Sinclair Broadcasting is threatening to pull 33 television stations in 21 cities from Time Warner Cable customers on January 1st if the cable company doesn’t agree to demands to pay around 20-25 cents per month per subscriber for each of the stations, primarily Fox and MyNetworkTV affiliates.

It’s just the latest in a series of retransmission rights battles underway between broadcasters and cable companies over cable carriage agreements.

Sinclair is a major group owner of television stations, and the impact on viewers in places like western New York, Dayton, Ohio, Greensboro, N.C., San Antonio, Tex., and Pittsburgh, Pa., won’t be missed because these markets have multiple Sinclair-owned or programmed stations involved in the dispute.

As always, the dispute is about money.  This week, viewers of affected stations, including our readers Lance and Andrew, started being annoyed with repeated warnings scrolled at the bottom of screens about the potential loss of their “favorite stations.”  In the case of WUHF, viewers might have thought a serious weather warning was being issued as text crawled against a distinctive red background.

So far, the dispute has not infected Sinclair’s local newscasts, which have often been used as a sounding board for the company’s past retransmission consent fights.  But then, many Sinclair stations have abandoned producing local news themselves over the past few years as a cost-savings measure.  However, many of the stations involved have put the dispute high on their home pages, as a too-cute-by-half link: “Learn About Time Warner Cable’s Plans to Drop Carriage Of This Station.”  Sinclair leaves no doubt about who they blame for the debacle.

Stations Impacted

• AL  Birmingham — WTTO (CW)
• AL  Birmingham — WABM (MyNetworkTV)
• FL  Pensacola — WEAR (ABC)
• FL  Tallahassee — WTWC (NBC)
• FL  Tampa — WTTA (MyNetworkTV)
• KY  Lexington — WDKY (Fox)
• ME  Portland — WGME (CBS)
• MO  Girardeau — KBSI (Fox)
• NC  Greensboro — WXLV (ABC)
• NC  Greensboro — WMYV (MyNetworkTV)
• NC  Raleigh — WLFL (CW)
• NC  Raleigh — WRDC (MyNetworkTV)
• NY  Buffalo — WUTV (Fox)
• NY  Buffalo — WNYO (MyNetworkTV)
• NY  Rochester — WUHF (Fox)
• NY  Syracuse — WSYT (Fox)
• NY  Syracuse — WNYS (MyNetworkTV)
• OH  Cincinnati — WSTR (MyNetworkTV)
• OH  Columbus — WSYX (ABC)
• OH  Columbus — WTTE (Fox)
• OH  Dayton — WKEF (ABC)
• OH  Dayton — WRGT (Fox)
• SC  Charleston — WTAT (Fox)
• SC  Charleston — WMMP (MyNetworkTV)
• PA  Pittsburgh — WPGH (Fox)
• PA  Pittsburgh — WPMY (MyNetworkTV)
• TX  San Antonio  —  KABB (Fox)
• TX  San Antonio — KMYS (MyNetworkTV)
• VA  Norfolk — WTVZ (MyNetworkTV)
• WI  Milwaukee — WVTV (CW)
• WI  Milwaukee — WCGV (MyNetworkTV)
• WV  Charleston — WCHS (ABC)
• WV  Charleston — WVAH (Fox)

Sinclair’s website warns viewers negotiations with Time Warner Cable are not promising:

Sinclair (or in some cases the licensees of the television stations not owned by Sinclair) and Time Warner are in the process of negotiating a renewal of the current agreement between Sinclair and Time Warner Cable which is scheduled to expire on December 31, 2010. Without a renewal, Time Warner Cable will no longer have the right to carry the broadcast of the television stations covered by this expiring agreement. Unfortunately, based on the status of the negotiations Sinclair does not believe we are going to be able to reach agreement on an extension of the deal. As a result, Time Warner would no longer be carrying the stations covered by the agreement with Sinclair beginning on January 1, 2011. Although some might try and characterize this as a dispute, in the end it represents nothing more than the failure of two companies to reach a business agreement, something that happens in the business world thousands of times a day.

Taking a cue from News Corp., Sinclair claims Time Warner Cable is stalling, hoping the Obama Administration will intervene and prohibit signal blackouts while negotiations are still underway.  Despite the claim the cable company is the one with the plan to drop stations, Sinclair informs viewers it is giving them early warning to help them make arrangements with alternative providers like Verizon FiOS, AT&T U-verse, or satellite companies to “avoid interruptions” in programming.

Time Warner Cable recognized the seriousness of the Sinclair dispute and has given it top billing on their Roll Over or Get Tough website.  So far, the cable company has rolled over in every dispute, eventually caving to programmer demands.  But the cable company would claim it has at least reduced the rates being demanded, or won concessions that allow subscribers to catch shows on-demand as part of its TV Everywhere project.

Because the cable industry has so far been dealt the weaker hand in these disputes, they are spending an increasing amount on lobbying the issue in Washington, right down to creating a front group that claims to represent viewers.  The s0-called “American Television Alliance,” has a mission statement that, on the surface, doesn’t wade too deep into actual solutions:

The ATVA’s mission is a simple one – to give consumers a voice and ask lawmakers to protect consumers by reforming outdated rules that do not reflect today’s marketplace.  We are united in our determination to achieve our goal: ensure the best viewing experience at an affordable price, without fear of television signals being cut off or public threats of blackouts intended to scare and confuse viewers.

The overwhelming majority of the interests represented by the ATVA are giant cable and phone companies (and two groups willing to play along when sharing common interests: Public Knowledge and the New America Foundation.)

The group filed comments petitioning the Federal Communications Commission to modify retransmission consent policy to give cable and phone companies additional tools to battle with intransigent broadcasters.  The most important, and one we agree with, is an end to the ban on importing distant network signals from nearby cities to replace those from local stations who simply dump “take it or leave it” offers on operators who then raise rates to cover ever-inflating programming costs.

As it stands now, cable systems cannot grab network stations from other cities to at least restore network programming, because FCC rules prohibit it, even if the nearby station doesn’t mind.  While that might not help Time Warner viewers in cities like Rochester, where the nearby Fox affiliates in both Buffalo and Syracuse are also owned by Sinclair, the cable operator’s extended reach made possible serving all three major upstate cities might still deliver relief by grabbing further distant Fox stations like WYDC in Corning, WFXV in Utica, or WFXP in Erie, Pa and distributing them across all three affected cities.

Unfortunately, the Fox TV network has also made it clear stations could risk their affiliation deals with the network if they were to grant retransmission consent to providers that effectively undercut other Fox affiliates.

The ATVA also wants providers to retain the right to continue carrying disputed signals so long as good faith negotiations are ongoing, and has also suggested binding arbitration as another alternative reform.  Broadcasters have rejected both.

Some of the ATVA’s proposals are worthy of merit to benefit consumer interests, but consumer groups might do better creating their own group to fight this issue, if only to keep broadcasters from dismissing the group as heavily stacked with cable and phone companies with a biased, vested interest in the outcome.

Just reviewing the FCC petition left a bad taste when they quoted everyone’s favorite “dollar-a-holler” group — the League of United Latin American Citizens, which continues to amaze with its omnipresent Zelig-performance in just about every telecommunications policy debate involving LULAC’s benefactors.

More than a few politicians are likely to accept broadcaster arguments, which would ultimately weaken the effectiveness of any reform effort.

Three years ago, Bush Administration FCC Chairman Kevin Martin championed an initiative to offer free national Internet access across the United States via wireless access.  Martin’s idea was to take a portion of unused spectrum and auction it to a company that agreed to set aside 25 percent of the 2 GHz “AWS-3” band for a free, slow speed Internet service.  The winning bidder could underwrite the free service with online advertising and sell access to the remaining 75 percent of the spectrum, presumably for faster access.  Think NetZero for the 21st century.

That proposal just happened to coincide with a nearly identical plan offered by M2Z Networks Inc., a politically-connected start-up backed by Kleiner Perkins Caufield & Byers partner John Doerr and loaded with former FCC people.

M2Z had everything the FCC wanted from an applicant:

• a minority owned business that would raise the percentage of minority-owned telecommunications businesses;
• a willingness to agree to Martin’s demands that the free Internet service be censored to remove adult content;
• sufficient financial backing to win the spectrum auction;
• political connections that could help drive the plan through a political minefield and objections from incumbent commercial providers.

John Muleta, co-founder and CEO of M2Z Networks, also headed the FCC's Wireless Telecom Bureau between 2003 and 2005.

M2Z planned to offer free Internet access below the definition of broadband speeds defined in America’s National Broadband Plan — 768kbps, and would also include web advertising injected by M2Z.  Premium, paying customers could access faster speeds and avoid the extra advertising.

Unfortunately for the project’s boosters, Martin’s maverick proposal met a roadblock of opposition, including from his boss, President George W. Bush.  Commercial providers, especially AT&T, Verizon, and T-Mobile immediately attacked the plan.  AT&T and Verizon did not want a competitor giving away free wireless access when they were charging top dollar for it.  T-Mobile objected, fearing interference to spectrum it owned nearby (fears that proved not credible).  Civil rights and consumer groups objected to Martin’s insistence that adult content be blocked using imperfect filtering software.  Still others thought M2Z would never be able to cover 95 percent of America within a decade, as required by Martin’s proposal.  Some speculated M2z would launch service, deploy it to major cities, and then petition the FCC to forget about the 95 percent requirement.

Philosophically, many industry groups also objected to the Commission sticking its nose in private company business plans, dictating the services offered by the winning bidder.

Despite some willingness by M2Z to compromise on issues like the “smut filter,” with the remaining parade of opposition it came as no surprise the FCC left M2Z’s proposal on the back burner for the remainder of the Bush Administration.

With the arrival of the Obama Administration, Kevin Martin was out at the FCC.  In came Julius Genachowski and a National Broadband Plan.

The concept on offer from M2Z just didn’t fit the vision of America’s broadband transformation.  Although wireless 3G and 4G networks remained hot topics, other wireless projects have simply not gotten as much attention outside of rural areas.  As many community-owned Wi-Fi services shut down, the concept of free, slow-speed broadband just wasn’t a hot topic any longer.  Even worse, approving a plan offering speeds well below the FCC’s proposed definition of broadband threatened to muddy the message America needs faster access.  Last week, the FCC quietly sent word to M2Z that they had rejected their proposal, effectively killing the venture.

How broadband advocates frame broadband expansion can be critical to the plan’s success.  Critics already opposed to broadband stimulus programs could argue M2Z offered a free market, privately-funded solution to Internet adoption without spending billions of taxpayer dollars.  Although 768kbps would offer little to solve the digital divide, totally free access isn’t something easily ignored, even if M2Z was never capable of extending service to 95 percent of the country.

But in the end, vociferous objections from AT&T, Verizon, and T-Mobile were probably the primary reason for the plan’s ultimate demise.

After all, if you could get free wireless access at speeds comparable to what several carriers realistically deliver to their 3G customers today for upwards of $60 a month, would you remain a paying customer?

[flv]http://www.phillipdampier.com/video/C-SPAN M2Z Networks The Communicators 10-11-07.flv[/flv]

In October 2007, C-SPAN’s “The Communicators” spent 30 minutes discussing the state of competitiveness in American broadband and how M2Z planned to shake up the duopoly.  Three years later, the duopoly remains and M2Z’s plan is dead.  (29 minutes)

Verizon and Google have reached an agreement in principle to deal away Net Neutrality protections for American broadband users according to a late report in today’s Washington Post.

Cecilia King writes the agreement is days away from being revealed in public, but two sources verified Verizon and Google have agreed to a split the difference on Net Neutrality — abandoning the open Internet concept for wireless broadband, but protecting against service providers holding bidding auctions over the speed of web content delivery.

Verizon wouldn’t confirm that a deal was struck but said in an e-mail statement:

“We’ve been working with Google for 10 months to reach an agreement on broadband policy. We are currently engaged in and committed to the negotiation process led by the FCC. We are optimistic this process will reach a consensus that can maintain an open Internet and the investment and innovation required to sustain it.”

Specifically, Google and Verizon’s agreement would prevent Verizon from offering paid prioritization to the biggest bidders for capacity on its DSL and fiber networks, according to the sources. But any promises regarding open-Internet access wouldn’t apply to mobile phones, the sources said, speaking on the condition of anonymity because the companies have not officially made their announcement.

And Verizon could offer managed services — better quality to some Web sites such as those offering health care services, the sources said. But some analysts speculate that managed services could also include discounted YouTube and other services to FiOS customers at better quality.

Public interest groups, some occasionally accused of being in bed with Google, were outraged at the news.

“The fate of the Internet is too large a matter to be decided by negotiations involving two companies, even companies as big as Verizon and Google, or even the six companies and groups engaged in other discussions at the Federal Communications Commission (FCC) on similar topics,” said Gigi Sohn, president of public interest group Public Knowledge.

The clear distancing from Google’s settlement illustrates these pro-consumer groups are not simply shilling for Google’s public policy positions.

For Stop the Cap!, the implications are extremely disturbing.  As outlined, this compromise deal would relegate wireless broadband to usage caps, speed throttles, and content blockades indefinitely.  Should “improved quality” service on the wired side be an available option, it could allow the broadband industry to mount a devastating campaign to end would-be competitors, especially to their video businesses.  Cable and phone companies could pick winners and losers (with their products being the winners, and would-be competitors the losers) by prioritizing high quality video services, exempting their partners from Internet Overcharging schemes like usage caps, and subjecting would-be, “non-preferred” content providers to usage and speed-restricted broadband lines.

Offering preferred content producers discounted rates would also completely change the business models of content distribution and discourage investment in would-be challengers that could provide consumers with other video options.

More importantly, it provides an example of an Obama Administration ruthlessly willing to cut consumers out of the debate about Net Neutrality, while forcing them to live with the results.  King notes the priorities of Google and Verizon don’t exactly include consumers:

According to the sources, Verizon and Google have met separately to reach an agreement they will tout as an example of successful self-regulation. Once bitter opponents in the so-called net neutrality debate, the firms have grown closer on the issue as their business ties have also strengthened. Verizon partners with Google on their Android wireless phones.

Their actions could set a course for the FCC meetings and what ultimately the parties could present to lawmakers, analysts said.

Voluntary self-regulation worked so well with Wall Street banks and the housing market that a disconnected crowd inside the beltway is willing to give it another try with a broadband industry that is already a duopoly for most consumers.  Psychic abilities are not required to guess at the eventual outcome.

Update 12:30pm — The denials are flying over a NY Times piece that claims Google has agreed to pay Verizon’s asking price for prioritized traffic:

Google: “The New York Times is quite simply wrong. We have not had any conversations with Verizon about paying for carriage of Google traffic. We remain as committed as we always have been to an open internet.”

Verizon: “The NYT article regarding conversations between Google and Verizon is mistaken. It fundamentally misunderstands our purpose. As we said in our earlier FCC filing, our goal is an internet policy framework that ensures openness and accountability, and incorporates specific FCC authority, while maintaining investment and innovation. To suggest this is a business arrangement between our companies is entirely incorrect.”

Is Rahm Emanuel the consigliere to a deal to sell out broadband consumers to big telecom companies like AT&T, Verizon, and Comcast?

White House Chief of Staff Rahm Emanuel is said to so afraid of big phone and cable companies donating millions to Republican candidates, he told agencies like the Federal Communications Commission to go along with Verizon, AT&T, and Big Cable’s demands for an end to Net Neutrality and other pro-consumer broadband reforms.

That is the rumor industry expert Dave Burstein is hearing about the prospects of broadband reclassification actually happening at the FCC this year.

It seems Verizon’s CEO Ivan Seidenberg has become a frequent guest at the White House, appearing 16 times since President Obama took office.  Seidenberg is behind the notion that saddling giant telecommunications companies with Net Neutrality will force those firms to flood Republicans with unprecedented campaign contributions.  That’s fascinating news, especially since most politicians claim campaign contributions never make any difference in how they vote on issues.  Perhaps Verizon is just being extra charitable this year.  The Republicans, who fall lock-step in support behind the nation’s largest phone and cable companies, will be delighted to accept.

With politicians like Rahm Emanuel involved, the fix may already be in.  Rule number one in politics is to always follow the money.  Rule number two is that many politicians will always take the money and vote against their constituents’ best interests unless voters are paying attention.  When a politician is forced to weigh the consequences of accepting a fat check from a corporation and voting with them or infuriating their constituents to the point of potentially losing the next election, they’ll vote with their constituents.

Meanwhile, telecom companies are engaged in a divide-and-conquer strategy, with Verizon recently making gestures to Google, one of Net Neutrality’s strongest  proponents.  Burstein thinks that unless public interest groups and the public-at-large don’t force an end to these insider deals, Net Neutrality and other broadband reforms will become little more than a voluntary agreement not to be too evil (until they redefine ‘evil’ as ‘good’ and do it anyway):

Julius (Genachowski) has already agreed to almost everything [telecom lobbyists] really want, including loopholes wide enough to carry 350 TV channels. [Stifel Nicolaus] says there is still some opposition so that nothing is final and that the public interest groups are ready to assail Julius. Meanwhile, Verizon and Google are discussing a separate peace that will make the FCC irrelevant.

This one is about power and money, not principle. The likely outcome is an agreement that will allow everyone to say noble things, will allow Julius to look himself in the mirror, and will essentially have no substance.  I hope I’m wrong.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Bloomberg Bloomberg’s Shields Discusses Net-Neutrality Battle 8-3-10.flv[/flv]

Bloomberg News reviews the regulatory landscape with the FCC’s secret weekend meetings to find a deal on broadband rules.  (2 minutes)

For consumer groups like Free Press and Public Knowledge, already furious over secret backroom negotiations between FCC officials and the nation’s large phone and cable companies, any deal that culminates in providers being allowed to tamper with Internet traffic, choosing favorites along the way, is tantamount to a deal with Tony Soprano.

Tim Karr from Free Press wrote a guest editorial in the Seattle Times Sunday warning there is a corporate deal in the making to take over the Internet:

On the one side, elected officials and regulators have heard from millions of citizens demanding that Washington protect this rule that preserves the Internet’s open architecture.

On the other is a lobbying juggernaut that seeks to dismantle online openness so that phone and cable companies can rebuild the Internet as a gated community that serves their bottom line.

The problem is that policymakers aren’t holding the line for the public. They seem content simply to cut a deal between companies with the most political and economic clout.

If that doesn’t worry you, it should.

Because the deal they’re cutting is over who ultimately wins control of online information. And it goes without saying that you’re not in the running.

Google, Verizon, AT&T and others are reportedly nearing consensus on an agreement that could radically redesign the Web, allowing the carriers to build priority access lanes that admit only large companies that can pay the toll.

Where will that leave the rest of us? Stranded on the digital equivalent of a winding dirt road, with slower service, fewer choices and limited access.

Here’s the kicker. The Federal Communications Commission, the one agency tasked with protecting your interests online, may be poised to sign off on this plan. The agency is reportedly convening closed-door meetings with these companies to strike a deal that would let Internet providers implement a “paid prioritization” scheme.

According to The Washington Post, the FCC’s chief of staff wanted to “seize an opportunity to agree on ways that carriers could “manage traffic” on their networks.

If recent articles by Amazon and AT&T execs are any indication, paid prioritization would allow carriers to ransom access to their customers to the highest bidder. AT&T’s top lobbyist, James Cicconi, wrote that such extortion was “not only necessary but in the best interest of consumers.”

Don’t believe it. The beauty of the open Internet is that anyone with an idea has a chance to take on giant corporations without first having to bribe network owners for access. Net neutrality is the rule that guarantees this openness.

It’s because of Net neutrality that great ideas like YouTube (which began in an office above a pizzeria in San Mateo) and Twitter (which grew out of a daylong brainstorming session among podcasters) blossomed to revolutionize how we connect and communicate with one another.

The paid prioritization deal under consideration wouldn’t allow for the next YouTube. And the next Twitter would likely never make it off the drawing board.

This scheme would let companies like Comcast and AT&T favor their own video services, voice applications and social media. It would let Verizon build a wide moat around its Internet fiefdom, insulating itself from competition by upstart innovators that want to show consumers how things can be done better and more cheaply.

Columbia Law Professor (and Free Press board chairman) Tim Wu has said that letting carriers choose favorites is “just too close to the Tony Soprano vision of networking: Use your position to make threats and extract payments. This is similar to the outlawed, but still common, ‘payola’ schemes in the radio world.

“If allowing network discrimination means being stuck with AT&T’s long-term vision of the Internet,” Wu concludes, “it won’t be worth it.”

Should any of this come to pass, it will mark the end of any credibility for FCC Chairman Julius Genachowski, who will have sold out to the interests of big telecom and, more importantly, proved himself little more than another inside-the-beltway-liar.  The implications for the Obama Administration’s credibility on broadband issues are devastating.

It was Genachowski himself who promised this would be the most open FCC ever and that he would see to it that the open principles of the Internet were safeguarded.  It’s more than a little difficult to see that happening while Genachowski’s staff secretly meets with telecom lobbyists to conclude a deal that will turn over control of Internet traffic to a broadband duopoly.

This man could be one of five helping to guide the future of your broadband service. Kyle McSlarrow is the head of the cable industry lobby.

Free Press, the pro-consumer advocacy group, spent $42,000 to alert the public the fix was in at the Federal Communications Commission.

The agency has been holding secret meetings with four (now five) contenders in the battle for consumer broadband reform: Verizon, AT&T, Google, and Skype.  The Washington Post reports this morning the lack of cable industry participation we reported last night has apparently not been a problem after all.  The cable industry lobbying group NCTA is also invited.

Consumers aren’t invited.  Neither is the press.

Josh Silver from Free Press:

“It looks like yet another federal agency is catering to big business behind closed doors and ignoring the American public. It’s inexcusable that the FCC is brokering backroom deals with industry lobbyists, while pretending to run a transparent process. After the financial crisis and the oil spill, you would think the Obama administration would have learned a lesson. But we won’t stand by and watch the Internet go the way of Wall Street and the Gulf of Mexico.”

“Despite the chairman’s campaign to be transparent, it’s doing the same things as the previous administration,” added Silver.

A source at the meeting said the sides were far apart on the issues — telecommunications companies oppose Net Neutrality, content producers favor it.  Telecom companies don’t want broadband oversight, some content producers do.