April 2011

I have serious concerns that as the Federal Communications Commission continues to address broadband deployment barriers outlined in the National Broadband Plan, new obstacles are being erected that are directly contrary to the Plan’s recommendations and goals.

I recently learned that several state legislatures are considering bills that are contrary to the deployment objectives of the Broadband Plan. For example, in North Carolina, the state legislature is currently evaluating legislation entitled ‘Level Playing Field/Local Government Competition.’ Last week the North Carolina House passed the bill, and it currently awaits consideration in the Senate. This piece of legislation certainly sounds goal-worthy, an innocuous proposition, but do not let the title fool you. This measure, if enacted, will not only fail to level the playing field; it will discourage municipal governments from addressing deployment in communities where the private sector has failed to meet broadband service needs. In other words, it will be a significant barrier to broadband deployment and may impede local efforts to promote economic development.

The National Broadband Plan recommended that Congress clarify that State, regional, and local governments should not be restricted from building their own broadband networks. When providers cannot meet the needs of local communities, the Plan provides that State, regional, and local entities should be able to respond accordingly, as they were able to do when municipal governments distributed electricity to thousands of rural communities during the 20th Century. Unfortunately, this National Broadband Plan recommendation continues to be ignored by some broadband industry members that are encouraging these misguided efforts.

Not long after the National Broadband Plan was issued, I had the privilege to visit North Carolina and speak about the goals in the Plan, and the importance of our nation using every available tool to address the broadband divide. I believe now, as I did then, that no American citizen or community should be left behind in the digital age. However, I remain concerned that when cities and local governments are prohibited from investing directly in their own broadband networks, citizens may be denied the opportunity to connect with their nation and improve their lives. Local economies will suffer as a result, and the communities’ ability to effectively address education, health, public safety, and other social issues will be severely hampered. Regrettably, North Carolina isn't the only state considering such legislation. My home state of South Carolina has similar legislation pending, and the state of Arkansas is contemplating a complete ban on publicly-owned broadband facilities. I fear that preventing local governments from investing in broadband is counter-productive and will impede the nation from accomplishing the Plan’s goal of providing broadband access to every American and community anchor institution.

[Commentary] Lots of attention has been lavished on Time Warner Cable's attempt to stream TV networks over its IP network, and the subsequent backlash from those TV networks. But that's just one recent development that will lead to the end of the multichannel TV bundle as we know it today. Two other developments -- Adobe's new TV Everywhere authentication scheme and Comcast's drive towards non-system network licensing -- spell the beginning of a scorched-earth phase that will unfold over the next year or so. And when it's done, the media landscape will look entirely different.

Here's what I think will happen. First, packages of multi-channel services will become unbundled from the physical transport -- so for example you'll be able to buy your TV shows from Comcast and your Internet service from Time Warner. But the individual TV networks will own the "Everywhere" authentication process, and begin to build a direct relationship with consumers. And once the bundles are unbundled -- and the networks have a direct line to the consumer -- the middleman (Comcast, Charter, Dish, DirecTV) will become disaggregated. And that means the end of the TV market as we know it.

The White House will host a April 6 summit titled "Spectrum Auctions: Unlocking the Innovative Potential of Wireless Broadband."

The event will highlight the "economic benefits" of auctioning "under-utilized" spectrum, which include expanded wireless coverage and more revenue for the Treasury, the White House said. Participants in the event will include Austan Goolsbee, chairman of the Council of Economic Advisers; FCC Chairman Julius Genachowski; and Jason Furman, deputy director of the National Economic Council. In addition, experts from Stanford, Duke, Columbia and Google will participate. Absent from the roster are television broadcasters, which have begrudgingly agreed to participate in voluntary auctions to reallocate some of their spectrum to wireless carriers.

Public Knowledge has proposed changes to three key portions of copyright law: (1) notice and takedown procedures; (2) how to handle “incidental” copies of material and (3) digital music licensing, as part of the organization’s Copyright Reform Act project.

Three papers, each on one of those topics, as well as the other papers from the Copyright Reform Act project, are available online. The paper dealing with notice and takedown argues that the provisions of the Digital Millennium Copyright Act which allow copyright holders to challenge material posted online are “skewed in favor of takedown, leaving its procedural safeguards limited in effect,” and asks that Congress reform the procedures “to restore balance in the notice and takedown procedure, protect the rights of copyright owners, encourage OSP (online service provider) innovation, and respond to the needs of online users, content creators, and the public at large.” Among other items, the paper recommends that takedown notices be submitted under penalty of perjury and that there be increased transparency to the process.

“Incidental copies” are created as part of most technological processes, including every time a media file is played on a computer, every time software is launched, and every time a website is viewed on the Internet. Content companies have consistently tried to make these transient copies subject to copyright royalties, but without success.

To clarify the law, PK proposes that the DMCA exempt from infringement liability “transient or incidental” reproductions of material that are “made as an integral and essential part of a technological process” to enable a lawful use of the material.

The third paper deals with digital music licensing. While digital music has become increasingly more popular, the copyright organizations and rules surrounding it have not adapted. As a result, PK proposed the creation of digital music rights organizations (“DMROs”). These organizations would consolidate licensing for the reproduction, distribution, and public performance rights to nondramatic musical works, making it easy to find and obtain licenses. Under the proposal, DMROs are required to offer blanket licenses to their entire catalogs of works to employ reasonable and nondiscriminatory licensing terms, and to establish and maintain a searchable online database of the works they are authorized to license.

PK also proposed the clarification of the rights associated with digital transmissions. The Copyright Act should be amended to make clear that (1) any incidental copies made to facilitate music streaming -- a digital performance of a nondramatic musical work -- does not infringe the reproduction right, and (2) a music download does not implicate the right of public performance of the musical work.