regulation – Antenna Responses to Media and Culture Thu, 30 Mar 2017 23:48:47 +0000 en-US hourly 1 What to Make of the Historic Net Neutrality Win Wed, 11 Mar 2015 14:20:19 +0000  

Tom Wheeler, Jessica Rosenworcel, Jessica RosenworcelThe FCC has done what even a few months ago seemed to most totally unthinkable: they delivered real net neutrality policy, putting in place strong regulations to protect fairness in internet access. After a decade-long policy battle, net neutrality advocates got nearly everything we’ve been calling for: clear-cut Open Internet rules that prohibit broadband network operators from blocking, throttling, or prioritizing internet content and services, that apply to both wired and wireless networks, and— the most wonky, yet most important, point— are based in Title II of the Communications Act. In other words, the FCC can now stop broadband providers from restricting your internet traffic or charging extra for exclusive internet “fast lanes,” whether your connection is to a personal computer or a mobile device, all rooted in a long-standing regulatory tradition of “common carriage” that protects openness and equality for essential two-way communications infrastructure. (For more details, you can check out my previous coverage of net neutrality here on Antenna, where I’ve written about the importance of Title II and the politics of policy that led to this point. For more on what net neutrality even is, you can check out my explainer for the Media Industries Project.)

Overall, the FCC’s new Open Internet rules represent a major come-from-behind victory for net neutrality advocates and a significant achievement for more democratic communications in the US. So, what should we make of this landmark FCC decision? How in the world did this actually get done? And what exactly happens now? Let me mention a couple of quick points along these lines.

The first and perhaps most important point is that a resilient social movement succeeded in getting a meaningful progressive victory in communications policy— an affirmative victory to enact good policy, not a defensive victory to stop bad policy. This success came even on a seemingly arcane and technical regulatory issue of invisible infrastructure, within a policy arena where corporate discourse and dollars dominate. I’ve spent the last eight years following net neutrality and, while I remained cautiously (if, as many told me, irrationally) optimistic throughout that it could get successfully put into policy, even I have to admit that it was quite a long shot to get rules this good from the FCC. Net neutrality policy has a long history of half-steps forward and large tumbles backwards, on a policymaking playing field heavily tilted in favor of the large corporations that set the terms of engagement there. Nonetheless, a strong coalition of media reform and civil rights activists, legal and technologist advocates, and online creators and startups pushed net neutrality forward in the policy sphere and the public sphere. They mobilized millions of citizens to engage with the FCC in its Open Internet proceeding— a powerful popular force in support of net neutrality that made it more than good policy, but also good politics. Some cynical defeatists are content to ignore the real difference made by everyday people’s voices and actions, instead emphasizing the role of the tech industry in lobbying for net neutrality in service of its economic interests. This perspective is not only demeaning and disempowering in terms of activist strategy, but also not very accurate: Google, Amazon, and other tech heavy-hitters mostly sat it out this time around, while smaller outsider tech firms (the likes of Etsy and Kickstarter don’t exactly have much sway inside the Beltway) worked better with the activist coalition.

The second point is this: even though this is a historic victory that should be celebrated, the fight is far from over. This is true in an immediate sense of challenges to the Open Internet rules. Broadband network operators and their allies in Congress are already seeking to block the new rules. The FCC will also surely be sued as soon as the Open Internet rules go into effect, kicking off yet another long legal battle over the agency’s ability to regulate internet infrastructure. It’s worth noting, though, that Comcast and AT&T both have potential mergers being considered by the FCC currently and Verizon’s appeal of the much weaker 2010 Open Internet rules backfired pretty bad on them, making theses corporations perhaps a bit more lawsuit gun-shy than usual (the cable and wireless lobbies look most likely to sue). Regardless, because this time the Open Internet rules are built on the strong and appropriate statutory foundation of Title II, we can be confident that the rules will stand up in court.

But the fight is also not over in a bigger picture sense: as consequential a victory as this is, it is ultimately just one step on a longer journey toward more equitable media structures. On the internet infrastructure front alone, there is much more to be done to ensure faster, more affordable, more inclusive broadband network access (although the other FCC action that same day— to overrule state restrictions on municipal broadband networks— opens a door toward a more promising future of public internet infrastructure for more cities). Having net neutrality meaningfully enshrined in communications regulations, and having FCC policy moving toward treatment of internet access as an essential utility, is huge, but net neutrality has proven a resonant discourse that can speak to critical social justice goals and can be employed more widely. Net neutrality could ultimately end up most historically significant, then, for the powerful discourse and movement that advocates put together around it— if we can build on this success and use this momentum to push forward for more victories like this one.


“Hope” for Net Neutrality? Thu, 13 Nov 2014 15:00:36 +0000 On Monday, one more voice was added to the millions that have already urged the FCC to protect net neutrality (the standard that all users and uses of the internet should receive equal treatment from network operators like Comcast, Verizon, and AT&T). This comment was particularly notable, though: it came from President Obama.

Obama’s statement calling on the FCC to implement the strongest possible net neutrality regulations in its Open Internet policy proceeding is significant for many reasons: how unusual it is for a sitting president to dive so deep into the weeds of communications regulation, the influence it can have on the policy the FCC actually adopts, and (amazingly) just how right on the President is in his plan. Obama’s net neutrality statement is also especially important, though, for what it signals about the politics of media policy: a legitimate social movement is pushing for fairness and equality in internet access by engaging in historically corporate-dominated policymaking processes and strategically “boring” regulatory discourses to successfully bring undoubtedly arcane yet crucially political media policy issues to the front and center of the national political stage. Simply put, the President wouldn’t jump this far into this fight with powerful phone and cable corporations and their allies in the incoming Republican-controlled Congress (and perhaps even the FCC Chairman he appointed) if it weren’t for wide public pressure to act boldly on net neutrality. The FCC is an independent agency that doesn’t have to answer to the President, so it remains to be seen if any of this is enough to shift the Commission’s current direction in Open Internet rule-making— right now toward a (likely untenable) attempt at compromise through a “hybrid approach”— but at the least it is heartening to see such prominent attention to obscure issues like paid prioritization (known as internet “fast lanes”) and Title II reclassification (somewhat misleadingly being called “utility regulation”).

15003287537_b16bdc6d26_zIn Obama’s statement, he surprised nearly everyone by laying out in unambiguous terms an Open Internet policy plan that would deliver pretty much exactly what most net neutrality advocates (myself included) have seen as what has been needed all along: a clear-cut set of rules against blocking and discrimination that apply to both wired and wireless broadband providers and prohibit paid prioritization “fast lane” deals with online content providers, all based in a “common carriage” regulatory framework with legal authority from Title II of the Communications Act. (Yes, this is the super nerdy, but now increasingly central, terrain on which this battle is being fought!) This is a stronger set of rules than those proposed by FCC Chairman Tom Wheeler this past spring and the rules that were previously adopted by the FCC in 2010 but struck down in court in January. As I explained in a post here in the aftermath of that case, the reason why the 2010 rules failed in court (and in enforcement) is that they were not implemented with appropriate legal authority to regulate openness and equal access and if the FCC wants to move forward with meaningful and sustainable net neutrality policy, it has to reclassify broadband. What the Commission needs to do— as called for by advocates for strong net neutrality, now including the President— is to implement Open Internet rules through Title II, where the Commission has authority to regulate essential infrastructure for two-way communications (which internet access clearly is).

This traction in the political debate around net neutrality comes as a result of a popular movement that has seen nearly 4 million public comments to the FCC’s Open Internet proceeding (a record-breaking total, of which up to 99% were in favor of net neutrality), protests and demonstrations both online (like the Internet Slowdown Day) and offline (like occupations of the FCC building and even Chairman Wheeler’s driveway), and John Oliver’s tour-de-force explanation and call to action. All of the public participation in the process (just like the President’s) may not even count for much to the FCC, but it has worked to shift the discursive terrain of the issue and, therefore, the range of possible policy action. Chairman Wheeler has backed away from his initial weak proposal and is now hinting toward wireless broadband regulations and at least partial reclassification.

Right now, though, the FCC is stalling while it decides what to do and its next move will come no sooner than 2015. For passing strong Open Internet protections, Wheeler has the votes at the Commission (with two pro-net-neutrality Democratic commissioners to make a majority with him) and now political support from President, but he may be waiting for more backup from the bigger tech industry players like Google and Facebook, which have been conspicuously quiet in this round of the fight. Strong public pressure will continue to be key to keep up this progress toward meaningful net neutrality policy.


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Net Neutrality is Over— Unless You Want It Fri, 17 Jan 2014 15:27:01 +0000 series_of_tubesOn Tuesday, the DC Circuit Court of Appeals tore out the heart of net neutrality. In the landmark Verizon v. FCC decision, the court struck down the FCC’s Open Internet rules— the hard-fought regulations passed in 2010 that prohibited broadband providers from blocking or discriminating against internet traffic. Without these protections, network operators like Verizon are legally empowered to not only interfere with the online activities of their users but alter the fundamental structure of the internet and change the terms on which users communicate and connect online. The court threw out the no-blocking and nondiscrimination rules but left intact the transparency provision, so now the company you pay to get on the internet can mess with your traffic as much as it wants, as long as it tells you so. The ruling is not a surprise, but not because the Open Internet rules were not legitimate or net neutrality is a bad idea. It comes down to this: broadband providers are common carriers but the FCC can’t regulate them as common carriers because they didn’t call them common carriers. (I’ll explain in a second.) So if we want net neutrality, what should we do? Well, tell the FCC to call broadband providers common carriers. It really is that simple— not easy, but simple.

First, what’s actually at stake here? Well, the end of the open public internet and the beginning of separate but unequal private internets, under the control of the giant phone and cable companies in possession of the pipes and airwaves we depend upon for access. The FCC’s Open Internet rules left much to be desired but they were minimum protections to count on and a significant beachhead in the net neutrality battle. Without them, what do we get now? A network where Verizon can charge extra to prioritize traffic and block any service that refuses to pay a toll to reach its users (that’s what it said it would do if it won this case). A network where Comcast can derail video distribution that threatens its cable television business (that’s what it did when it blocked BitTorrent and what it does in favoring its Xfinity service— even though it’s obligated to abide by net neutrality until 2017 as a condition of its merger with NBC-U). A network where AT&T can cut deals with the biggest content providers to exempt their apps from counting against monthly data caps but squeeze out the innovative startups that can’t afford to pay (which it just announced last week with its new Sponsored Data plans). Networks — with pay-to-play arrangements, exclusive fast lanes, unfair competition, and prepackaged access tiers— where that independently-produced web video series, that nonprofit alternative news site, or your own blog are left behind in favor of those that can pay protection money to network operators. In other words, a network that is not the internet as we’ve come to know it— an open network where users can be participants in the creation and circulation of online culture, rather than a closed content delivery system for corporate media. While net neutrality proponents’ rhetoric might seem a bit overblown, we are much closer to a “nightmare scenario” than most realize.

The DC Circuit’s ruling was not against net neutrality itself, but rather the twisted way the FCC attempted to enforce it. The majority opinion actually went out of its way to describe why net neutrality regulations are necessary to curb abuses of power by network operators. It ruled that the Open Internet rules themselves were sound— they were just implemented the wrong way. Coming into the case, the FCC’s authority to regulate broadband at all was in doubt, after the agency was handed its hat by the same court in the 2010 Comcast case. The FCC tried it again this time with a slightly different tack (“even federal agencies are entitled to a little pride,” the majority wrote— federal appeals court humor, folks) and, amazingly, the court bought it this time around (while Verizon called the FCC’s argument a “triple-cushion-shot,” the judges pointed out that in billiards it doesn’t matter how much of a stretch the shot is if you actually make it). However, even though the court affirmed the FCC’s legal ability to regulate broadband, it found that it can’t regulate it the way the Commission wanted to in the Open Internet rules.

The court ruled that the FCC’s net neutrality policy treated broadband providers as common carriers, but that it couldn’t do that because it didn’t have those services classified in the common carriage portion of its legal framework. Basically, it all goes back to the FCC using the term “information service” rather than “telecommunications service” to define broadband starting in 2002. That’s it— this is a case where the importance of discourse, and the power to dominate discourse in the policy sphere, could not be more plain.

Net neutrality is essentially an update to common carriage, the centuries-old principle of openness and nondiscrimination on publicly essential infrastructure for communication and transportation. The FCC has regulated general purpose networks of two-way communication as common carriers since its inception with the 1934 Communications Act (at that time the focus was telephone service). Beginning in the 1980s as part of its influential Computer Inquiries and legally formalized in the 1996 Telecommunications Act, the FCC distinguishes between these basic networks, defined as Title II “telecommunication services” (think pipes), and the content made available over those networks, defined as Title I “information services” (think water flowing inside those pipes). Under this framework, the FCC regulated internet access (the connectivity) as common carriage to ensure equality and universality, but could not regulate the internet itself (the content). As telecommunications services, internet access providers’ job is to pass communications back and forth to the internet, while the information services on the internet are publishers with editorial rights to control content. This all changed during a deregulatory binge at the FCC in the 2000s: cable companies called their broadband connections “information services” (pay no attention to their actual cables), conspicuously not subject to regulation, and then-FCC-Chairman Michael Powell was happy to define broadband that way, too (he’s now the head of the NCTA, the cable industry’s trade group, by the way).

Now, because broadband internet access is not classified as “telecommunications,” it cannot be regulated as common carriage. This means that, as the DC Circuit recognized, since net neutrality is basically common carriage, it cannot be implemented as long as broadband is still defined as an “information service.” So, even though broadband is now the essential general purpose communications infrastructure of our time, there can be no openness and nondiscrimination protections for it until the FCC is willing to change the label it has applied to it in its regulatory terminology. The answer, then, is reclassification: the FCC just needs to call broadband the telecommunications service that it is before we can have enforceable net neutrality policy. The policy really is that simple— it’s the politics that are difficult. The reason that the FCC built the Open Internet rules on legal quicksand is that it lacked the political will to go through with its reclassification proposal amidst a firestorm of pressure from the telecom industry and its allies in Washington.

If we want net neutrality, we should put our own pressure on the FCC. We don’t have the money and the lobbyists that the telecom industry does and we can’t count on the clout of any big corporations whose interests overlap with the public’s on the issue— Google already sold out to Verizon and other big online content providers are now backing away from it (the Amazons and Facebooks of the world have deep enough pockets to dominate the payola market of the future, so they seem willing to play ball at this point). It’s up to us, then, to push the FCC to do net neutrality right this time.


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Les Brown: Thinking Inside the Box Wed, 27 Nov 2013 15:00:52 +0000 les-brown-journalist-400x600

By the time Les Brown published his first Encyclopedia of Television in 1978, he was already worthy of an entry of his own.

Brown, who died Nov. 4 at the age of 84, was still an editor at Variety, the show business daily, when he published Televi$ion: The Business Behind the Box in 1971. Coverage of TV at that time was largely a matter of day-after reviews, programming announcements and celebrity puff pieces. Television was treated as something magical and mysterious, as if those “free” programs just appeared out of thin air like electronic manna.

Expanding on his nearly two decades covering radio and TV for the trade publication, Brown lifted the veil on network television, using a watershed year in the life of CBS’s programming division to illuminate the scheduling chess game and the astounding amounts of money involved.

“The business of television,” Brown wrote, “is to deliver audiences to advertisers.”

The observation may seem obvious today, but at the time the notion that programs weren’t television’s products but rather its lures, was a revelation to the millions watching the “big three” networks every day.

Along with Horace Newcomb’s 1974 TV: The Most Popular Art, which dared to take entertainment programming seriously, The Business Behind the Box became an inspiration and essential guide for a new generation of television critics and reporters that asked tougher questions about the medium’s impact and social responsibility.

Brown’s encyclopedias provided succinct, clear explanations of the networks’ histories, key players, technical terms and slang, and became a crucial reference for reporters covering the TV beat, for scholars and for any couch potato who was curious about how and why the television industry worked as it did.


Ron Simon, a curator at the Paley Center for Media in New York, called Brown a pioneering television scholar.

“The several editions of his Encyclopedia of Television were essential reading to understand the sweep of media history,” Simon said. “His Channels magazine charted the impact of the cable revolution, showing all the forces at work creating a new type of TV. Les Brown, as well as any media historian, documented all the forces at work that resulted in our TV programming: creative, business, and regulatory. He shared his wisdom at many conferences around the world, especially the Paley Center.”

In 1982, Brown launched the magazine Channels of Communication (later just Channels). Unlike TV Guide, which served mainly as a program guide, and Broadcasting, which was more concerned with hirings, firings and bottom lines, Channels took an analytical approach to broadcast television’s strategies, trends, profitability and ethics.

Brown served as a Peabody Awards board member from 1982 to 1988. Newcomb, whose board tenure overlapped Brown’s by a year, recalled that he “made everyone think twice — or more — about their judgments of the media, and Peabody was strengthened by his own strong arguments.”

Newcomb, who retired last summer as Peabody director, also called Brown “a giant among television commentators in the formative years of the medium.  He was a fierce critic in the best sense of the term, always concerned with what television meant for the society at large.”

In later years, Brown taught at Yale, Columbia and Fordham universities. But his lasting legacy is the approach to reporting and critiquing television that his books exemplified.

As Variety co-editor-in-chief Cynthia Littleton tweeted upon hearing of Brown’s passing, Televi$ion: The Business Behind the Box “remains required reading.”




Why Verizon v. FCC Matters for Net Neutrality— and Why It Doesn’t Fri, 06 Sep 2013 12:00:42 +0000 internet_openThe battle over net neutrality (the vital principle that internet access providers should not interfere with what users do online) is heating back up. The FCC’s 2010 Open Internet rules ostensibly established net neutrality principles in policy (we’ll get to how effective it has actually been in practice…) but Verizon has been seeking to overturn the regulations. On Monday, September 9, the DC Circuit Court will hear oral arguments in Verizon v. FCC, focused on whether the FCC has the legal authority to implement the Open Internet rules.

This post will give you some background on the Verizon case and what’s at stake in it. Whether the FCC’s Open Internet rules stand or not is pivotal for net neutrality and the future of the internet— but also isn’t. While net neutrality protections are essential for internet users, the FCC’s Open Internet rules in particular are quite problematic. In some ways net neutrality would be better with these rules and in some ways could be better without them.

Here’s why Verizon v. FCC matters:

1. The rules prohibit the most egregious net neutrality violations. The FCC’s Open Internet rules are based in a deeply compromised version of net neutrality and are far from the strongest protections we could hope for (they were essentially written by Google and— ironically enough— Verizon). In spite of this, though, they are definitely better than nothing. The Open Internet rules bar wired internet access providers from blocking online content, services, applications, and devices or unreasonably discriminating in internet traffic. For instance, this stops Comcast from making disappear from your browser (or redirecting it to for that matter) and from throttling Netflix’s video streams. The Open Internet rules can be actually stronger than they immediately appear and have potential to be robust safeguards if enforced by the FCC properly.

2. The rules are an important foothold against total deregulation. Underlying the fight over the Open Internet rules is whether the FCC can regulate broadband at all. During a wave of deregulation in the 2000s, the FCC removed almost all of its oversight for internet access and now the agency is left with a shaky legal foundation for the Open Internet rules— what Verizon asserts is not enough authority. The Open Internet rules are important, then, because striking them down would eliminate virtually the last remaining public interest protections for internet access. Beyond that, though, if the courts buy Verizon’s argument in its Open Internet challenge, it would set a very troubling precedent for enforcing net neutrality in policy: the telecom operator says that it has a First Amendment right to “edit” the internet as it sees fit. If the free speech rights of “corporate persons” are allowed to trump the free speech rights of actual people, it doesn’t bode well for the future of the online public sphere.

And here’s why Verizon v. FCC doesn’t matter:

1. The rules haven’t been very effective. Even if the Open Internet rules are allowed to stand, they’re weak enough to allow a lot of net neutrality violations anyway— and for just the sort of activities especially key to the future of the internet. Most glaringly, most of the rules don’t even apply to mobile broadband (which is poised to soon become the dominant means to access the internet and already is primary among the underprivileged). This is why we see AT&T allowed to block FaceTime on the iPhone. Further, the rules don’t apply to “specialized services” (such as IPTV or any other managed service a network operator provides over broadband that isn’t regular internet access). Comcast calls Xfinity a “specialized service,” supposedly separate from the “public internet,” so it’s allowed to favor its own video streaming service by not counting Xfinity-on-Xbox traffic against users’ data caps. In other words, there are many net neutrality abuses not covered by the Open Internet rules.

2. Overturning the rules could actually lead to getting better ones. Paradoxically, there is a possibility that having the Open Internet rules struck down could be for the best in the long run— blowing up the whole thing and starting from scratch may be the only way to get truly effective net neutrality policy. Specifically, if the courts find that the FCC did in fact deregulate itself into oblivion and no longer has any statutory authority to address broadband, the agency could be forced to re-regulate broadband if it wants to actually remain relevant. (To get policy wonky: what the FCC needs to do is reclassify broadband as a “telecommunications service” under Title II of the Communications Act, where it has more authority to implement “common carriage”-based rules like net neutrality than on Title I “information services” where broadband is now). Counting on this outcome is very risky, though, because it’s impossible to know what the FCC will be like under incoming Chairman Tom Wheeler (an enigmatic figure who has inspired both hope and disgust from public interest advocates).

So, protecting net neutrality isn’t as simple as just upholding the FCC’s Open Internet rules— net neutrality could be better off with or without them. It really depends more on what the FCC does— and, crucially, what we as citizens push them to do— after Verizon v. FCC.


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Aereo and “Free” Broadcasting Thu, 18 Apr 2013 14:00:59 +0000 Aereo logoBroadcast networks Fox, ABC, Univision, along with PBS, are suing Aereo, a service that retransmits broadcast signals to paying subscribers over the internet, for copyright infringement. Such suits are regularly deployed by legacy industries against emerging technologies (Napster, VCRs, CATV, radio, player pianos) desperate to protect their old distribution systems and business models.

Setting aside the question of the viability of the broadcasters’ legal case, as well as the question of how useful Aereo might be for audiences, I’d like to consider the larger historical context of the broadcasters’ objections to Aereo. How might this case reflect how broadcasters are revising their commitment to “free” over-the-air (OTA) broadcasting? And how might this case reveal something about the shifting business models of OTA broadcasting, historically reliant solely on advertising revenues?

As other scholars have noted, proponents of advertising-supported U.S. broadcasting have since its origins in the 1920s-30s identified commercialism with freedom, both economic and political. Broadcasters get free spectrum, and the public gets programming free of cost to themselves and free from government control. They pay only with their attention to advertisers’ messages, attention organized and sold by broadcasters to advertisers. To address the criticism that a public resource, the spectrum, is being used for private gain, lawmakers require stations to serve the “public interest, convenience, and necessity”–a slight limitation on broadcasters’ First Amendment rights.

For nearly a century, competition to OTA has been regularly characterized not as a threat to broadcasters’ oligopoly but to “free” broadcasting and American liberty. For example, William Benton’s effort to create a subscription wired audio programming service (an early version of Muzak) was attacked for undermining “free” broadcasting, for attempting to impose a “tax” on listeners. Until 1977 or so, broadcasters prevented competition from cable television services by prevailing on the FCC to ban the importation of distant signals–an effort that, although it was actually designed to secure broadcasters’ oligopolistic control, was dressed up as the preservation of “free” programming from the threat of “pay TV.

Today only about 10 percent of US households receive free OTA broadcasts. Most subscribe to multichannel video program distributors (cable operators, telcos, DBS, collectively known as MVPDs) and pay for the privilege of choosing among hundreds of program providers (most of which also carry advertising). After many court battles, some over copyright, others over the First Amendment, and many regulatory changes, the television industry has integrated broadcasting and cable networking in such a way as to allow the traditional OTA networks (ABC, CBS, NBC, Fox, CW) to receive a share of MVPD subscription revenues, known as retransmission consent (operators must compensate broadcasters for the retransmission of broadcast signals). These fees, as many have pointed out, are at stake if a disruptor like Aereo does not pay them to OTA networks.

When NewsCorp COO Chase Carey claims that, “Aereo is stealing our signal,” he ignores the fact the signal is still free to individual households (Aereo’s “theft” is based on a theory of “public performance”; Aereo claims its retransmission is a private performance). The exemption from fees, which in past eras was used to justify the ad-supported business model, is fading from memory: the industry now expects that audiences must pay. Since 85-87% of households do pay for television, the industry wants to believe this will remain the norm. However, over the top (OTT) services, such as Netflix, are providing options for cord cutters, “cord nevers,” and zero-TV households to opt out of the pay-TV bundles. (As broadband providers, the MVPDs are less endangered by this shift than the TV networks are.)

Carey’s threat to cut off Fox’s OTA signal and make the network available only through a MVPD subscription also indicates that many in the industry may be ready to discard the network/affiliate model of distribution. The technological need to use affiliates to retransmit network feeds has long since ended. Leaving the “free” broadcast spectrum would allow Fox to program without the onus of serving the public interest. Most view this threat as saber rattling, but it may be logical from both technological and economic perspectives: why continue to share retransmission fees with affiliates when Fox doesn’t need local stations or spectrum for national distribution?

Rather than embrace Aereo as a way to expand viewership (especially among cord cutters and cord nevers) and thus raise advertising airtime prices, broadcasters seem to be caught up in the fantasy that they are owed money for their transmissions–despite their continuing use of free public spectrum. Instead of relying on ad revenues fully to subsidize their programming, as they have for decades, broadcast networks today are expecting retransmission fees to become a greater percentage of their revenues (from about $2B/year to perhaps $6/B). Instead of embracing the possibilities of emerging business models, some of which rely on giving content away for free and so resemble the legacy broadcast business model, these broadcast networks are apparently throwing in their lot with the closed MVPD oligopolies, counting on retransmission fees to carry them, despite signs of consumer demand for alternate business models.

So, is the broadcasting business model dead if it is no longer “free” to most audiences and can no longer justify itself as promoting freedom and democracy as a uniquely “American system”? Should broadcasters be reminded that “free” programming is exactly what they are supposed to provide in exchange for their free (unpaid) use of the spectrum? Or is it time to take back the spectrum from commercial broadcasters and, perhaps, allow the development of a different use of the spectrum?


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Convergent Media Policy: The Australian Case Thu, 31 May 2012 14:00:14 +0000 2012 has proved to be a remarkably busy year in Australian media policy. There have been three reports released that address the future of media policy and regulation in the context of convergent media: the Convergence Review; the Independent Media Inquiry (Finkelstein Review); and the Review of the National Classification Scheme undertaken by the Australian Law Reform Commission.

It has been the most significant moment in Australian media policy since the early 1990s, when the Broadcasting Services Act and the Telecommunications Act, as well as the Classification Act, were legislated. While these were major initiatives at the time, they were pre-Internet forms of media law that did not anticipate the tsunami of change associated with digitalization, convergence and the globalization of media content.

While other countries are considering changes to adapt their media laws for convergence, Australia has been a world leader in commissioning such major studies that address these challenges head on. A common theme of these reports is that incremental change and policy “muddling through” are no longer sufficient.

In particular, media regulation continues to be primarily based upon the platform of delivery (print, radio, television, telephony, the Internet), whereas media convergence has dislodged the technological bases that tied content to platforms. The Australian Communications and Media Authority has referred to a resulting series of “broken concepts”, ranging from the truly anachronistic, such as the ban on live hypnosis on television, to those which addressed a once-important concept that has been overwhelmed by new developments, such as the separation of carriage and content.

The Convergence Review identified three areas where continued government intervention is justified. First, there is the need to maintain a degree of diversity in media ownership and control. Second, there is the question of content standards, both in terms of news standards and classification of media content in line with community standards. Finally, there are expectations that Australians have around the continued availability of locally produced content that is broadly reflective of Australian culture, identity and diversity.

The question of who should be regulated has become much more complex in a convergent media environment. In discussions of media influence, a distinction is commonly made between “big media” on the one hand who should be regulated more – the name “Rupert Murdoch” will often appear at this juncture – and the Internet on the other, which should not be regulated at all.

But “the Internet” is as much The Guardian Online, BBC World or as it is blogging, citizen journalism, or online mash-ups. The commercial mass media and non-commercial user-created content co-exist in the online digital space, so questions of media influence return in a different form.

The Convergence Review sought to address that question of when a media organization becomes “big”—and hence appropriately subject to regulations based on its potential for influence—with the concept of a “Content Service Enterprise” (CSE). The Review defined a CSE as a media content provider that has over 500,000 Australian users per month, and $50m per annum of revenues from Australian-sourced professional content. Interestingly, the 15 companies that met these guidelines are all conventional media businesses, but the CSE label could in principle be extended to companies such as Google and Apple.

If the CSE concept were extended to global media companies, the question would arise of Australian jurisdictional authority over these businesses. At present, there is a regulatory stand-off, but it may be that future jurisdictional authority will be shared and brokered between Australian agencies and other authorities. In the ALRC Review, this was referred to as deeming, where the classifications given to media content by online “stores” such as Apple ITunes or the Google Android platform could be recognized under Australian media law, subject to approval by the Australian regulators.

Much attention has been given to the question of “who regulates”. One of the difficulties with these discussions is that we think of regulation in terms of how much, rather than in terms of the relationship between its instruments and its outcomes. One message that came through from the ALRC Review was that Australians were less concerned with who classified different media than with the question of trusting those doing it to have an appropriate professional distance from corporate self-interest.

Another difficulty is that convergent media policy brings together different organizational cultures and traditions of regulation. Whereas it is still pretty clear who constitutes the television industry or the newspaper industry, it is less clear what constitutes the Internet, digital content or social media industries.

Meeting with Apple, Google, Facebook or Microsoft introduces you to very different corporate entities, with very different organizational cultures, business models, and relationships to their consumers. Establishing a new regulatory framework for convergent media raises not only the challenges of established media operating across different platforms, but the ever-growing fluidity attached to the concept of “media” itself.


Report From London: Content Regulation Sun, 12 Jun 2011 16:02:48 +0000 I’ve seen more testicles on British TV the past week than I have my in entire previous American TV viewing life. I’ve also heard enough f-bombs to think I must have HBO locked in. But no, it’s just good old terrestrial TV here in London. It’s commonly known that British TV allows more graphic content than US TV, and I can only confirm that. However, there are some intriguing recent complications to consider.

The regulatory qualifications that allow for graphic content here are the so-called watershed, the ever-present concept of public service, considerations of context, and channel warnings. The watershed is a regulatory term for 9pm as a content dividing line. Programming aired before 9pm should be suitable for children under 15 to view; programming after 9pm is intended for adult audiences, ushering in swear words, mature situations and images, and violence (with the latter primarily from US imports). The more graphic the content, the later it is supposed air, but what they deem to be more or less graphic here can be surprising to someone used to American standards. For instance, Channel 4’s Comedy Gala special on Thursday shocked me with the following joke aired around 9:30pm (PTC-types, please avert your eyes): “How do you stop a dog from humping your leg? Pick him up and suck his cock.” And this on a charity show raising money for a children’s hospital.

Nearly all of the testicles I’ve seen are also courtesy of Channel 4. The Embarrassing Bodies series intends to show sheepish Brits who are afraid to tell their doctors about their medical conditions that others have it far worse and yet are willing to display their, um, issues on TV, and thus no one should be afraid to talk to a GP. And herein lies a justification for some of this content: public service under the banner of education. The regulatory overseer Ofcom has fielded complaints about Embarrassing Bodies but defends the series, even when it airs uncovered bathing suit areas pre-watershed, stating in one ruling, “[I]n principle, educational programming on medical matters, and in particular a programme which stresses the importance of viewers not needing to feel anxious or embarrassed by any medical conditions, is not unsuitable for children,” and “discussing male genitalia and sexual problems clearly fell within the educational remit of the series.”

Ofcom also has an extensive list of contextual issues which should be taken into account by programmers, including the likely size and composition of the potential audience and the channel on which the material airs (i.e. Channel 4 is allowed to air more boundary-pushing content because of its remitted mission to do exactly that). And Ofcom insists that channels provide proper warning at the start of shows as to what’s coming along. Following ad breaks during E4’s 10pm airing of Embarrassing Teenage Bodies on Friday, the interstitial announcer warned, “Expect full frontal nudity, intimate examinations, discussions of medical health, and scenes of detailed surgery.”

The announcer also muttered after relaying the title at the start – no kidding – “Oh, my eyes.” Such a cheeky quip seems indicative of the hip youth status E4 strives for, and it also indicates how readily this programming could be taken as exploitative and excessively sensationalistic. However, the educational intent does seem at least partly sincere, with the reminders to see one’s doctor coming across as more than just cursory, and rarely does the content come across as sexually titillating. This shows a level of complexity about sexual content that US television (and culture) rarely approaches. (A friend on Twitter reminded me of the 2000 Tom Green MTV special about testicular cancer, which taught an acquaintance of his, who was not allowed to watch Tom Green, how to self-check, whereupon he found a lump and had surgery.)

Where the dog humping joke might fit within a public service remit is rather less clear (though it was in the name of charity, after all). It’s also worth noting that while the British public is apparently ok with that, thousands complained about costumes and dancing from Christina Aguilera and Rihanna during pre-watershed performances for last year’s X-Factor finale on ITV, which Ofcom later declared within the pre-watershed rules but “at the limit of acceptability.” A government-commissioned report on the sexualisation of media content accessible to children, released just last week, highlighted that incident and has Prime Minister David Cameron insisting that he will impose tighter regulations if Ofcom and the television services don’t voluntarily help to make pre-watershed television even more reliably child-friendly.

Ofcom has plenty of complaints to sift through already, with public concerns raised in recent days over the depiction of an assisted suicide on ITV’s Emmerdale (which I watched, and it offered some of the most powerful scenes I’ve ever seen on a soap), a bed scene between gay lovers on EastEnders (which I also saw and thought was quite chaste compared to a similar scene on ABC’s One Life to Live from last year), the use of the c-word on daytime BBC Radio 4 (yes, I’m censoring myself), and Rihanna’s S&M music video. Ofcom can also prepare for more complaints after the airing of an actual assisted suicide in a BBC documentary Monday night. (And related to these TV issues, the British Board of Film Classification banned Human Centipede II last week.)

So while British TV truly is more permissive with content than American TV, concerns are currently circulating about increasing sexualization and lax regulation, particularly in regard to the potential moral impact of television on children. Meanwhile, American television’s own decency regulations are in legal flux right now. (And it’s intriguing to compare the vagueness of the FCC’s rules with the extensive detail in Ofcom’s Broadcast Code, which not only has many rules but even additional guidance notes on those rules.) But I somehow don’t think that greater testicle allowance will be the end result.


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What Are You Missing? May 1-14 Sun, 15 May 2011 14:15:27 +0000 Ten (or more) media industry news items you might have missed recently, plus a programming note:

1. Warner Bros. now owns Flixster and Rotten Tomatoes, which might raise questions of bias for RT, but MPAA head Chris Dodd is more focused on Hollywood positively promoting itself, rather than individual films. This piece about Hollywood’s white people-heavy summer releases won’t help out with that, but maybe this one about Hollywood actually caring about the olds will. Other moves for Hollywood include searching Europe for remake possibilities and fighting to release more films in China. (Bonus item: Remember a few months ago when I joked about how the MPAA ratings board would explode if they had to rate A Serbian Film? From A.O. Scott’s review of the film: “A Serbian Film” is rated NC-17. The best part of this movie may be that members of the M.P.A.A. ratings board had to sit through it.”)

2. The Cannes Film Festival began Wednesday. Indiewire has a preview of what we’ll be missing, and Peter Bradshaw highlights ten notable Cannes films, including Mel Gibson’s The Beaver, which opened with a deadly thud here. Scott Roxborough says this year’s festival is about big stars and edgy auteurs, while Sharon Waxman notes that women directors are making their mark. Cannes will also feature a film by jailed Iranian director Jafar Panahi, who will be further honored in absentia with an award for courage and independence of thought.

3. The entry on ancillary film distribution always seems to start with bad news about DVDs; so why fix what isn’t broken? DVD revenue dropped 44% last year, so far in 2011 DVD and Blu-Ray sales are off 19% from last year, and Brent Lang doubts that 28-day rental delays will boost sales. On the bright side, um…aaanyway. YouTube is moving forth with its movie rental plan, which poses a marketing challenge, while Netflix is looking to expand into Latin America.

4. Microsoft bought Skype. Some analysts believe Microsoft dramatically overpaid for this acquisition and that the company’s main goal was just to keep Skype away from Facebook. Others say Microsoft has real plans for Skype, expecting that it will boost Microsoft’s standing in the communications market, especially the mobile arena, it could tie in with Kinect, and it might be Microsoft’s gateway into the smart TV business. Or this could just end up as good news for Apple.

5. Three major music industry developments this fortnight: First, Access Industries bought Warner Music for $3.3 billion, which could also open the way for a merger with EMI, though that will be a highly competitive bidding process with regulatory issues. Second, Google has launched its cloud-based music service locker, without the support of record labels, which means it’s basically a remote hard drive for your own music, not a purchasing service, making it positive news for the future of cloud computing but keeping Google and Amazon well behind Apple. And third, dead piracy outlet LimeWire has settled with 13 music labels for $105 million in copyright damages (note: artists don’t get a cent of that), but during the trial, LimeWire’s lawyers tried to stress that label mismanagement and poor executive stewardship was ultimately at fault for the music industry’s troubles, not piracy.

6. A “Do not track” bill that allows consumers to opt out of online info tracking has been introduced in the Senate; media scholar Jeff Jarvis doesn’t think such a bill is necessary, while Google and Facebook argue that such bills can be economically threatening. Amazon is using the economic threat of sales tax imposition to cut ties with more states, and another online business regulation story to keep an eye on is the internet censorship bill. (Random extra that might make you feel old: “All your base has belonged to us” is ten years old.)

7. If you follow any British people on Twitter, you likely saw a #superinjunction tweet or two over the past few weeks. It’s part of a right juicy scandal, as only the Brits can do best, involving sex, celebrities, footballers, gossip, privacy, and gag orders, all writ even larger thanks to social media, especially Twitter, which saw its best UK day ever last week thanks to the circulation of rumors and jokes. Twitter itself is trying to stay out of it and UK gag laws might not even apply to the US company. (Hmm, I wonder if they’d apply to WAYM.)

8. Busy days for Facebook, from internal arguments over prospects in China, to more Congressional questioning over Facebook’s security and privacy issues, to consumer advocate concerns over photo-tagging of brands, to a little matter of Facebook losing face after getting caught conducting a surreptitious smear campaign against Google and trying to evade accountability for it, though some say that the point Facebook was trying to get across about Google’s privacy issues is at least a valid one (you can find an extensive discussion of those issues here).

9. A few items this fortnight showcase major challenges faced by news media outlets: Google lost a precedent-setting appeal in Brussels over links to Belgian newspapers, Facebook is closing in on Google’s news traffic driver dominance, debates about unpaid online contributors and how we judge journalistic value continue to rage, the New York Times website is at a break-even point post-paywall, and a new New Yorker iPad app may represent the beginning of the end of print. Finally, the 2011 National Magazine Award Winners have been announced, and I plan to read the winning articles online, with Instapaper allowing me to save them to read later. Sorry, paper.

10. Some good News for TV Majors links from the past two weeks: BBC Airs Death, Kutcher New Man, Illegal Streaming, NBC Cancellation & Pickup News, Social Media Power, Commissioner to Comcast, Daytime Emmy Noms, Fox Cancellations, Boston Cable, Vast Wasteland Revisited, Showtime Viewer Research, OWN Shake-Up, Bounce Secures Markets, Netflix & Cable, Emmys Deal, TV Households Drop, USA’s Off-Net Impact, Osama bin Laden Coverage.

*Programming note: The bad news is that this is the last WAYM post perhaps until summer’s over. The good news is that WAYM is going on hiatus so I can focus on something else: I’ll be heading across the ocean this week to teach a six-week study abroad course in London focusing on contemporary British TV. I plan to file “Report From…” Antenna posts on Sundays (as long as climate change doesn’t kill the UK’s wifi first) that cover my new experiences with watching and teaching British television. I’m also working on a new research project comparing and contrasting British and US industry practices and programming, so I hope to kick around a few preliminary ideas in these posts, and I especially hope that numerous British and Anglophile Antenna readers offer their thoughts and answers to the (occasionally dumb) questions I’ll raise. So until next Sunday, cheerio! (The British probably don’t really say that, do they, it’s probably just something I’ve seen on TV, right?)


Business as Usual Wed, 08 Sep 2010 13:15:29 +0000 A man holds a homemade sign protesting GoogleOne of the big media stories of this past summer was the release of the joint Google/Verizon “legislative framework” for the future of net neutrality. The agreement mapped out one possible solution to the regulatory and technical issues grouped together as the debate over net neutrality. Google made clear that it would continue to be committed to keeping the ‘public internet’ a place where everybody’s communication stood on an even playing field (at least when it came to the handling of internet traffic.) But, of course, talking about the ‘public internet’ only confirmed that the endgame was the development of a ‘private internet.’ This other Internet would be the domain of ‘additional online services’ (video delivery services, health information, etc.) along with all network activity that involved wireless networks.

For some, the statement marked the final step in the company’s betrayal of their slogan: “Don’t be Evil.” Google was selling out and, worse, it was selling us out too. Commenting on the confusion and betrayal felt by many Google users in a recent blogpost, David Weinberger writes “what’s confusing about Google is that it feels so much like it is ours — for us, like us, of us. It is not just another entity in our ecology but is an important enabler of it. But, we also know that it’s a corporation out to make money. We don’t know how to make sense of this so long as we hold both sides of what, traditionally, would be a paradox.”

At the same time that people were gnashing teeth over the Google/Verizon announcement, RIM was dealing with a series of investigations into its Blackberry messaging services. India, Saudi Arabia, and the UAE raised concerns that these messages could be a threat to national security because they are not transmitted using the public networks (open to state monitoring), but through one of two data centers located in Canada and the UK. These were portrayed as possibly excessive privacy versus security issues (downplaying that the US and UK had recently received similar oversight.)

It’s worthwhile thinking about the Blackberry investigations and Google/Verizon in connection with each another because they tell us a lot about trends in information policy and practice. In many ways, Blackberry is already running on a ‘private internet.’ Users pay for access, and they get secure access to the network. Of course, more than messaging services would be offered if the Google/Verizon framework were to be adopted. But it is worth recognizing that the public/private Internet is already being obsessed over by Blackberry addicts around the globe. RIM’s response to the government investigations is also worth consideration. In Saudi Arabia, Blackberry agreed to build a separate data centre that would handle the message traffic for the country that would be open to government inspection. It looks like a similar deal will be negotiated with India. If Google/Verizon was pushing towards a private Internet, the Blackberry case seemed to signify a push in the opposite direction.

Yet strangely, there is little comfort to be taken in the ‘victory’ over Blackberry and the assertion of the rights of a state over its communication infrastructure. Raising the problem of how much control any government should have over its media, it is what a recent article in The Economist described as a ‘virtual counter-revolution.’ Furthermore, it also touches on the fundamental problem of private Internet services. In the words of Robert Guerra from Freedom House, “RIM’s decision to capitulate so easily says that their corporate interests are most important. It’s all about business – they didn’t want to lose a market.”

Between anxiety over Google and concern about the security of Blackberry messages, we are able to fully grasp the paradox described by Weingold. If we do not know whether to accept or feel anxious about Google because of what it can do for us, we are often equally unsure about how the Internet should be regulated because such regulations feel personal rather than institutional.

Taking a step back, perhaps these recent developments do not simply extend the privatization of the Internet or the control of government over the virtual world. Instead, they mark the latest developments in a new understanding between governments and major media corporations about how the global flow of information will be managed. This understanding is neither oppositional nor laissez-faire, but regulation in exchange for market access and service.  Some of this may seem paradoxical (like Google, scrambling the line between private interest and public good.) But these developments are neither wholly new nor paradoxical when viewed in context. It’s not about what we can do, but what others will do for us. It confirms that the Internet has already joined a long history of state-sanctioned quasi-monopolies in media. The mistake was thinking that the Internet was different.


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