Phillip "Of course you know this means war" Dampier

Sizing up the big winners from FCC Chairman Julius Genachowski’s latest Net Neutrality proposals is as simple as putting those praising Genachowski in column “A” and those outraged by downsized consumer protections into column “B.”  It comes as no surprise Big Telecom, the employees whose jobs depend on those companies, their trade associations and lobbyists are all living it up on the “A” side while consumers and public interest groups sit in the dark in column “B.”

Among the high-five club is Kyle McSlarrow, the outgoing head of the National Cable and Telecommunications Association, the cable industry’s top lobbying enterprise.

On the NCTA’s blog, an indication of your broadband future has been placed front and center — a meter.  Perhaps putting a coin slot on your cable modem or a credit card reader on the side of your monitor would be a bit too brazen, even for this industry.

McSlarrow, among others, heaped bountiful praise on the FCC chairman for his ‘enlightened’ views on Net Neutrality.  That hardly a surprise considering Genachowski has opened his phone line, and apparently his heart, to industry propaganda and arguments.

Genachowski’s remarks about usage-based pricing, in particular, were a breath of fresh air to Wall Street and providers clamoring to dispense with unlimited broadband service for consumers to increase profits:

Our work has also demonstrated the importance of business innovation to promote network investment and efficient use of networks, including measures to match price to cost such as usage-based pricing.

“This approach reflects a responsible and considered view of a fast-moving and highly dynamic marketplace but it doesn’t assume that there is any one ‘correct’ answer,” McSlarrow wrote.

It’s also a view consumers strongly disagree with, but those opinions are off the FCC’s radar.  Consumers don’t have the chairman’s direct phone number.  If they did, they could argue the fact “matching price to cost” would mean a dramatic reduction in pricing for today’s unlimited broadband account.  Instead, we have a lobbying effort to end “unlimited” entirely, backed by manufactured studies funded by providers expecting pre-determined conclusions.  Too bad the FCC doesn’t read provider financial reports.

Writes McSlarrow:

Some consumers don’t see the need to go online.  Others are constrained by cost.  Still others want to use the service they have in cutting-edge ways.  And the ability to pigeonhole companies and their business plans as being one thing or another is breaking down, particularly in an environment where Internet applications, content, and services change the way we behave as consumers, provide new opportunities for providers and consumers and alter how we all interact with both traditional and new devices and features.

The key point is that that we need to focus on what best serves consumers.  With all this change, it is necessary to have the flexibility to test new business models – and perhaps new pricing plans – in order to see if they make sense.

A usage-based pricing model, for instance, might help spur adoption by price-sensitive consumers at the lower end of the socioeconomic ladder.  As Sanford Bernstein analyst Craig Moffett noted in a report issued yesterday, “{u}sage-based pricing for broadband would have profound implications.  At the low end, it would allow cable operators to introduce lower priced tiers that could boost penetration and help in efforts to serve lower income consumers.”

McSlarrow

Evidently, to chase the small percentage of Americans who either don’t have an interest in going online, or think it costs too much, the NCTA wants those already online to face Internet Overcharging schemes ranging from usage caps to metered billing.  Is it flexible for consumers who face the end of broadband pricing as they’ve lived with for more than a decade or is it flexible for providers who can run to the bank with the higher profits rationed broadband delivers?

McSlarrow quotes Moffett’s quest for higher profits for his clients — Wall Street investment banks, but ignores the implications Moffett himself admits — consumer rebellions, self-rationing of usage, a stifling of online innovation from independent companies not connected with providers, and higher prices.

American providers look north for an example of Big Telecom’s pot ‘o gold — Canadian ISPs that have managed to wreak havoc on the country’s broadband rankings, forcing consumers to live with higher prices and, in some cases, declining usage allowances.  Canada’s broadband innovation graveyard is an object lesson for Americans: usage-based pricing doesn’t deliver savings to anyone except the most casual users living under constrained speeds and paltry allowances as low a 1GB per month.  For everyone else, broadband prices are higher, speeds are slower, and usage allowances deliver stinging penalties for those who dare to exceed them.  What do Canadian providers do with all of the money they earn?  A good sum of it goes towards acquiring their competitors, further reducing an already-poor competitive marketplace.

As one Ontario reader of Broadband Reports noted, “our largest cable company has the money to buy three professional sports teams but not enough to roll out DOCSIS 3 [to all of its customers.]  Our largest phone company, Bell, has the money to buy half the news stations in Canada, but cannot seem to get users off of 3Mbps DSL service.  The whole system is a scam.”

While the rest of the world is decidedly moving away from limited-use broadband, American providers have sold Genachowski that rationing the Internet is “innovation.”

Of course, you and I know real innovation means investing some of the enormous profits providers earn back into their networks to keep up with growing demand.  Providers can innovate all they like to attract price sensitive customers, so long as current unlimited plans remain available and affordable.  But as AT&T illustrated earlier this year, the first thing off the menu is “unlimited,” replaced with overpriced and inadequate wireless data plans that only further alienate their customers.

AT&T should take a lesson… from AT&T.  While it gouges its customers on the wireless side, the company has managed to solve the affordability question all by itself, without resorting to wallet-biting.  It dramatically reduced prices on its DSL services — now just $14.95 a month for its customers, which includes a free gateway and modem.  That sure sounds like a solution for budget-conscious customers and delivered all without antagonizing those who want to keep their current unlimited service plans.

AT&T seems to have managed to solve the affordability question without overcharging their customers.

Cable companies deliver their own budget broadband plans, but it comes as no surprise they barely market them, fearing their premium-paying customers could downgrade their service.

In short, Internet Overcharging is a solution chasing a problem that simply does not exist in a responsible broadband marketplace.

McSlarrow says he’s not arguing for or against any particular model.  All he is really confident about is that the marketplace is changing and that “companies will have to adapt to that change.”

But as is too often the case, McSlarrow, his industry friends and colleagues, and Chairman Genachowski have forgotten it’s ultimately consumers who have to adapt to change, and we promise it means all-out war if providers tamper with unlimited broadband service.

The Cowardly Lion is back.

Federal Communications Commission chairman Julius Genachowski believes he has a sound legal basis to implement Net Neutrality policies to protect Internet traffic from provider interference, but has stopped considerably short of implementing his own proposed enforcement mechanisms.

Genachowski outlined his ideas to implement Net Neutrality reform in brief remarks before the Commission this morning.

“Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet,” the text of the speech says. “The record in the proceeding we’ve run over the past year, as well as history, shows that there are real risks to the Internet’s continued freedom and openness.”

Genachowski praised the progress the Internet has managed to achieve over the past decade, and said his efforts would ensure that progress could continue with a minimum of regulation.  In that spirit, Genachowski announced he would not move that the Commission re-assert its legal authority to oversee broadband by a process to reclassify the service under Title II, which governs telecommunications services.

Comcast successfully sued for repeal of the Commission’s original authority, implemented by Bush FCC chairman Michael Powell, which classified broadband as “an information service.”  A DC Circuit Court discarded the legal basis for Powell’s regulatory authority in a sweeping victory for the cable giant, which was sued for throttling down speeds for broadband customers using peer to peer applications.

Genachowski argued he has “a sound legal basis” to pursue his latest vision of Net Neutrality rules in spite of the earlier court case.  But critics doubt that and charge that the FCC chairman has capitulated to America’s largest broadband providers, including Comcast, AT&T, and Verizon.

Genachowski's view of the Internet does not meet the realities consumers face without Net Neutrality protection assuring a free and open Internet.

“By not restoring the FCC’s authority, Chairman Genachowski is unnecessarily placing his Net Neutrality agenda, and indeed his entire broadband agenda, at risk,” said Free Press executive director Josh Silver.

Boiled down, Genachowski now seeks just two major principles governing provider behavior:

1. No censorship of content.
2. Full disclosure of network management techniques so consumers know what providers are doing to their broadband connections.

Consumer groups are furious that the chairman has apparently discarded many of Net Neutrality’s most important consumer protections, and accused him of caving in to lobbyist demands and abdicating his responsibility to oversee critical broadband infrastructure.

Marvin Ammori, a cyber-activist and public interest law professor said the proposal also fell well short of meeting President Barack Obama’s repeated promises to enact strong Net Neutrality policies.

“It’s make-believe Net Neutrality,” said Ammori, who called Genachowski’s proposals “garbage” and “meaningless gestures.”

Now off the table:

A ban on Internet Overcharging schemes that allow providers to limit, throttle, or overcharge consumers who use more than an arbitrary amount of Internet usage per month. This exposes home broadband users to the same kinds of bill shock that wireless customers already experience.

A ban on using “network management” to artificially slow or block traffic the provider — at its sole discretion — determines is “harmful” or “congests” their network. Under Genachowski’s new proposal, the definition of “harmful” could be made by an engineering department on technical grounds or in an executive suite as companies ponder their financial returns. So long as they manage traffic without “unreasonable discrimination,” it’s okay with the Commission.

Built-in loopholes guarantee providers need only set rates high enough to assure only “preferred partners” can afford the asking price, and that only their competitors meet the definition of “harmful” traffic worthy of speed throttling.  The proposal also reportedly only covers video and voice traffic on wireless networks.  It’s open season on everything else if you access the web from a smartphone or wireless broadband service.

Actual legal authority to implement any broadband reform policies. It was Julius Genachowski and the FCC’s General Counsel Austin C. Schlick that argued without asserting legal authority under Title II, nothing the Commission did could be assured of withstanding a court challenge.  Yet today the chairman now claims his legal team has found some legal precedents that somehow will keep his policies in force after inevitable lawsuits are filed.  Former FCC chairman Powell thought much the same thing about his own idea of reclassifying broadband as “an information service.”  The DC Court of Appeals thought otherwise, something Schlick knows personally, having fought the Comcast case before that court.  In the end, Schlick correctly guessed his case was a train wreck, and was reduced to asking the court for legal pointers about how to draft regulations that could survive a court challenge.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/The Third Way The Future of Internet Policy in America 5-2010.flv[/flv]

This “other” Julius Genachowski from May of this year delivered remarks that carried a very different tone about the importance of restoring legal authority to oversee broadband.  But that was before AT&T put him on their speed dial, successfully reaching him personally more than a half dozen times in the last few weeks to argue their point of view.  Consumers don’t have Julius Genachowski’s phone number.  (4 minutes)

In short, Genachowski’s proposals represent near-total victory for providers, and any cable or phone company annoyed with the few scraps still on the agenda need only file suit arguing the Commission lacks the authority to stick its nose into their business affairs.  Without Title II authority in place, that lawsuit is probably going to result in a favorable ruling putting us back where we are today — with no Net Neutrality protections.  But by then, the Internet will be a very different place, loaded with toll booths from content providers and your ISP, who may ask for extra money if you want to watch Netflix or download files.  Your speeds may be reduced at any time, to any level, if a provider deems you’ve over-consumed your traffic allowance for that day, week, or month.

Worse, some providers will dispatch bills with overlimit fees that could run into the hundreds of dollars (or more) for those with a family member who left a high bandwidth application running while running out the door to catch the school bus.

Providers and their well-paid lobbyists celebrate their victory over consumers' wallets

So long as providers agree to abuse everyone more or less equally (excepting their own “preferred partners” of course), Julius Genachowski believes the next ten years of America’s online experience can be as great as the last.

In his dreams.  As Public Justice attorney Paul Bland said about dealing with ruthless companies like AT&T, assuming providers will behave favorably towards consumers puts you on the candy bridge into Rainbow Land.

Even with Genachowski’s proposed reforms, diluted to be point of being homeopathic, Republicans were moving in for the kill this morning.

Rep. Marsha Blackburn (R-Tenn.) a member of the House Energy and Commerce Committee, said she would work to topple any FCC-led Net Neutrality order.

“This is a hysterical reaction by the FCC to a hypothetical problem,” she said, adding that Genachowski “has little if any congressional support” for the action.

To overturn any order, Blackburn vowed to reintroduce her bill to prevent the FCC’s policy making process.

Robert McDowell, one of two Republican FCC commissioners, called the move to enact reforms a defiance against Congressional will.

“Minutes before midnight last night, Chairman Genachowski announced his intent to adopt sweeping regulations of Internet network management at the FCC’s open meeting on December 21. I strongly oppose this ill-advised maneuver. Such rules would upend three decades of bipartisan and international consensus that the Internet is best able to thrive in the absence of regulation,” McDowell said in a prepared statement.

All this is taking place at the same time Comcast has foreshadowed America’s future broadband experience: charging backbone provider Level 3 extra for sending Comcast customers online movies and TV shows, censored a blog run by one of its customers trying to get around Comcast’s unresponsive customer service agents, stifled innovation by independent cable modem manufacturer Zoom Modems, has achieved a fever pitch in lobbying Washington to hurry up and approve its colossal merger deal with NBC-Universal, and has a lobbying team convinced it can achieve victory on all fronts from a favorable incoming Congress.

If they and other broadband providers succeed, it’s time to get out your wallet and count your money before handing it over.  A consumer revolt is all that stands between your Internet experience today and an endless series of pay-walls and stifled speeds tomorrow.

Wendy

Pro-broadband reform groups continue to hit the telecommunications industry’s last nerve.  While the fight for more expansive broadband and Net Neutrality continues, some providers and their water-carrying friends are pulling out all the stops to keep broadband under the firm grasp of a phone and cable duopoly.  Both will say or do just about anything along the way to stop consumer-friendly reform.

Say hello to Mike Wendy.  He’s made it his personal mission to “expose” groups promoting broadband reform as “radicals” and “hardcore entrenched lobbyists.”  Using rhetoric that will resonate with angry talk radio listeners, Wendy is convinced broadband policies that enforce the public interest and Net Neutrality are akin to a Marxist takeover.  While Wendy calls on good Americans like himself to man the barricades protecting AT&T, Verizon, Comcast, and Time Warner Cable, he just doesn’t have time to mention he happens to work for a special interest group funded by Big Telecom.  Maybe it slipped his mind?

Wendy’s ironically named “Media Freedom” blog is chock full of attacks on “Free Press and the radical media reformistas [sic].”  Special guest stars include Venezuela’s Hugo Chavez, Marxism, collectivism, and a whole slew of rhetoric that ultimately tells readers efforts to enact broadband reform are little more than a grand socialist conspiracy.

A real grassroots campaign is run for and by consumers. An astroturf campaign is bought and paid for by corporate interests to push their own agenda.

His visitors’ enthusiasm for such accusations might be diminished a tad had Wendy prominently disclosed his day job: Vice President of Press & External Affairs at the Progress & Freedom Foundation, a “think tank” that ingests money from Big Telecom and then spews forth their talking points.  Among the backers: AT&T, Comcast, the National Cable and Telecommunications Association, Time Warner Cable and Verizon.

That takes the wind out of the proclamation that Media Freedom is a bulwark against those who “threaten to quash speech and economic freedoms.”  Wendy isn’t working for Big Government.  He’s working for the interests of AT&T and Comcast.

Many of the companies supporting the Progress & Freedom Foundation have a vested interest in maintaining today’s barely-competitive broadband marketplace, avoid oversight, and stop reform regulation and legislation dead in its tracks.  They want Progress only on their terms and the Freedom to do whatever they please.

The real chutzpah moment came when Wendy claimed pro-consumer groups like Free Press and Public Knowledge were the ones running high-powered lobbying campaigns.  That’s a pot to kettle moment to behold, especially considering who paid to print Wendy’s business cards.  From a recent blog post:

The “public interest” lobby makes itself out to be the tireless, country-poor underdog for the downtrodden consumer.  But don’t be fooled.  In the technology space, three such groups – Public Knowledge, Media Access Project and Free Press – have few rivals.  Their humble appearance belies their take-no-prisoners, oftentimes shameless, below-the-belt approach to public policy formation and gamesmanship.  How do they do it?  They use all the tools, and then some, to make them every bit as sophisticated as the largest companies they’re trying to undermine.

Shameless and “below-the-belt” might better define Wendy’s last job: “Director of Grassroots” for the United States Telecom Association, a job title that literally defines astroturf-in-action. Who is on the board of USTA?  Among others, corporate executives and lobbyists for AT&T, Verizon, Qwest, and two members who shouldn’t be able to afford the annual dues considering their employers went bankrupt — Hawaiian Telcom and FairPoint Communications.

Wendy’s line of thinking is evident soon enough from his blog’s tag cloud, a regular cocktail of conspiracy:

The ironically named "Media Freedom" blog isn't media and its freedom is limited to carrying water for the nation's largest telecom companies.

• Al Franken (the broadband industry’s ‘Boogie Man’)
• Cyber-Collectivist (the secret link between broadband and Jean-Jacques Rousseau)
• Fairness Doctrine (guaranteed to perk up the ears of any conservative talk radio fan wandering through)
• First Amendment (for corporations)
• Freedom (for said corporations to abuse your wallet)
• Free Speech (for corporations)
• Hugo Chavez (the go-to-guy for lazy smear-by-association rhetoric)
• Marxist (chalkboard time)
• New Deal (broadband users sure want one)
• … and redistributionism (something overheard at the last session of the “Communications Comintern?”)

The rhetoric is two parts AT&T to one part 1970s Radio Tirana, Albania.  A Glenn Beck swizzle stick labeled “Marxism” is included to stir the overheated rhetoric into a hot mess for Verizon and the cable lobby.

All of the “isms” aside, we’ve created a convenient, handy-dandy chart you can use to see which team Wendy and his group really supports:

Distinctions With a Difference – A Telecommunications Issue Checklist

Phillip Dampier to Chairman Genachowski - Don't Be Verizon's Sucker

Julius Genachowski was played.

The chairman of the Federal Communications Commission hopefully just learned a valuable lesson about the corporations he’s dealing with.  Big telecom companies will be your friend and working partner until they get close enough to stick you with their knives.

Genachowski got it right in the back, betrayed by the companies he shepherded into secret backroom talks, ostensibly to find a non-regulatory solution to Net Neutrality.  While talks were underway, a few major players were quietly stalling for time to construct their own “private agreement” on Net Neutrality, threatening to up end the FCC’s Net Neutrality agenda into the toilet.  The rest were never really interested in anything less than total capitulation on the concept of Net Neutrality (I’m talking to you, AT&T).

And the merry-go-round goes round and round….

The FCC chairman was outmaneuvered from day one, even as he was willing to ignore his biggest supporters who believed he was honest about an open, pro-consumer FCC.

Stop the Cap! reader Dave noted the secret backroom talks between the bully boys and the FCC chairman’s chief of staff Ed Lazarus had collapsed late last week.  Extraordinary pressure from ordinary Americans helped torpedo those talks, as did the realization some of the participants were dealing behind the backs of their hosts.

Now that Verizon and Google have accomplished their Judas moment, the chairman of the FCC is just a tad angry in the papers:

“Any deal that doesn’t preserve the freedom and openness of the internet for consumers and entrepreneurs will be unacceptable,” Genachowski said at a recent press conference.

Some of Genachowski’s allies at the FCC hinted they were hardly surprised at the developments.

Commissioner Michael J. Copps has been around long enough to know better.  He was skeptical negotiations would deliver more than lip service and he was right.  With today’s announcement of a partnership on policy between Google and Verizon, Copps remained unimpressed, and issued a terse reaction:

“Some will claim this announcement moves the discussion forward. That’s one of its many problems. It is time to move a decision forward—a decision to reassert FCC authority over broadband telecommunications, to guarantee an open Internet now and forever, and to put the interests of consumers in front of the interests of giant corporations.”

Maybe it’s time for Chairman Genachowski to listen more to fellow commissioners like Mr. Copps and less time trying to negotiate with Verizon and AT&T.

It’s near impossible to find a consumer group not on big telecom’s payroll that likes any of these recent developments.  Their consistent message — stop trusting big corporations with America’s Internet future.  Do your job, stand up for Net Neutrality, and don’t cave in.

Public Knowledge: Google Sold You Out

Since late last year, we’ve been pushing the Federal Communications Commission (FCC) to place its authority to protect broadband consumers on firm legal ground. But faced with pressure from the largest cable and telephone companies, the agency has failed to act. Who is filling the void left by the FCC? Some of the world’s largest corporations.

Late last week, news broke that a traffic management agreement had been reached between Google and Verizon. This agreement would, among other things, allow Verizon to prioritize applications and content at whim over its mobile broadband network. In the absence of clear FCC authority, we can expect to see more deals like this in the near term. The largest telephone and cable companies and the largest web companies will carve up the Internet as they see fit, deciding who gets access to the Internet’s fast lane while the rest of us are stuck in the slow lane.

We’ve reached a critical crossroads—the time for FCC action is NOW. Private negotiations with industry players have failed. Public concern has reached a fever pitch. And some of the largest corporations on the web are lining up to put an end to the open Internet as we know it. The course of action couldn’t be more clear: the FCC needs to do the right thing and protect broadband users.

Free Press: Google – Don’t Be Evil

“Google and Verizon can try all they want to disguise this deal as a reasonable path forward, but the simple fact is this framework, if embraced by Congress and the Federal Communications Commission, would transform the free and open Internet into a closed platform like cable television. This is much worse than a business arrangement between two companies. It’s a signed-sealed-and-delivered policy framework with giant loopholes that blesses the carving up of the Internet for a few deep-pocketed Internet companies and carriers.

“If codified, this arrangement will lead to toll booths on the information superhighway. It will lead to outright blocking of applications and content on increasingly popular wireless platforms. It would give companies like Verizon, Comcast and AT&T the right to decide which content will move fast and which should be slowed down. And it will destroy the open Internet as a platform for small business innovation and job creation, cementing companies’, like Google’s, dominant market power online.

“Still worse, this deal proposes to keep the FCC from making rules at all. Instead of an even playing field for everyone, it proposes taking up complaints on a case-by-case basis, or even leaving it up to third-party industry groups to decide what the rules should be. The only good news is that neither of these companies is actually in charge of writing the rules that govern the future of the Internet. That is supposed to be the job of our leaders in Washington.

“Congress and the FCC should reject Verizon and Google’s plans to carve up the Internet for the private benefit of deep-pocketed special interests, and move forward with policies that preserve the open Internet for all. This begins with the FCC reasserting its authority over broadband to ensure it can protect the open Internet and promote universal access to affordable, world-class quality broadband.

“The Internet is one of our nation’s most important resources, and policymakers everywhere should recognize that the future of our innovation economy is far too important to be decided by a backroom deal between industry giants.” — Free Press Political Adviser Joel Kelsey (See more here.)

Newspapers  Say ‘Enough is Enough’

The San Francisco Chronicle

[…]Public interest and consumer groups didn’t feel like they had much of a say in the commission’s discussions, and they surely won’t feel like they had much of a say in whatever proposal Google and Verizon bring to the table. This is a huge problem – the future of the Internet belongs to the public, not just a few companies.

The ideal solution would be for Congress to step in and provide a framework for net neutrality – preferably one that keeps the public interest at heart, not the demands of dominant Internet companies and carriers.

That’s what the commission would prefer. It’s considering getting around the breakdown in negotiations by reclassifying broadband under a more heavily regulated part of telecommunications law, but the large cable and telephone companies will almost certainly sue. Congressional action would prevent this ugly scenario and its uncertain outcome.

And any proposal that Google and Verizon come up with will have to be approved by Congress. It would certainly serve the public interest better if Congress gathered input from more than just two companies and created a proposal of its own.

Unfortunately, Congress hasn’t shown much appetite for net neutrality legislation in the past, and we’re not optimistic about the near-term future. So it’s time for the commission to do the right thing and reclassify broadband.

Yes, that will mean lawsuits. It will mean that net neutrality has a precarious future. But it has a precarious future right now, and the public can’t afford to wait.

The Los Angeles Times

[…]Genachowski is right about the need for enforceable rules that prevent broadband providers from blocking or slowing access to websites and services they don’t favor. So far there have been only a few such incidents on DSL and cable-modem networks. But Internet service providers are itching to create a toll lane to deliver content and services from companies that have the resources to pay for better access to consumers. If that toll lane crowds out the free and open Internet that’s been a breeding ground for innovation and creativity, the whole economy will suffer.

[…]A major problem for the commission is that its authority to adopt such rules isn’t clear. Genachowski had hoped that the talks with Internet service providers and Web companies would yield a consensus on a bill Congress could quickly pass to grant the FCC clear but limited authority over broadband access. The breakdown of those talks complicates matters, and suggests that Genachowski may have to rethink his plan to enforce Net neutrality by bringing 21st century broadband providers under rules originally designed for 20th century telephone services. Whatever route it takes, though, the commission should move now.

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/Young Turks – Google Verizon Killing Net Neutrality 8-9-10.flv[/flv]

Cenk Uygur of The Young Turks show explains the implications of Google & Verizon’s deal for both progressives and conservatives if big corporations get to take control of America’s Internet.  (6 minutes)

Phillip "Will Wait for it to Hit Netflix" Dampier

Hollywood studios have a proposition to make.

How would you like to gain access to the latest Hollywood releases on your cable, satellite, or broadband connection even while those movies are still playing in area theaters?

The Motion Picture Association of America says it’s willing to let you watch first-run Hollywood blockbusters from home, but in return, they want the right to control what you can do with your television set.

Time’s up for you to make up your mind.  The Federal Communications Commission has decided you were going to say “yes” to this proposition anyway, so they went ahead and approved it on your behalf.

Specifically, the MPAA appealed to the Federal Communications Commission to get approval for its proposed Selectable Output Control technology.  You probably never heard of that, but the concept actually has been around for a few years now.  When movie studios float trial balloons about enabling the technology, public interest and consumer groups start hollering and it typically gets shelved for awhile.  Not this time.

While the public policy debate continued, chances are the manufacturer of your television set or monitor manufactured after 2004 has probably already included some support for SOC — just waiting to hand over control of your television to Hollywood studios, cable, satellite, or IPTV companies.  On May 7th, while we were debating Net Neutrality, the FCC released its order approving the Hollywood Remote Control Confiscation Act (my name sounds far better than the FCC’s — Petition for Waiver of the Commission’s Prohibition on the Use of Selectable Output Control.)

Here’s how it works:

Let’s say your cable company wants to offer you Iron Man II through pay-per-view starting today.  It’s a movie currently playing in many theaters nationwide.  The MPAA believes there is compelling demand among the elderly, the home-bound, and the too-lazy-to-haul-themselves-to-the-Movieplex to make it available in the comfort of your own home on early pay per view.  However, Hollywood and your local cable company don’t want you making copies of the movie to hand out to all your friends.  With SOC technology, that becomes less of a problem because the cable company can selectively disable the outputs on the back of your television that don’t use copy control technology.  That means old fashioned analog outputs can be disabled for up to 90 days during SOC-enabled programming, making sure you cannot record any of the content without the approval of the studio or your cable company.

Is it worth losing control of your television to watch Iron Man 2 before it arrives on DVD?

Certain digital outputs will still function, as long as they support robust anti-recording/copying technology.  No more time-shifting SOC-protected content on digital video recorders to watch later, no more analog VCR taping of shows the industry doesn’t believe you have a right to record anyway.

For decades, Americans have fought for fair use rights that permit home recording and copying for personal use.  The entertainment industry has never fully accepted that, and have eroded away the ability for consumers to make legitimate personal use of content they have already purchased with digital rights management schemes, copy protection, region coding, and other limiting technologies.

SOC technology effectively forfeits all of your rights.  The only consumer protection the FCC provides is a requirement that your cable, satellite, or broadband provider warn you when they are employing SOC anti-recording technology.  At least you’ll know when your home recording rights are being trampled.

If your television set doesn’t have support for SOC built-in, the FCC just made your television set obsolete.  Write and thank them.  While initial deployment of SOC is only expected to be used for “early pay per view,” don’t believe for a moment such powerful controlling technology available to entertainment companies won’t be used in the future for other types of content they don’t want you recording.  Premium movie channels like HBO or Cinemax would be obvious examples.  TV networks that would like to sell you their network shows on DVD or through online services might find it worth their while to disable your ability to record your favorite shows.  If you don’t have an SOC-capable set, it’s likely you won’t be able to access protected programming at all.

With the ongoing convergence of broadband, television, and other forms of home entertainment distribution, SOC is a foot in the door to permit third parties to make decisions about how you can view or use content you’ve already paid to receive.  That’s a bad precedent.  The FCC approval of this gift to the entertainment industry is a travesty that needs to be reversed.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/KCTV Kansas City FCC Ruling Could Bring New Movies Into Homes 5-16-10.flv[/flv]

KCTV-TV in Kansas City ignored the consumer’s loss of control over their own television set to focus instead on the implications for theater owners, who may become natural allies with consumers in opposition of SOC.  (1 minute)

[flv]http://www.phillipdampier.com/video/Public Knowledge – Selectable Output Control.flv[/flv]

Public Knowledge developed this web-ready video that takes a less formal look at SOC and its impact on your consumer rights.  (3 minutes)