FCC Chairman Julius Genachowski

Federal Communications Commission Chairman Julius Genachowski is expected to unveil Monday a proposal to formalize Net Neutrality protections as part of FCC policy governing broadband providers.

Genachowski is expected to make a formal announcement as part of his appearance at the Brookings Institution, according to a series of leaks Friday afternoon.

The FCC chairman is expected to introduce Net Neutrality as the fifth spoke in a wheel of principles governing broadband service in the United States.  The “Four Principles” of broadband service in the United States was developed to set guidelines providers would follow in return for a hands-off regulatory approach by the Commission.:

1. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
2. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
4. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.
5. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to open access to content without interference or discrimination by broadband providers.

The fifth principle would become part of formal FCC policy, which should provide assurances that Net Neutrality will be enforced by the Commission staff.

The establishment of Net Neutrality protection would fulfill one of the promises made by President Barack Obama during his presidential run in 2008.  The Obama Administration has consistently advocated Net Neutrality as a core tenet of American broadband service.

Genachowski is expected to underline the seriousness of his proposal by including wireless providers in the definition.  That would subject mobile broadband providers to the same rules wired providers face, an important distinction that could put a stop to wireless phone companies acting as gatekeepers to block third party software applications designed to bypass those companies’ networks and calling plans.  iPhone owners in particular have been subjected to restrictions on the types of software and services they are allowed to use on their phones used on the AT&T network.

Consumer advocates are widely anticipated to applaud the FCC’s action, but some remain concerned that an FCC rulemaking by itself does not provide the robust protection federal law would provide, particularly if an administration in power appoints FCC Commissioners uninterested in enforcing it.  A bill has been introduced in the House of Representatives to make Net Neutrality the law, not just an FCC policy.  Passing the legislation provides even stronger guarantees that Net Neutrality principles will be respected.

The move by Genachowski to move forward on formalized Net Neutrality protection now may have come after the Commission watched a federal court throw out other informal FCC policies as unconstitutional.  Comcast has a pending lawsuit against the FCC after the Commission ordered Comcast to stop interfering with peer-to-peer traffic on its broadband network.  Comcast objected to the FCC involvement and feels the Commission exceeded its authority.  Should a judge agree, in the absence of a more formalized FCC rulemaking, Comcast would be free to resume throttling the speed of certain traffic on its broadband service.

An FCC rulemaking could provide ammunition to Net Neutrality critics that passage of a federal law would be redundant and unnecessary.

Net Neutrality critics argue that broadband networks should be free to manage the traffic on their service as they see fit, suggesting the goal of providers is to provide a consistent level of broadband service to all of their customers.  They suggest consumers that find network traffic policies too onerous would take their business elsewhere, discouraging provider excess.

But advocates for Net Neutrality argue the industry can leverage an undercompetitive marketplace to throttle and restrict traffic — reducing the traffic load on and the need for upgrades. In the absence of robust competition, other providers would could follow suit.  Net Neutrality advocates are also concerned broadband providers may attempt to monetize premium levels of service for content creators.  In return for a fee, content providers would be assured of enhanced speeds and performance in reaching that ISP’s customers, while those who don’t pay find themselves on a broadband “slow lane” that could make them uncompetitive.

Genachowski’s proposal is likely to permit broadband networks sufficient flexibility to do some network management, such as blocking denial of service, spam, and virus attacks, but not allow providers to prioritize traffic based on fees.

AT&T’s Definition of Broadband Suitable for Online Gaming

AT&T’s advocacy of a federal standard for lowest common denominator broadband has struck a nerve in the online gaming industry.  Stop the Cap! reader Lance noted in a news tip that the gaming industry is unimpressed.

Upset with AT&T’s suggestion that the Federal Communications Commission should accept a definition of broadband service that is merely suitable for basic web browsing and e-mail service, the Entertainment Software Association (ESA), a trade group for the gaming industry, fired off a letter last week opposing AT&T’s bare bones approach to broadband speed and service:

AT&T argued that the baseline definition of broadband should not include what it characterized as “aspirational broadband services” and “myriad sophisticated applications:’ including streaming video, real-time voice, and “real-time, two-way gaming.” It urged the Agency to focus on more “meaningful” services, such as email, web surfing, interacting with Internet-based government services, and online education and training. According to AT&T, these are more pressing concerns for those who do not have terrestrial broadband access currently.

ESA agrees that such services are important. We disagree that the definition should stop there. Americans deserve a higher benchmark. Online video games are a meaningful part of our participative culture. They remove geographic barriers, connecting people from across the country and around the world. They teach cooperation, cultivate leadership skills, and empower users to express their creatiVity. Increasingly, games are used for training purposes and to educate students about complex social issues. If you are starting your gaming journey, get qwertybro gamer gear to have a good gaming experience. Entertaining does not mean trivial.

What AT&T describes as aspirational services are no less important to the future of the Internet than email and web browsing were to the past and are today. Whatever definition of broadband the FCC adopts, it should use a benchmark that opens the potential of the Internet to all Americans. Ultimately, consumers should determine what applications and services they find to be of value.

The ESA has a lot to learn when it comes to the broadband industry allowing consumers to determine what they want from their broadband service.  This is an industry that has several players that do not listen to their customers.  Instead, it engages in PR and astroturf lobbying campaigns to try and convince customers to accept the industry’s own agenda — higher pricing, less “abuse” of their networks, no government oversight or regulation, limited competition, and control of as much content (and the wires that content travels across) as feasible.

The type of gaming consumers expect from their broadband connection.

The ESA should not be surprised by AT&T’s desire to define broadband at the barest of minimum speeds.  AT&T still owns an enormous network of copper telephone wiring.  In rural areas, broadband service definitions based on the lowest speeds are tailor-made for the older phone system capable of delivering only slow speed DSL to consumers.  To define broadband at higher speeds would force AT&T to invest in upgrading its current infrastructure, particularly in rural communities.

Ars Technica ponders the question of whether online gaming is in fact “necessary” to consider when defining a broadband standard, and delves into a discussion about gaming and its value to society.  That misses more important points to consider:

1. With a broadband industry trying to design a broadband standard that is only capable of reasonably serving web pages, e-mail, and other low bandwidth applications commonplace a decade ago, will embracing mediocre broadband speeds help or hurt the United States and the increasingly important digital economy?  How many jobs have been created in new business start-ups that depend on leveraging a robust broadband platform in the United States?  What impact does a “go slow” approach have on American competitiveness and standing in an increasingly wired world?
2. What impact will this industry’s increased noise about Internet Overcharging schemes have on the online gaming landscape?  While many current games such as wager free casinos don’t use much data transmitting game moves back and forth during play, the software and its add-ons and updates can easily contribute to a bigger broadband bill when users update. If you love casino games, mpo888 stands out as a leading platform for online gambling, offering endless hours of entertainment. Even more relevant are the trials for the next generation online gaming services like OnLive, which consume considerable amounts of bandwidth from the moment game play begins.  The ESA would do well not to only consider the implications of slow, mediocre broadband service.  It should also consider the very real threat a heavily usage capped or overpriced consumption billing scheme would have on their future.  Will consumers play games that bring them ever closer to a monthly usage cap, or start a billing meter running the moment play begins?

“Comcast isn’t looking to make a $50 billion purchase.”

Stephen Burke, Comcast Chief Operating Officer

Now that Comcast has been freed from that pesky provision of the 1992 Cable Act, authorizing the Federal Communications Commission to set a maximum size for large corporate cable operators, the nation’s largest cable operator is now considering breaking out the checkbook and going on a shopping spree.  That is likely to spark a merger and acquisition frenzy among several players in the industry which could dramatically reduce America’s choices for telecommunications services.

Bloomberg News this evening quotes Stephen Burke, Comcast’s Chief Operating Officer, that it will consider buying other cable operators at a “good price.”

“If there is a way to acquire cable systems for what we consider a good price, ones that are well managed, we would certainly look at whatever is out three,” Burke, 51, said today at a Bank of America Corp. conference in Marina del Rey, California. Still, the company “isn’t waking up every morning” evaluating how it can become bigger, he said.

The Wall Street Journal calls the decision by the U.S. Court of Appeals in Washington, freeing Comcast from its limits, the start of “the coming cable consolidation.”

Martin Peers, writing for the Journal, said that when the dust settles, phone companies might own satellite TV providers and cable companies might end up consolidating into one or two super-sized providers blanketing the entire country with service.

Consumers would be left with a handful of providers for all of their communications needs, from telephone to broadband to television, if the courts open the door with more decisions favorable to the industry and antitrust reviews aren’t aggressively undertaken.

Starting with Comcast, Burke thinks Comcast’s first priority might be to buy up more programmers.  Comcast already has ownership interests in several cable networks, and Burke feels “content channels are good businesses, and we wouldn’t be doing out job if we didn’t try to figure out a way to get bigger in those businesses.”

With Comcast and Cablevision joining forces to sue their way out of the cable network exclusivity ban, owning and controlling those networks, and what competitors get access to their programming, could be an important asset in an ever-consolidating marketplace.  Imagine if U-verse or FiOS was denied access to ESPN, The Weather Channel, CNN, and other popular cable channels.  Would subscribers be compelled to switch providers if they could no longer get the channels they want to watch?

The Journal ponders the coming consolidation frenzy:

Comcast and other cable companies will probably need to consider more consolidation — if not now, in the next couple of years. They are still losing market share to satellite and phone rivals. Comcast lost nearly 700,000 basic subscribers in the year to June. Time Warner Cable has fallen to No. 4 among TV providers, behind satellite firms DirecTV Group and Dish Network.

Cable operators are more than offsetting video losses by selling phone and Internet-access. Eventually, though, those opportunities will peter out. And phone companies’ competitive threat in video could be enhanced by a combination with satellite TV.

The newspaper speculates about this kind of marketplace in the near future:

Today's pay television marketplace

AT&T DirecTV: The Journal ponders an AT&T buyout of DirecTV resulting in a reduction in AT&T’s investment in U-verse, pushing consumers to its newly-acquired satellite service and redirecting investment into the overburdened AT&T mobile phone network.

VerizonDISH: A Verizon buyout of DISH would allow the phone company to push more rural customers to DISH satellite service, and reduce the expense of wiring all but the nation’s largest cities with fiber optics.

Comcast (formerly Comcast & Time Warner Cable, if not others): A supersized Comcast absorbs Time Warner Cable and becomes an even more dominant cable operator, leveraging its investment in Clearwire to offer a  wireless data option to stay competitive with the mobile phone companies like AT&T and Verizon Wireless.

That would leave most Americans with just three choices for telecommunications services capable of bundling multiple products together.  Wouldn’t such a merger-mania trigger antitrust implications and government review?

The Journal doesn’t think so:

Would such a deal pass antitrust scrutiny, even absent the ownership cap? There is a good chance, say several antitrust lawyers. A major focus of antitrust law is whether a merger reduces competition in a way that could raise prices or otherwise hurt consumers. As cable operators generally don’t compete with one another, merging wouldn’t cut competition.

But what kind of benefits would be found for consumers?  If one resides in a city too small to be judged worthy of fiber optic deployment, consumers could be told to get the satellite television service and live with the copper wiring the phone companies provide today.

Cable operators would be in a fine position to compete, as they traditionally have, against satellite television because of the technical limitations of satellite service, ranging from consumer objections to having a dish on their home, to a limit on the number of sets that can be wired, to the inability to get a clear view of the satellite because of nearby trees or other obstructions.

Who pays for the debt likely incurred from a bidding war during a merger frenzy?  Guess.

Verizon today announced the 100th franchise agreement in the state of Massachusetts for FiOS TV. The Easton Board of Selectmen on Monday granted a cable franchise to Verizon to begin wiring the town of 23,000 with fiber optic service. Residents will receive visits from Verizon employees to explain and market the service, which will compete directly with incumbent cable provider Comcast.

Verizon’s growth in the state has already put them in second place behind Comcast as the largest provider of wired television and broadband service.  That position was formerly held by RCN, a cable overbuilder providing service in the Boston area.

Verizon celebrated the 100th franchise agreement by donating $1,000 to the Easton Area Public Library to purchase 100 new books.

“As a result of this new franchise, consumers in Easton will be able to choose their cable provider as easily as they choose their phone company,” said Cupelo. “Competition drives innovation, value and service quality, and it puts the consumer in control.”

Easton (in dark red), part of Bristol County, Massachusetts

Verizon research indicates 87 percent of Massachusetts residents favor more competition and choice for video services.  Independent studies suggest competition in the video market can bring reduced prices, better packages and improved service, although experiences in many communities indicate providers are more apt to compete on services and packaging, and not as much on price.

Verizon’s license agreement with the city of Easton is for 10 years.  The agreement contains provisions for the network’s future growth; financial support and capacity for educational and government access channels; cable service to government buildings; and other important benefits to the city, including insurance, indemnification and enforcement protections.

“Verizon will compete aggressively for subscribers in Easton with our FiOS services, which are fueled by our lightning-fast fiber-optic network,” Cupelo said. Verizon soon will begin its door-to-door sales campaign in Easton, explaining the many advantages of FiOS TV to local consumers.

For some local residents, the competition can’t arrive soon enough.

Comcast has alienated many Easton residents by not carrying all of the HD signals from Boston area television stations.  Easton, although essentially halfway between Boston and Providence, Rhode Island, has been defined by the Federal Communications Commission as being in the “Providence DMA” (an area of significant influence.)  That’s because parts of Bristol County have towns that are considered suburbs of Providence.  Easton’s allegiance, in the minds of many who live there, is to Boston, and residents are upset that the majority of HD broadcast stations on Comcast Cable are from Providence.

The town is actually part of a regional effort to redefine their part of Bristol County to be in the “Boston DMA” so they can petition the FCC to make a change.

The Easton Cable Commission has gotten an earful from annoyed residents, who have faced an intransigent Comcast.  They have even prepared an FAQ for residents on the matter:

Why can’t I get some Boston based HD channels on Comcast?
This is an important issue to many Easton cable subscribers. We want to take some time to explain the relevant issues just so you understand why most believe Easton residents are not getting the channels they want and the channels that they believe serve them best.

The starting point is the DMA that Easton is in.  What is a DMA?  Well, that is our problem.  DMA is short for Neilsen Media Research Designated Television Market Area. DMA’s are generally split up according to county.  Easton is in Bristol County.  A good part of Bristol County is actually considered part of suburban Providence.  Therefore, Easton, although not a suburb of Providence, is in the Providence DMA.  All cable providers must carry the primary channels that serve a DMA.   At present, Comcast must carry Providence DMA stations.  There is an effort underway to move towns inside of Route 495 into the Boston DMA.  We will petition the FCC for this change.

Oakes Ames Memorial Hall and Ames Free Library (North Easton, MA)

But the greater issue here is whether Comcast chose to eliminate Boston channels in High Definition or whether they had no choice.  For the most part, this is a Comcast choice.  The Town of Easton and our Cable Committee, unfortunately, cannot force Comcast to provide Boston channels in High Definition.  Along with the concept of DMA, there is also the concept of “Significantly Viewed” channels in an area.  This is another FCC concept which relates to stations not in the local DMA which may be referred to as “distant signals”.  A “distant signal” is one that originates outside of a satellite (or cable) subscriber’s local television market, the DMA. In addition to stations in their DMA, satellite (cable) subscribers who receive local-into-local service may, under certain circumstances, receive individual stations from markets outside their DMA that are deemed “significantly viewed” in their community. It is up to the satellite carrier whether or not to offer significantly viewed stations and a subscriber must be subscribing to local-into-local service in his or her DMA to be eligible to receive significantly viewed stations. The determination of whether or not a station is significantly viewed in a community depends on several statutory factors.  The FCC has posted the list of stations that are eligible for carriage as significantly viewed signals and the communities in which they are significantly viewed.
The following is the list for Bristol County:

Bristol
WLNE-TV, 6, Providence, RI (formerly WTEV)
WJAR, 10, Providence, RI
WPRI-TV, 12, Providence, RI
+WNAC-TV, 64, Providence, RI
WBZ-TV, 4, Boston, MA
WCVB-TV, 5, Boston, MA (formerly WHDH)
WHDH-TV, 7, Boston, MA (formerly WNAC)
WSBK-TV, 38, Boston, MA
WLVI-TV, 56, Cambridge, MA (formerly WKBG)

So, Comcast has every right to provide the above channels (which include 4,5, and 7) in High Definition.  It is their choice not to do so.  You may ask why Channel 25 is not on the above list and that is a great question.  But the answer is that the determinations for this list were made a long time ago when Channel 25 was owned by religious broadcasters.  That is how outdated all of these rules are.  It is also the reason that Comcast is forced to black out FOX 25 network programming.

There may be an alternative to Comcast in Easton by the end of the year.  We are going through a licensing process with Verizon.  They want to offer Fios tv, internet, and phone in Easton by December.  It is all of our hopes that Verizon will provide the channels that you are looking for and that competition will benefit all cable tv subscribers in Easton.

For further information please contact the Comcast Customer Care line at 1-800-COMCAST (1-800-266-2278).

In Massachusetts, FiOS TV is available in Abington, Acton, Andover, Arlington, Ashland, Bedford, Bellingham, Belmont, Boxborough, Boxford, Braintree, Burlington, Canton, Danvers, Dedham, Dover, Dunstable, Framingham, Franklin, Georgetown, Grafton, Groton, Hamilton, Hanover, Hingham, Holliston, Hopkinton, Hudson, Hull, Ipswich, Kingston, Lakeville, Lawrence, Leominster, Lexington, Lincoln, Littleton, Lynn, Lynnfield, Malden, Mansfield, Marion, Marlborough, Marblehead, Marshfield, Mattapoisett, Maynard, Medfield, Medway, Melrose, Mendon, Methuen, Middleborough, Middleton, Millbury, Nahant, Natick, Needham, Newton, Norfolk, North Andover, North Reading, Northborough, Norwood, Norwell, Plymouth, Reading, Rochester, Rockland, Rowley, Sherborn, Southborough, Stoneham, Stoughton, Stow, Sudbury, Sutton, Swampscott, Taunton, Tewksbury, Topsfield, Tyngsborough, Wakefield, Walpole, Waltham, Wareham, Wayland, Wellesley, Wenham, West Newbury, Westborough, Weston, Westwood,  Wilmington, Winchester, Wrentham and Woburn, and will soon be available in Chelmsford, Easton and North Attleborough.

A federal appeals court in Washington has struck down, for a second time, a rulemaking by the Federal Communications Commission to limit the size of the nation’s largest cable operators to 30% of the nation’s pay television marketplace, calling the rule “arbitrary and capricious.”

Judge Douglas Howard Ginsburg

The 30% rule, designed to keep no single company from controlling more than 30% of the nation’s pay-TV subscribers, was originally written in 1993 by the FCC because the agency feared a concentrated cable television marketplace would stifle innovation, lock out potential new independent programmers, and discourage new forms of competition.  The cable industry immediately called the cap an overreach, and in 2001, found a friendly reception in court, with a ruling demanding the FCC reconsider the rule in light of competition from satellite television.

The FCC determined satellite competition was inadequate alone to justify reversing the 30% ownership limit, and essentially kept the limit in place, mostly at the urging of FCC Chairman Kevin Martin, who regularly tangled with the cable industry during the Bush Administration.

The decision striking down the 30% rule came in a harshly worded ruling from Judge Douglas H. Ginsburg.

“In light of the changed marketplace, the government’s justification for the 30 percent cap is even weaker now than in 2001 when we held the 30 percent cap unconstitutional,” Judge Ginsburg wrote for a three-member panel of the court.

Ginsburg wrote the FCC was egregiously derelict in its revised rulemaking because it failed to heed the court’s direction, requiring the court to vacate the rule.

The ruling is a “significant gain for cable and apparent big victory for Comcast,” said Andrew Lipman, a Washington- based partner in the media, telecommunications and technology practice at Bingham McCutchen LLP.

The Philadelphia Inquirer noted some Wall Street analysts were pleased with the court’s decision:

Wall Street analyst Craig Moffett called the decision a “moral” victory for Comcast, which contended that the market-cap rule was politically motivated by the Federal Communications Commission and wouldn’t overcome a court challenge. The rule was passed under former FCC Chairman Kevin Martin.

Speculation about what companies Comcast could likely snap up began immediately, ranging from a conceptual merger with Time Warner Cable, the nation’s second largest cable company, to quick buyouts of smaller players like Cablevision or now-bankrupt Charter Cable.

Consumer groups were alarmed by the court ruling.

“This is not the end of the fight,” Andrew Jay Schwartzmann, president and chief executive officer of the Media Access Project, a nonprofit policy advocacy group, said in a statement. “Big cable’s anti-competitive ownership structure has increased prices and limited choices for the American public. Therefore, we will consult with the FCC on whether Supreme Court review is feasible. If not, we’ll be asking Congress to pass new legislation to ensure more choice and lower prices for cable TV service.”

Ben Scott, policy director for Free Press, noted that the intent of the original 1992 Cable Act was to promote competition and consumer choice.  Yet in most cities, consumers face a cable cartel.

“Today consumers experience perpetual price hikes by large operators that already have market dominating purchasing power to decide the fate of new channels. The promises of lower prices through competition from satellite and telecom companies in the video business have never been realized. We encourage the FCC not only to revisit cable ownership limits, but to examine a variety of policy proposals to achieve Congress’s goal to bring consumers more competition and more choice in the cable industry.”

ABC News reported that while Comcast won this legal battle, it has a way to go in the court of public opinion.

Cable providers Comcast, Time Warner and Charter draw low marks on the American Customer Satisfaction Index, tracked by the University of Michigan. On a scale of 0 to 100, Comcast and Time Warner each scored 59 this year. The satellite provider DirectTV ranked first at 71, with Cox Communications cable at 66 and DISH Network at 64.