1) A federal appeals court in Washington D.C. has dealt a massive blow to ‘net neutrality’ rules, finding the FCC overstepped its authority by requiring broadband providers like Verizon and AT&T to treat all Internet traffic equally. While it is unclear how much authority the FCC will retain, it is clear the decision greatly decreases the FCC’s ability to retain several such rules. For much more information on this course case, it’s impact on the future of the Internet, and how you can help be heard, I highly encourage you to read Danny Kimball’s recent piece on Antenna.

2) The FCC may soon have another massive decision on its hands, as multiple names and companies have become revealed as potential buyers of Time Warner Cable, a move that would bring yet more consolidation to an already oligarchic system and thus would likely come with ‘bundles’ of strings from regulators. Original reports saw Charter Communication going public about plans to acquire TWC, with the company under the leadership of John Malone making a public plea to TWC investors after the company itself didn’t take original talks seriously. The proposed deal was originally for $61 billion, roughly $132.50 a share. Not long after these reports surfaced, new movement came out of a possible split-deal between Charter and Comcast for TWC, though the proposed deal is unclear of whether it means both buying the company together or Charter buying wholesale but selling particular regions to Comcast. The reports mostly end there, but the deal is clearly heating up and it seems something ought to give soon enough.

3) While we’re on the subject of “great things happening to undeserving cable providers,” Verizon this week announced it has agreed to acquire Intel Media, a broadband streaming video service from the technology company. While no precise amount has been released, the approximation based on earlier valuations put the deal around the $200 million mark. It is not entirely clear how or when Verizon plans to integrate the Internet TV service with its own broadband and FiOS network, but the over-the-top service is expected to launch before the end of 2014.

4) Big money is certainly on the table for the NFL’s Thursday Night Football, as Fox, CBS, ESPN, and Turner Broadcasting have all submitted bids, with NBC expected to join in as well. The NFL is looking for offers of 6 to 8 games in a package for a one-year deal. Despite bids from ESPN and Turner, the belief is the NFL wishes to land a network deal, ensuring higher ratings to in turn boost valuation when the bidding takes place again next year.

5) Reorganizations are happening at Viacom, with two next units being announced in the past two weeks. One is a new Programs Acquisitions Group, a unified group that will control all aspects of the acquisitions process across all of Viacom’s U.S. media networks. The second change is a new ad-sales unit called Viacom Velocity that will create special content for advertisers using their various networks. Viacom executives referred to a recent campaign done exclusively on Comedy Central to promote Marvel’s Thor: The Dark World featuring the film’s Tom Hiddleston. Did I mention this story just so I could link to this video? You tell me:

6) Fox has once again been denied an injunction and even a rehearing of its case against Dish and their ad-skipping DVR  the “Hopper.”  Fox had petitioned for a rehearing after being denied the injunction last summer, and their goal of proving infringement in court looks slim. Fox might choose to try and take the case to the Supreme Court, but with the Aereo case already set to be decided their, it is unlikely the High Court would take such a similar dispute.

7) If you read “What Are You Missing” regularly, you are no doubt aware of the recent spat of musicians and artists filing lawsuits against their labels over missing digital royalties owed via various music streaming sites/services. The Counting Crows are now the newest addition to that growing list, which now includes artists as far ranging as Peter Frampton, George Clinton, and Rick James.

8) An interesting case out of an appeals court could change the way Internet gossip is seen and tried in future cases. The court found that Internet bloggers can in fact use First Amendment rights as a defense against defamation lawsuits, claiming the speaker does not need to claim status as a trained and employed journalist as long as the public importance and public image of the subjects in question is established.

9)  China is taking stricter measures to control online video and book publishing in order to help combat piracy and regulate content. The new regulations require posters of “microfilms,” a burgeoning market alternative to state-approved media, to submit their real names when uploading content to video streaming sites. While this could have much broader impacts, the language of the regulatory body’s announcement seems to indicate a more narrow focus on these microfilms, rather than the much larger swath of user-generated content.

10) The little guy is fighting back as an independent regional movie theater chain in the Southeast, Cobb Theaters, has filed a federal antitrust lawsuit against AMC, claiming the national chain as coerced film distributors to deny product to the smaller chains. The claim accuses AMC of contacting major film distributors and studios asking them to deny product to the regional chain, using its market control as leverage.

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.

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 youtube.com disappear from your browser (or redirecting it to nbc.com 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.

1. In-flight airline entertainment is at a crossroads, as airlines decide between spending on wifi upgrades to let people use their own devices and on airplane entertainment technology like seat-back systems. JetBlue is going for the wifi option, and Boeing is upgrading wifi systems on their planes, while a few international airlines are passing out pre-loaded iPads to keep passengers entertained. In addition to the ever-rising costs to access in-flight wifi, there’s also the matter of it inevitably being slow.

2. Netflix has new competition to keep an eye on: Sky made a deal in the UK with Warner Bros., the new Redbox-Verizon service plans a Christmas debut, there’s word Disney could jump into the fray soon, UltraViolet might finally make some noise, and cable VOD stands to encroach further on Netflix’s territory.

3. Predictions are starting for the Foreign Language Oscar race, but you can take Iran off the table for the back-to-back win because it will boycott the Oscars due to outrage over Innocence of Muslims. Or at least that’s the reasononing Iran’s culture minister claims. Alyssa Rosenberg thinks there might be more to it. Either way, Iran won’t be thrilled to hear that more film projects about Muhammad are in the works.

4. Theaters continue to struggle, with the iconic Lumiere Theatre in San Francisco and the Roxy Theater in Philadelphia darkening for good. A pair of designers believe new design thinking can help turn theaters around. Theater owners might also follow the branding advice of AMC Theaters’ Shane Adams, who impressed many on Twitter last week. At least AMC and other theaters can continue to charge whatever high prices they want for snacks, thanks to a lawsuit dismissal.

5. There was a huge deal in the music business, as Universal Music Group finalized the acquisition of EMI Music’s recorded music unit following European Union and US approval, which was contingent upon the new combo selling off some assets, including the contracts of some prominent artists. Even after that, Universal will end up with control of about 40% of the US and European music market and immense power over the future direction of the industry.

6. Alyssa Oursler insists that Pandora and other music services have nothing to worry about from the Universal deal, and Pandora’s attention is elsewhere right now anyway, specifically on supporting a proposed bill called The Internet Radio Fairness Act that would lower streaming service royalty fees to put them par with what satellite radio and cable companies pay. Independent stations also support the bill.

7. There’s a redesigned PlayStation 3 coming out, but don’t expect to get a cheaper deal on a previous model. You can expect more mobile options from Sony, and Electronic Arts is also trying to take advantage of multi-platform gaming. You’ll be able to play multiple Hobbit games on multiple platforms, and Sesame Street is also pointing the way toward the future of gaming.

8. Wal-mart won’t be selling Kindles anymore. The stated reason why is somewhat vague, and it could just have to do with frustration with Amazon. Some readers are getting frustrated with higher e-book prices from Amazon, while Amazon will try to hook more with Kindle Serials. Amazon will have a new competitor thanks to a new e-book venture formed by Barry Diller and Scott Rudin.

9. Conditions at China’s Foxconn factory, which makes the iPhone 5, got even worse, with a riot temporarily shutting down production. This has come at a tenuous time for China’s corporate environment and raises larger questions about Chinese manufacturing, while Foxconn’s owner is looking to expand his business efforts beyond the country. Apple insists it is improving foreign factory conditions.

10. Some of the finer News for TV Majors posts from the past few weeks: Cheers Oral History, Live TV Controversy, Auction Plans, The CW Signs With Nielsen Online, Dish Talking Internet TV, Changing Households, Variety Buyer, Cable Battles Consoles, Emmys Coverage, Female Employment, Netflix & A&E, Measuring Social Buzz, Tweeting Isn’t Watching, Microsoft Hire, New BBC. 

A few major events have dominated the net neutrality front in the last several months.  The FCC’s policy proposal process was interrupted in April when the Comcast v. FCC case put the commission’s legal authority to regulate internet access at all highly in doubt (the legacy of Bush-era reregulation).  Over the summer, then, the FCC held meetings to negotiate a compromise on net neutrality regulations— meetings held behind closed doors with only representatives of the cable and telecom industries and internet content and service companies at the table.  Then, in August, Verizon and Google reached an agreement and announced their plan for how to enact net neutrality policy, as covered here on Antenna by Mark Hayward and here by Jennifer Holt.

Net neutrality as a term, while it has been translated different ways, ultimately has been articulated to a particular principle of openness and nondiscrimination— like common carriage, the public obligations of private infrastructure owners.  The concept of net neutrality is constructed discursively: while the term has absorbed different values and interests from various stakeholders, a common sense of its meaning has coalesced and it has become relatively stable as a discursive formation.  The term started its life as a technical principle, coined by Tim Wu to describe the most efficient network design to encourage innovation.  It has also been taken up by internet content and service companies like Google (pre-Googizon era) and Skype, mostly as an economic principle describing the most fair marketplace for their content and services to compete.  Public interest organizations like Free Press have used it to describe a civic principle of freedom of expression and democratic participation.  Despite the differing interests of these groups, they formed a sort of alliance that came together in support of a few basic tenets: infrastructure control should be kept separate from content control, so that internet access providers should not interfere with or give preferential treatment to any particular content, service, application, or device based on who owns it.

Now that one of its biggest “supporters” is Verizon and Google, once the loudest pro-neutrality voice, has committed itself to a very compromised position, what net neutrality actually means is changing very quickly.  This is evident especially in the recent (eventually shelved) net neutrality bill introduced into the US House by Rep. Henry Waxman and its resemblance to the Verizon/Google vision of net neutrality.  Judging from this, “net neutrality” means something very different now.  First, openness rules apply to the “public internet,” but there are no such requirements on “differentiated services,” which means that this “private internet” would become a de facto fast lane for only the content and services owned by cable and telecom companies (hello Comcast-NBCU) or those who can afford to cut deals with them (goodbye Antenna).   Further, there are no nondiscrimination rules at all for wireless internet access, which is especially troubling since it’s easy to see that mobile devices will very soon be the dominant way to access the internet.  Finally, the FCC is left to investigate bad actors only on a case-by-case basis and has no rulemaking authority over internet access, which is clearly an indication of how corporations like Verizon and Google can cut regulators out of the policymaking process altogether and just do it themselves.

Clearly, then, there is a difference between the principles behind net neutrality and the way it is now talked about– especially in the policy sphere where discourse has the power to shape the technical structures in question.  One undeniable reason for the progress that had been made toward enforceable net neutrality was the support of big internet corporations– especially Google.  However, the alliance that came together around the issue is beginning to splinter, as shown by Google moving away from the overlapping interests that once brought this alliance together and toward new interests, especially their relationship with Verizon in the mobile device market.  The compromise reached between “both sides,” then, is between two competing sets of corporate interests and the definition of the net neutrality situation is left up to those with the biggest profits to gain.  Like Bill Kirkpatrick detailed here on Antenna recently in regard to ACTA, this is yet another way of confusing the powers at play in making policy: when the party at the negotiating table in these policymaking issues that comes the closest to representing the public interest is just another big corporation and the public interest and the corporate interest inevitably split, then we’re all left out of the process.

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.