this misguided regulatory proposal,” said Latta. “The Internet has remained open and continues to be a powerful engine fueling private enterprise, economic growth and innovation absent government interference and obstruction. My legislation will provide all participants in the Internet ecosystem the certainty they need to continue investing in broadband networks and services that have been fundamental for job creation, productivity and consumer choice.”

Consumers not included. Maybe he just forgot.

“At a time when the Internet economy is thriving and driving robust productivity and economic growth, it is reckless to suggest, let alone adopt, policies that threaten its success. Reclassification would heap 80 years of regulatory baggage on broadband providers, restricting their flexibility to innovate and placing them at the mercy of a government agency. These businesses thrive on dynamism and the ability to evolve quickly to shifting market and consumer forces. Subjecting them to bureaucratic red tape won’t promote innovation, consumer welfare or the economy, and I encourage my House colleagues to support this legislation, so we can foster continued innovation and investment within the broadband marketplace.”

Guess not. The Internet should only be about business in Latta’s mind. Consumers that support Net Neutrality are nothing more than parasites sucking away valuable potential profits from the dynamic, flexible and innovative world of traffic shaping, usage caps, and double-dipping.

Latta isn’t interested that your provider is turning your weekend Netflix binge into an exercise of maddening rebuffering futility as your cable/phone company waits for protection racket proceeds a paid peering agreement with Netflix. That is because he doesn’t represent you. He represents AT&T, Time Warner Cable, Comcast, and CenturyLink.

Latta can afford to travel through the Internet toll booth when one considers who his top contributors keeping his campaign flush with cash are:

• More than $32,000 in contributions from AT&T and its executives;
• $29,500 from Tom Wheeler’s old haunt — the National Cable & Telecommunications Association (Big Cable lobby);
• $15,000 from the American Cable Association (Small Cable lobby);
• $21,000 from Time Warner Cable and its executives;
• $16,000 from Verizon and its executives;
• $11,400 from CenturyLink;
• $11,000 from Comcast (they are ditching Ohio customers to Charter after merging with Time Warner Cable so why throw good money after bad).

Latta’s close friendship with Big Telecom is so obvious, it has made co-sponsoring his fact-free bill about as popular as Justin Bieber at an NAACP convention. Even his like-minded Congressional colleagues are staying away. But his industry friends sure appreciate his efforts on their behalf.

One wonders why his constituents return him to office when he would be obviously much more comfortable in his next job — lobbying for AT&T or Comcast. Before our Internet connections slow, let’s hope his constituents hasten a much-needed turbo-speed departure for the congressman, already a shadow employee of AT&T.

227194356 05 28 14 LATTA Broadband Bill (Text)
 

“Comcast Corp.’s bid to buy Time Warner Cable Inc. may be the opening act for a yearlong festival of telecommunications deals that would alter Internet, phone and TV service for tens of millions of Americans.” — Bloomberg News, May 14, 2014

Wall Street analysts remain certain Comcast and Time Warner Cable won’t be the only merger on the table this year as the $45 billion dollar deal is expected to spark a new wave of consolidation, further reducing competitive choice in telecom services for most Americans.

While the industry continues to insist that the current foundation of deregulation is key to investment and competition, the reality on the ground is less certain.

Let’s review history:

For several decades, the cable industry has avoided head-on competition with other cable operators. They argue the costs of “overbuilding” cable systems into territories already serviced by another company is financially impractical and reckless. But that did not stop telephone companies like AT&T and Verizon from overhauling portions of their networks to compete, and in at least some communities another provider has emerged to offer some competition. Some wonder if AT&T was willing to spend billions to upgrade their urban landline network to provide U-verse, why won’t cable companies spend some money and compete directly with one another?

The answer is simple: They can earn a lot more by limiting competition.

When only a few firms account for most of the sales of a product, those firms can sometimes exercise market power by either explicitly or implicitly coordinating their actions. Coordinated interaction is especially suspect where all firms seem to charge very similar prices and few, if any, are willing to challenge the status quo.

Since the 1980s, the telecommunications industry has been deregulated off and on to a degree not seen since the pioneer days of telephone service. That was the era when waves of mergers created near-monopolies in the oil, railroad, energy, tobacco, steel and sugar industries. By the late 1890s, evidence piled up that proved reducing the number of providers in a market leads to higher prices and poor service. The abuses eventually led to the passage of the Sherman Antitrust Act of 1890 and later the Clayton Antitrust Act of 1914.

Here is what happened when the cable industry was reined in during the early 1990s, only to be deregulated again.

The generation of political leaders that dominated Washington during the 1980s developed selective amnesia about economic history and dismantled many of the regulatory protections established to protect consumers, arguing competition would keep markets in check. In the broadband and cable business, that has not proved as successful as the industry represents.

At the heart of the problem is the 1996 Telecommunications Act, signed into law by President Bill Clinton. The sweeping law is littered with lobbyist landmines for consumers and their interests. Under the guise of increasing competition, the 1996 law actually helped reduce competition by removing regulatory oversight and, perhaps unintentionally, sparking an enormous rampage of industry consolidation followed by price increases. The Bush Administration kept the war on consumers going with the appointment of Michael Powell (now the CEO of the cable industry’s lobbying group) to chair the Federal Communications Commission. Under Powell, non-discriminatory access to networks by competitors was curtailed, and Powell’s FCC gave carte blanche to the cable industry’s plan to cluster its territories into large regional monopolies and a tight national oligopoly. The FCC’s own researchers quietly admitted in the early 2000s “clustering raised prices.”

By January 2001, cable operators had settled on rate increases that averaged three times the rate of inflation. While the national inflation rate hovered around 1%, cable companies routinely raised basic cable rates an average of 7% annually. Powell declared rising cable rates were not a consumer problem and adopted the industry’s classic talking point that rate increases reflect the “value of the programming” found on cable. In fact, even as cable customers grew increasingly angry about rate increases, Powell told three different reporters he wanted to further relax the FCC’s involvement in cable pricing. (McClintock, Pamela, “Powell: No Cable Coin Crisis” Variety, April 30, 2001; Hearn, Ted. “Powell: Value Matters in Cable Rates,” Multichannel News, March 13, 2002; Powell Press Conference, February 8, 2001; Dreazen, Yochi. “FCC Chairman Signals Change, Plans to Limit Intervention,” Wall Street Journal, February 7, 2001.)

Economists reviewing data found in publicly available corporate balance sheets soon found evidence that the “increased programming costs”-excuse for rate increases did not hold water. The less competition or number of choices available to consumers in the market unambiguously lead to higher prices. It has remained true since Consumers’ Union revealed the financial trickery in 2003:

The cable industry will claim that programming costs are driving prices up. While programming costs have certainly risen, a close look at the numbers shows that rising program costs account for only a small part of the rising rates.

If costs were really the cause of rising prices, then the cable industries’ operating margins – the difference between its revenues and costs — would not be rising. The facts are just the opposite. Operating margins have been increasing dramatically since 1997. The operating margin for the industry as a whole will reach $18.8 billion per year in 2002, $7 billion more than it was in 1997. Operating revenues per subscriber have increased dramatically over that period, from $208 per year to $273. That is, after taking out all the operating costs, including programming costs, cable operators have increased their take per subscriber by over 30 percent.

[…] The ability of cable operators to raise rates and increase revenues, even with rising programming costs, stems from the market power they have at the point of sale. They would not be able to raise prices and pass program price increases through if they did not have monopoly power.

Consumers’ Union also foreshadows what will happen if another wave of industry consolidation takes hold the way it did over a decade earlier:

While the cable industry has certainly increased capital expenditures to upgrade its plants, it has actually sunk a lot more capital into another activity – mergers and acquisitions.

It is the outrageous prices that have been paid to buy each other out and consolidate the industry that is helping to drive the rate increases. Between 1998, when the first mega merger between cable operators was announced, and 2001, when the last big merger was announced, cable companies spent over a quarter of a trillion dollars buying each other out. In those four years, they spent almost six times as much on mergers and acquisitions as they did on capital expenditures to upgrade their systems. At the same time, the average price paid per subscriber more than doubled.

When a cable operator pays such an outrageous price, the previous owner is reaping the financial rewards of his monopoly power. The acquiring company can only pay such a high price by assuming that his monopoly power will allow him to continue to increase prices. Monopoly power is being bought and sold and borrowed against. The new cable operator, who has paid for market power, may insist that the debt he has incurred to obtain it is a real cost on his books. That may be correct in the literal sense (he owes someone that money) but that does not make it right, or the abuse of market power legal.

Fast-forwarding to 2014, economist and Temple professor Joel Maxcy said the same basic economic truths still exist today with Comcast’s merger with Time Warner Cable.

“My concern is the merger and the consolidation of the cable and internet delivery system for consumers and what will happen to internet and cable rates and choices,” Maxcy said, voicing his hesitancy about a deal that merges the nation’s two largest cable providers. “As that industry has gotten more consolidated over time, we have seen rates go up. The answer from them is that we’ve got more choices. Are we better off or not better off? I don’t know, but certainly rates have gone up at a much faster rate than the inflation rate. The result of more monopoly power is always higher prices and less choices and it seems that this merger moves in that direction.”

“The threat from non-network content providers is a concern for the cable industry,” Maxcy added.

“We’re moving to a situation where we don’t need cable, but we still need the internet and the cable companies are the ones that have control of that,” he said. “Consolidating them together makes them more competitive against the outside forces, but the other argument makes the whole thing less competitive so they’ll have more ability to control the access to Netflix, YouTube and the like. People that may develop other similar sorts of services will have a hard time getting the access they would like to purchase those.”

Chris Stigall spoke with economist and Temple professor Joel Maxcy on Talk Radio 1210 WPHT in Philadelphia about Comcast’s attempt to purchase Time Warner Cable and what that means for consumers. Feb. 18, 2014 (12:10)
You must remain on this page to hear the clip, or you can download the clip and listen later.

Phillip “Section 706 is a road to nowhere” Dampier

After thousands of consumers joined more than 100 Internet companies and two of five commissioners at the Federal Communications Commission to complain about Chairman Tom Wheeler’s vision of Net Neutrality, the head of the FCC claims he has revised his proposal to better enforce Internet traffic equality.

Last week, huge online companies like Amazon, eBay, and Facebook jointly called Wheeler’s ideas of Net Neutrality “a grave threat to the Internet.”

In response over the weekend, an official close to the chairman leaked word to the Wall Street Journal that Wheeler was changing his proposal. Despite that, a closer examination of Wheeler’s ideas continues to show his unwavering faith in providers voluntarily behaving themselves. Wheeler’s evolving definition of Net Neutrality is fine… if you live in OppositeLand. His proposal would allow Internet Service Providers and content companies to negotiate paid traffic prioritization agreements — the exact opposite of Net Neutrality — allowing certain Internet traffic to race to the front of the traffic line.

Such an idea is a non-starter among Net Neutrality advocates, precisely because it undermines a core principle of the Open Internet — discriminating for or against certain web traffic because of a paid arrangement creates an unfair playing field likely to harm Internet start-ups and other independent entities that can’t afford the “pay to play” prices ISPs may seek.

Paid traffic prioritization agreements only make business sense when a provider creates the network conditions that require their consideration. If a provider operated a robust network with plenty of capacity, there would be no incentive for such agreements because Internet traffic would have no trouble reaching customers with or without the agreement.

But as Netflix customers saw earlier this year, Comcast and several other cable operators are now in the bandwidth shortage business — unwilling to keep up investments in network upgrades required to allow paying customers to access the Internet content they want.

While there is some argument that the peering agreement between Comcast and Netflix is not a classic case of smashing Net Neutrality, the effect on customers is the same. If a provider refuses to upgrade connections to the Internet without financial compensation from content companies, the Internet slow lane for that content emerges. Message: Sign a paid contract for a better connection and your clogged content will suddenly arrive with ease.

Wheeler has ineffectively argued that his proposal to allow these kinds of paid arrangements do not inherently commercially segregate the Internet into fast and slow lanes.

But in fact it will, not by artificially throttling the speeds of deprioritized, non-paying content companies, but by consigning them to increasingly congested broadband pipes that only work in top form for prioritized, first class traffic.

With Wheeler’s philosophy “unchanged” according to the Journal, his defense of his revised Net Neutrality proposal continues to rely on non germane arguments.

For example, Wheeler claims he will make sure the FCC “scrutinizes deals to make sure that the broadband providers don’t unfairly put nonpaying companies’ content at a disadvantage.” But in Wheeler’s World of Net Neutrality, providers would have to blatantly and intentionally throttle traffic to cross the line.

“I won’t allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service,” Mr. Wheeler wrote (emphasis ours) to Google and other companies.

But if your access to YouTube is slow because Google won’t pay Comcast for a direct connection with the cable company, it is doubtful Wheeler’s proposal would ever consider that a clear-cut case of Comcast “forcing” customers into a “slow lane.” After all, Comcast itself isn’t interfering with Netflix traffic, it just isn’t provisioning enough room on its network to accommodate customer demand.

Another side issue nobody has mentioned is usage cap discrimination. Comcast exempts certain traffic from the usage cap it is gradually reintroducing around the country. Its preferred partners can avoid usage-deterring caps while those not aligned with Comcast are left on the meter.

Wheeler

Some equipment manufacturers are producing even more sophisticated traffic management technology that could make it very difficult to identify fast and slow lanes, yet still opens the door to further monetization of Internet usage and performance in favor of a provider’s partners or against their competitors.

With Internet speeds and capacity gradually rising, the need for paid priority traffic agreements should decline, unless providers choose to cut back on upgrades to push another agenda. Already massively profitable, there is no excuse for providers not to incrementally upgrade their networks to meet customer demand. Prices for service have risen, even as the costs of providing the service have dropped overall.

Wheeler seems content to bend over backwards trying to shove a round Net Neutrality framework into a square regulatory black hole. Former chairman Julius Genachowski did the same, pretending that the FCC has oversight authority under Section 706 of the Telecommunications Act. But in fact that section is dedicated to expanding broadband access with restricted regulatory powers:

The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

The spirit of the 1996 Telecom Act was  deregulation — that language pertaining to “regulatory forbearance” encourages regulators to restrain themselves from reflexively solving every problem with a new regulation. The words about “removing barriers to infrastructure investment” might as well be industry code language for the inevitable talking point: “deregulation removes barriers to investment.”

With a shaky foundation like that, any effort by the FCC to depend on Section 706 as its enabling authority to oversee the introduction of any significant broadband regulation is a house of cards.

The D.C. Circuit Court of Appeals agreed. In the Verizon network management case, the court found that the FCC was not allowed to use Section 706 to issue broad regulations that contradicted another part of the Communications Act.

U.S.C. 153(51) was and remains the FCC’s Section 706-Achilles Heel and the judge kicked it. This section of the Act says “a telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

The current president of the National Cable & Telecommunications Association (NCTA) Michael Powell — coincidentally also former chairman of the FCC under President George W. Bush — helped see to it that broadband was not defined as a “telecommunications service.” Instead, it is considered an “information service” for regulatory purposes. This decision shielded emerging Internet providers (especially big phone and cable companies) from the kinds of traditional telecom utility regulations landline telephone companies lived with for decades. Of course, millions were also spent to lobby the telecom deregulation-friendly Clinton and Bush administrations with the idea to adopt “light touch” broadband regulatory policy. A Republican-dominated FCC had no trouble voluntarily limiting its own authority to oversee broadband by declaring both wired and wireless broadband providers “information services.”

Tom Wheeler is the former president of the National Cable & Telecommunications Association

So it was the FCC itself that caused this regulatory mess. But the Supreme Court provided a way out, by declaring it was within the FCC’s own discretion to decide how to regulate broadband, either under Title I as an information service or Title II as a telecommunications service. If the FCC declares broadband as a telecommunications service, the regulatory headaches largely disappear. The FCC has well-tested authority to impose common carrier regulations on providers, including Net Neutrality protections, under Title II.

In fact, the very definition of “common carrier” is tailor-made for Net Neutrality because it generally requires that all customers be offered service on a standardized and non-discriminatory basis, and may include a requirement that those services be priced reasonably.

Inexplicably, Chairman Wheeler last week announced his intention to keep ignoring the straight-line GPS-like directions from the court that would snatch the FCC’s attorneys from the jaws of defeat to victory and has recalculated another proposed trip over Section 706’s mysterious bumpy side streets and dirt roads. Assuming the FCC ever arrives at its destination, it is a sure bet it will be met by attorneys from AT&T, Comcast, or Verizon with yet more lawsuits claiming the FCC has violated their rights by exceeding their authority.

Wheeler also doesn’t mollify anyone with his commitment to set up yet another layer of FCC bureaucracy to protect Internet start-ups:

Mr. Wheeler’s updated draft would also propose a new ombudsman position with ‘significant enforcement authority’ to advocate on behalf of startups, according to one of the officials. The goal would be to ensure all parties have access to the FCC’s process for resolving disputes.

Anyone who has taken a dispute to the FCC knows how fun and exciting a process that is. But even worse than the legal expense and long delays, Wheeler’s excessively ambiguous definitions of what constitutes fair paid prioritization and slow and fast lanes is money in the bank for regulatory litigators that will sue when a company doesn’t get the resolution it wants.

Wheeler promises the revised proceeding will invite more comments from the public regarding whether paid prioritization is a good idea and whether Title II reclassification is the better option. While we appreciate the fact Wheeler is asking the questions, we’ve been too often disappointed by FCC chairmen that apply prioritization of a different sort — to those that routinely have business before the FCC, including phone and cable company executives. Chairman Genachowski’s Net Neutrality policy was largely drafted behind closed doors by FCC lawyers and telecom industry lobbyists. Consumers were not invited and we’re not certain the FCC is actually listening to us.

The Wall Street Journal indicates the road remains bumpy and pitted with potholes:

Mr. Wheeler’s insistence that his strategy would preserve an open Internet, without previously offering much insight into how, has been a source of disquiet within his agency. Of the five-member commission, both Republicans are against any form of net neutrality rules, which they view as unnecessary. Commission observers will be watching the reaction of the two Democrats, Ms. Rosenworcel and Mignon Clyburn, to Mr. Wheeler’s new language.

“There is a wide feeling on the eighth floor that this is a debacle and I think people would like to see a change of course,” said another FCC official. “We may not agree on the course, but we agree the road we’re on is to disaster.”

There is still time to recalculate, but we wonder if Mr. Wheeler, a longtime former lobbyist for the wireless and cable industries, is capable of sufficiently bending towards the public interest.

Neil Smit, CEO, Comcast Cable (left), Ryan Lawler, TechCrunch (right)

Of all the tech companies to turn up at TechCrunch’s Disrupt New York 2014 event, Comcast Cable seemed the least likely to qualify as the kind of innovative start-up TechCrunch loves to cover.

But there sat Comcast Cable CEO Neil Smit with TechCrunch’s Ryan Lawler, discussing Comcast’s mega-merger with Time Warner Cable, its peering agreement with Netflix, broadcast TV streamer Aereo, and Comcast’s legendary dismal customer service.

Smit’s arrival on stage to a smattering of tentative applause was a clear sign there was no love for the cable giant in the audience, particularly from many New York area Time Warner Cable customers dreading a future with Comcast.

Smit was immediately confronted with the fact Comcast was recently voted the Worst Company in America by Consumerist readers, prompting yet another promise that improving customer service was Comcast’s “top priority,” the same promise Comcast gave in 2007, 2008, 2009, 2010, 2011, 2012, and 2013.

“I think if there’s one thing to disrupt in our business, it’s customer service,” Smit added.

Smit defended Comcast’s merger with Time Warner, relying heavily on video subscribers to downplay the concentrated market power Comcast would have after the merger. Smit pointed out Netflix has the largest subscriber count of any pay television channel or platform and denied Lawler’s contention that a merger would give Comcast more than 50% of the American broadband market.

“I think the number is a little less than that — it is closer to 40% but if you include wireless than it would be less than 20%,” Smit responded, referring to the LTE 4G wireless networks from wireless carriers that come with very low usage caps and very high prices.

Smit also promised major broadband speed upgrades and other improvements for Time Warner Cable customers, but nobody mentioned Comcast’s gradual reintroduction of usage caps on residential broadband accounts.

Comcast Cable’s CEO also addressed several other hot button issues:

Smit claimed Comcast has a good working relationship with the FCC and is providing advice on whatever changes to Net Neutrality FCC chairman Tom Wheeler will propose later this month.

Despite the fact Comcast could ultimately benefit if Aereo is found to be legal by the U.S. Supreme Court, Smit recognized Comcast also owns NBC and other broadcast programmers and was concerned about the economic impact if cable operators stopped paying for over-the-air programming.

“We pay $9 billion a year for content,” Smit said. “One of the things that I question in the Aereo solution is: are they paying for content? The spend for that content has to come from somewhere.”

Smit also noted Comcast is increasingly targeting younger audiences by signing deals with college campuses to bring Comcast service to students to hook them as future subscribers. Comcast is also creating new packages with fewer channels to appeal to millennials. Smit also acknowledged many younger family members are accessing cable programming using passwords associated with their parent’s cable account.

[flv]http://www.phillipdampier.com/video/TechCrunch Interview with Neil Smit 5-6-14.mp4[/flv]

Here is the complete interview TechCrunch conducted with Comcast Cable CEO Neil Smit. (22:20)