November 2011

Cablevision Continues to Battle FCC's Program Access Decision Against MSG

Cablevision has decided to file suit against the Federal Communications Commission's decision to require its Madison Square Garden subsidiary to make its high definition feeds available to Verizon and AT&T. It has asked the Second Circuit Court of Appeals to stay the Nov. 25 effective date of making those feeds available per that FCC decision.

The Second Circuit last week refused Cablevision's request to stay the decisions, a request made before the FCC came out with its ruling the following day upholding the FCC. Now that the commission has weighed in upholding the decision, Cablevision is suing it. "We are pursuing a stay with the Second Circuit Court of Appeals while we seek a review of the Orders," said Cablevision. "We continue to believe that an unbiased review of the data can only result in one conclusion: that there has been no competitive harm to the nation's two largest phone companies. In a highly competitive marketplace like New York, a forced sharing of offerings only deters companies from investing and innovating, which hurts both fair competition and consumers. Verizon and AT&T should be expected to compete based on their products and not by manipulating federal law." Without the stay, says Cablevision, MSG will suffer "irreparable harm to their market share, reputation, and First Amendment rights."

The Pivotal Role of Public Television

This is excerpted from a November 10, 2011 keynote speech Bill Moyers delivered to public television representatives from around the country at American Public Television's annual conference. APT will be distributing his new program Moyers & Company starting January.

House Communications and Technology Subcommittee Approves Legislation to Increase Transparency and Efficiency at FCC

The House Commerce Committee’s Communications and Technology Subcommittee, chaired by Rep. Greg Walden (R-OR), approved the Federal Communications Commission Process Reform Act of 2011 (H.R. 3309) by a vote of 14 to 9, and the Federal Communications Commission Consolidated Reporting Act of 2011 (H.R. 3310) by voice vote. These bills improve the way the FCC operates by increasing transparency, predictability, and consistency.

The panel rejected an amendment from Rep. Anna Eshoo (D-CA), the subcommittee's ranking member, that would have expanded the authority of the FCC to review corporate mergers. Rep. Lee Terry (R-NE) said the amendment would have "nefarious" consequences. "I don't think you intended to use that word," Rep Eshoo said. "It doesn't belong in this hearing room." Rep Terry said he stood by his statement.

Chairman Walden said the reforms would create regulatory certainty, helping businesses know when to invest. Rep Eshoo said the legislation would give companies that disagree with the FCC's decision new grounds to bring lawsuits, opening the agency up to "years of litigation." "At the end of the day, I don’t think this is reform. It’s gumming up the works," she said.

Rep. Mike Doyle (D-PA) said the bills are an "effort by some of my colleagues to create procedural roadblocks that only apply to the FCC." Rep. Marsha Blackburn (R-TN) said the measures are "good policy because we all know that the FCC has a little bit of a problem with overreaching their authority."

A goal we should all share: A 21st century FCC

[Commentary] Federal Communications Commission Chairman Julius Genachowski has taken some steps to open his agency’s processes to the public. However, only Congress can make permanent these reforms and others to ensure that the FCC is the kind of accountable federal agency that taxpayers deserve.

To that end, the Subcommittee on Communications and Technology Wednesday 16th Nov will examine a bill we recently introduced, the FCC Process Reform Act, that would put good government reforms into law for the current FCC -- and for all those to come in the future. Taking a page from the President’s Executive Order, the bill would require cost-benefit analyses for economically significant rules, where increased scrutiny is most warranted. And drawing on recommendations from the Government Accountability Office, the bill would only require performance measures for those programs where the FCC collects and spends $100 million or more of federal funds. The legislation is the result of an open, transparent, and accountable process. We have held two hearings on FCC process reform and substantially refined our legislation as a result of the testimony we received. We have listened to stakeholders and reached across the aisle to understand the views of all involved.

Rep. Terry: FCC Actions Undermine Process

Rep Lee Terry (R-NE) says Federal Communications Commission Chairman Julius Genachowski has done a "decent" job, but some of the most significant actions by the agency seem to be driven by a partisan agenda.

He said FCC actions on open Internet rules as well as efforts to reform the Universal Service Fund to promote broadband development have suffered from preconceived opinions and a lack of transparency. "The critique would have to be net neutrality looked like it was driven by an agenda rather than good policy," said Rep Terry, vice chairman of the House Commerce Committee’s Subcommittee on Communications and Technology. Efforts to reform the Universal Service Fund to pay for new broadband services, meanwhile, are opaque, Rep Terry said. "There's an order out there and I have no Idea what it says." Rep Terry said unpublicized agency orders and "document dumps" can make it appear that FCC leaders are "abusing the process."

House Holds One-Sided Hearing on Piracy Bill

The House Judiciary Committee held an important hearing on the Stop Online Piracy Act with a hugely stacked deck of witnesses -- Google's lawyer was the only one of the six to object to the bill in a meaningful way. And it wasn't hard to see why. This wasn't a hearing designed to elicit complex thoughts about complex issues of free speech, censorship, and online piracy; despite the objections of the ACLU, dozens of foreign civil rights groups, tech giants like Google and eBay, the Consumer Electronics Association, China scholar Rebecca MacKinnon, hundreds of law professors and lawyers, the hearing was designed to shove the legislation forward and to brand companies who object as siding with "the pirates."

How low was the level of debate? The hearing actually descended to statements like "the First Amendment does not protect stealing goods off trucks" (courtesy of the AFL-CIO's Paul Almeida).

Right from the start, the knives were out for Google. Committee Chairman Lamar Smith (R-TX) made it only halfway through his opening statement before asserting that "one of the companies represented here today has sought to obstruct the Committee’s consideration of bipartisan legislation. Perhaps this should come as no surprise given that Google just settled a federal criminal investigation into the company’s active promotion of rogue websites that pushed illegal prescription and counterfeit drugs on American consumers."

Stop the Great Firewall of America

[Commentary] China operates the world’s most elaborate and opaque system of Internet censorship. But Congress, under pressure to take action against the theft of intellectual property, is considering misguided legislation that would strengthen China’s Great Firewall and even bring major features of it to America.

The legislation — the Protect IP Act, which has been introduced in the Senate, and a House version known as the Stop Online Piracy Act — aims not to censor political or religious speech as China does, but to protect American intellectual property. Alarm at the infringement of creative works through the Internet is justifiable. The solutions offered by the legislation, however, threaten to inflict collateral damage on democratic discourse and dissent both at home and around the world. The bills would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers and advertising networks, all without a court hearing or a trial. The House version goes further, allowing private companies to sue service providers for even briefly and unknowingly hosting content that infringes on copyright — a sharp change from current law, which protects the service providers from civil liability if they remove the problematic content immediately upon notification. The intention is not the same as China’s Great Firewall, a nationwide system of Web censorship, but the practical effect could be similar. [MacKinnon, a senior fellow at the New America Foundation and a founder of Global Voices Online]

Network Neutrality Saved, But Who Cares?

[Commentary] The Senate’s rejection of a "resolution of disapproval" of the Federal Communications Commission’s open Internet rules was a major victory for network neutrality, but should anyone care? Not really.

The problems that would be created by a lack of net neutrality are generally monopoly-related. That is, should network operators have the right to slow down various types of competing services? Most reasonable people would say no. After all, is it fair to essentially control the network infrastructure and also compete with smaller businesses that rely on that infrastructure? This theoretical problem becomes a real one in the broadband market, because in many parts of the country there are at most two choices for last mile service. As I've argued before, having two providers (telco and cable) in an area doesn't constitute a free broadband marketplace. It encourages cronyism, even collusion. The right way to proceed is to emulate Europe: Unbundle the middle mile network from the last mile. That is, don't let the same entities that control the middle mile compete in the last mile market. The middle mile--between the cable company and phone company--is a commons. There, the providers don't overbuild fiber optic; they do fiber swaps.

Minority Leader Pelosi backs call for Supreme Court to televise healthcare case arguments

House Minority Leader Nancy Pelosi (D-CA) said that Supreme Court arguments over the healthcare law should be televised. “When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it,” Minority Leader Pelosi said. Sen. Chuck Grassley (R-Iowa) also backed C-SPAN’s request for a televised hearing.

The Supreme Court has never opened its proceedings to cameras. But the healthcare lawsuit is also the first time since the invention of video that the court has scheduled nearly six hours of oral arguments. The lengthy hearing raises the distinct possibility that a sitting president’s signature legislative achievement could be ruled unconstitutional in the midst of his reelection campaign. The court is expected to divide oral arguments over two days. One day will focus on the individual mandate and the Anti-Injunction Act, which could bar a ruling on the merits. The other would be set aside for the healthcare law’s Medicaid expansion and whether other parts of the law must also be struck down if the mandate is found unconstitutional.

FCC Mails 3rd Set of Equal Employment Opportunity Audit Letters

On November 14, 2011, the Federal Communications Commission mailed the third set of its Equal Employment Opportunity (EEO) audit letters for 2011. This mailing was sent to randomly selected multi-channel video programming distributors (MVPDs).

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