April 2012

BENTON'S COMMUNICATIONS-RELATED HEADLINES for TUESDAY, APRIL 3, 2012

PRIVACY
   The Advertising Industry's Definition of 'Do Not Track' Doesn't Make Sense - analysis
   Why Google isn’t the privacy villain it’s made out to be (this time) - analysis

WIRELESS/SPECTRUM
   Sen Franken: Small companies fear retribution if they oppose Verizon-cable deal
   Verizon’s mobile TV plans don’t make sense - analysis
   ACLU report: Warrantless tracking of cellphones ‘pervasive and frequent’
   Europe Opens Patent Investigations Into Motorola Mobility

OWNERSHIP
   Court: Cable bundling does not limit competition
   Europe Opens Patent Investigations Into Motorola Mobility

CONTENT
   White House report claims 'great strides' on intellectual property
   Rep Lamar Smith: SOPA protesters were “misinformed.”

TELEVISION
   Verizon’s mobile TV plans don’t make sense - analysis
   Court: Cable bundling does not limit competition
   SAG and AFTRA members give thumbs up to merger

INTERNET/BROADBAND
   Optical Delusion? Fiber Booms Again, Despite Bust

TELECOM
   State commissioners petition FCC to step up regulation of unused phone numbers

GOVERNMENT & COMMUNICATIONS
   ACLU report: Warrantless tracking of cellphones ‘pervasive and frequent’

LABOR
   SAG and AFTRA members give thumbs up to merger
   Unpaid bloggers' lawsuit vs Huffington Post tossed

POLICYMAKERS
   FTC’s Leibowitz , Ohlhausen Confirmed as Commissioners - press release
   FTC Chairman Releases 2012 Annual Highlights - press release

RESEARCH
   Communication Technologies: Five Myths and Five Lessons from History - research

NEWS FROM ABROAD
   Europe Opens Patent Investigations Into Motorola Mobility

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PRIVACY

DEFINING “DO-NOT-TRACK”
[SOURCE: The Atlantic, AUTHOR: Alexis Madrigal]
[Commentary] There is a battle brewing between the Federal Trade Commission and digital advertisers over a system designed to help people control their data called "Do Not Track." The FTC seems to define it like this: “An effective Do Not Track system should go beyond simply opting consumers out of receiving targeted advertisements; it should opt them out of collection of behavioral data for all purposes other than those that would be consistent with the context of the interaction.” The advertising industry seems to define it as “forbidding the serving of targeted ads to individuals but not prohibiting the collection of data.” The industry definition of 'Do Not Track' is based on the opt-out language they used in a previous self-regulatory effort. Unfortunately, no one understands the industry's definition because it deviates so far from the standard English definition of the word 'track.' Simply because the industry itself has defined 'Do Not Track' in an idiosyncratic way doesn't mean their self-serving decision should be the basis for all policy and practice in this field. In fact, if the industry is putting up this kind of consumer-unfriendly fight over what DNT should mean, how are we supposed to trust the other self-regulatory moves the industry says it will make to protect consumer privacy?
benton.org/node/119456 | Atlantic, The | The Hill
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GOOGLE’S PRIVACY POLICY
[SOURCE: GigaOm, AUTHOR: Derrick Harris]
[Commentary] Google has been on the receiving end of some particularly egregious complaints lately, most of them stemming from its revised privacy policy that went into place on March 1. However, most of these efforts to call Google to the carpet seem like little more than attempts to make a quick payday with a legal settlement or to make political hay by calling out the privacy villain du jour on behalf of voters. Online privacy is a complex issue, and blindly pointing fingers every time a site changes its privacy policies or introduces a new service does little to advance the discussion. Recent suits and allegations are silly at best and disingenuous at worst. They piggyback on the confusion over the new privacy policy, despite the fact that there is not much that is new. These types of suits also ignore how free consumer-focused websites make money, and they take tricky issues like consent and put them in ludicrously simple terms that won’t help advance how we handle privacy in an online age where we don’t know how our Web behaviors will change from week to week.
benton.org/node/119449 | GigaOm
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WIRELESS/SPECTRUM

OPPOSITION TO VERIZON SPECTRUM DEAL
[SOURCE: The Hill, AUTHOR: Brendan Sasso]
Sen. Al Franken (D-MN) said that small companies have told him they fear that if they publicly oppose Verizon's proposed deal with a coalition of cables, they will suffer retribution. "You know, during the NBC/Comcast debate, I heard from smaller companies that opposed the merger but were afraid to do so publicly because they worried about the retribution they might face from Comcast. I heard the same thing during AT&T/T-Mobile, and I’m hearing it again now from companies concerned about Verizon’s deals with the big cable companies," Sen Franken said in a speech to the American Bar Association about antitrust law. "What better proof could there be that too much consolidation in the market is going unchecked?"
“It is important to note that the proposed spectrum purchase Senator Franken refers to is not a merger, involves neither the acquisition of customers nor a combination of operations or assets and involves the purchase of unused spectrum that would be put use by consumers," a Verizon spokesman said, distinguishing the deal from the NBC/Comcast and AT&T/T-Mobile mergers. "There have been a number of opportunities for companies large and small, their trade associations and consumers to express their views on the matter and the FCC record reflects that they have done so,” the spokesman said.
benton.org/node/119464 | Hill, The
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OWNERSHIP

CABLE BUNDLING SUIT DISMISSED
[SOURCE: The Hill, AUTHOR: Andrew Feinberg]
A three-judge panel of the U.S Court of Appeals for the Ninth Circuit has ruled that content owners' requirement that cable and satellite operators sell channels in bundles does not limit competition under the Sherman Anti-Trust Act. The suit had originally been brought by a group of cable and satellite subscribers who alleged that the practice of multichannel video program distributors (MVPDs) selling "bundles" of channels while not allowing the same channels to be purchased individually was a result of content providers exploiting their market power. The complaint was dismissed by a district court judge who ruled that the subscribers hadn't explained why the bundling requirement harmed competition. After hearing an appeal by the consumer plaintiffs, a panel consisting of Judges Barry Silverman, Consuelo Callahan and Sandra Ikuta voted unanimously to affirm the district court's dismissal of the complaint. In the opinion written by Judge Ikuta, the court ruled that while content owners might be exploiting their market power by requiring desirable channels to be bundled with less desirable channels and therefore "enhancing the price of the tying product," the practice did not actually threaten an injury to competition. "Antitrust law recognizes the ability of businesses to choose the manner in which they do business absent any injury to competition," Judge Ikuta wrote.
benton.org/node/119463 | Hill, The | Broadcasting&Cable
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CONTENT

WH IP REPORT
[SOURCE: The Hill, AUTHOR: Andrew Feinberg]
The White House claimed "great strides" in implementing its strategic plan on protecting intellectual property in a report released March 30. The report detailed efforts over the past year to increase protection of U.S. intellectual property. Released annually and bearing the seal of the Obama Administration's Intellectual Property Enforcement Coordinator, the report notes the steps taken to implement the Joint Strategic Plan on Intellectual Property Enforcement. The United States has taken "great strides towards implementing the Strategy," IP czar Victoria Espenel wrote in a letter prefacing the report. Putting the IP enforcement plan has taken the coordinated efforts of numerous agencies and offices, she said, to execute 43 action items under six principles. The plan's goal has been to "improve intellectual property enforcement, thereby protecting innovation, strengthening the economy, supporting American jobs, and promoting exports in intellectual property-related sectors by increasing intellectual property enforcement," she said. While the report encourages more inter-agency cooperation and public-private partnerships, it indicates that the administration isn't keen on legislation that would sacrifice freedom of expression in the name of IP enforcement.
benton.org/node/119446 | Hill, The | read the report | ars technica
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SMITH: SOPA PROTESTORS MISINFORMED
[SOURCE: GigaOm, AUTHOR: Stacey Higginbotham]
Stop Online Piracy Act (SOPA) sponsor and defender Rep Lamar Smith (R-TX) just can’t let the ideas that led him to sponsor the bill die. Rep Smith, who is from Austin (TX), gave a few moments to a local community newspaper that I happened to see over the weekend. In it he pledged to deal with online piracy and called SOPA supporters misinformed. In an interview with John Garrett, the publisher of Community Impact, Rep Smith said, “Well, SOPA is not going to rise again in its current form. I do think we have to address the current concerns. I still feel there is a serious problem with online piracy. And a lot of folks in Austin will agree, whether they are musicians who see their recordings stolen and downloaded for free … there are a lot of individuals who are hurt by online piracy. But there was also a lot of misinformation about this particular piece of legislation. The language of the bill clearly limited our concerns to foreign websites primarily engaged in illegal activity. When we would get calls at the office about, ‘You’re getting ready to shut down Facebook,’ or ‘you’re getting ready to stop Google,’ … no one had made a clear distinction between domestic websites and foreign websites primarily engaged in illegal activity. And we were simply overwhelmed by that misinformation.”
Hmmm, it seems as if Smith is a bit misinformed himself.
benton.org/node/119448 | GigaOm
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TELEVISION

VERIZON’S MOBILE TV
[SOURCE: GigaOm, AUTHOR: Stacey Higginbotham]
[Commentary] Verizon CEO Lowell McAdam is pitching a form of integrated wireless and wireline cable TV package if the government approves its plans to buy $4 billion worth of spectrum from a variety of cable companies. McAdam told the Wall Street Journal about his plans, but so many aspects of the article don’t add up that it reminds me of sleight of hand. Verizon’s offering a shiny flourish around integrated video to hide the truth: that this proposed spectrum buy isn’t good for consumers and won’t make their TV experience better at all. The Journal’s article neglects to ask some big questions, and when I emailed Verizon to get some clarity a spokesman declined to comment beyond what was in the article. He emailed, “Lowell was simply describing possible outcomes from our joint venture, but he wasn’t announcing products or giving any precise plans. We’ve got nothing to add at this point.”
Higginbotham asks: 1) Why would I want to subscribe to a mobile channel a la carte? 2) Does Verizon really think consumers have a burning desire to watch Project Runway via their cellular data plan? 3) Would consumers have to pay for these mobile channels on top of their regular cable subscription? 4) If so, how is that integrated? 5) Isn’t Verizon killing its unlimited plans and trying to buy extra spectrum because the influx of video on its network is just overwhelming it? 6) How can whatever service Verizon is proposing be considered integrated since Verizon is talking about mobile only?
benton.org/node/119458 | GigaOm
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INTERNET/BROADBAND

NEW FIBER BOOM
[SOURCE: Wall Street Journal, AUTHOR: Anton Troianovski]
After years of licking its wounds, and with much of the fiber-optic cable capacity in the ground still unused, the telecom industry is going on another building spree. Some 19 million miles of optical fiber were installed in the U.S. last year, the most since the boom year of 2000, research firm CRU Group says. Corning, a leading maker of fiber, sold record volumes last year and is telling new customers that it can't guarantee their orders will be filled. RWF Bron, a Canadian maker of the specialized "cable plows" used to bury fiber-optic cable, says the last six months were its busiest in a decade. And railway Norfolk Southern says it is finally seeing interest in the empty plastic pipes it buried along its tracks in the late 1990s, betting telecom companies would pay to string fiber through them. It is early days in what some in the fiber-optic business are calling a new boom for their long-beaten-down industry. Demand is being driven by skyrocketing Internet video traffic, requests from the financial sector for ever-faster trading connections, and soaring mobile phone use -- which has to be tied into landline networks. Even the 2009 economic stimulus plan, which set aside $7.2 billion for telecom projects, is pitching in. But already some skeptics caution whether enough demand exists to warrant more building.
benton.org/node/119453 | Wall Street Journal
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TELECOM

REGULATION OF UNUSED PHONE NUMBERS
[SOURCE: The Hill, AUTHOR: Andrew Feinberg]
State utility commissioners want action by the Federal Communications Commission (FCC) to ensure all Voice over IP (VoIP) phone providers follow the same set of rules for managing phone numbers. The National Association of Regulatory Utility Commissioners (NARUC) filed a formal request with the FCC for a rulemaking to stop "a number" of VoIP carriers who "continue to seek favored treatment via direct access to [phone] numbers and without the related obligations." NARUC argues that there is no mechanism for monitoring number utilization by unlicensed and non-certified carriers, which are "not likely to have an incentive to efficiently utilize numbering resources." Many "small nomadic" VoIP providers haven't obtained licenses from either states or the FCC, but instead directly petitioned the FCC for a waiver, NARUC said in its request. NARUC's request for rulemaking is a result of those petitions, it said.
benton.org/node/119451 | Hill, The
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GOVERNMENT & COMMUNICATIONS

WARRNTLESS CELLPHONE TRACKING
[SOURCE: The Hill, AUTHOR: Brendan Sasso]
Local police departments across the country are tracking cellphones without obtaining a warrant, according to a report released by the American Civil Liberties Union (ACLU). In August, the ACLU filed requests under state freedom of information laws for police documents detailing their policies for tracking cellphone locations. The ACLU said many agencies never responded, but about 200 departments provided records, such as policy statements, memos and requests to phone companies. The documents showed that policies vary between agencies. The ACLU said the documents show "pervasive and frequent violations of Americans’ privacy rights."
benton.org/node/119452 | Hill, The | National Journal
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LABOR

SAG-AFTRA MERGER
[SOURCE: Los Angeles Times, AUTHOR: Richard Verrier]
Creating Hollywood's largest entertainment union, members of the Screen Actors Guild and the American Federation of Television and Radio Artists have voted overwhelmingly to combine into a single bargaining unit. In an resounding show of support, SAG members voted 82% in favor of the merger, while AFTRA members voted 86% in favor. That was well above the 60% threshold needed for the combination to take effect. SAG represents 125,000 actors, extras and stunt performers in movies and television shows. AFTRA has about 70,000 members who are actors as well as singers, dancers, disc jockeys, sports announcers, comedians and broadcast journalists, among others. About 40,000 people hold membership in both labor groups. The historic vote comes nearly two years after union leaders began discussions to merge in a bid to gain more leverage in contract negotiations with studios and to end a long history of jurisdictional disputes and feuding over negotiating strategy. Under the plan, the new consolidated union will be called simply SAG-AFTRA. National officers, including the president and secretary-treasurer, would be elected directly by members. However, some other positions, such as an executive vice president, would be elected by delegates at a convention held every two years -- a concession to AFTRA's tradition of using conventions and delegates. SAG elects its officers directly by a vote of members.
benton.org/node/119465 | Los Angeles Times
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HUFFINGTON POST SUIT TOSSED
[SOURCE: Reuters, AUTHOR: Jonathan Stempel]
America Online (AOL) won the dismissal of a lawsuit by unpaid bloggers who complained they were deprived of their fair share of the roughly $315 million that the company paid last March to buy The Huffington Post website. U.S. District Judge John Koeltl rejected claims by social activist and commentator Jonathan Tasini and an estimated 9,000 other bloggers that they deserved $105 million, or about one-third, of the purchase price. The lawsuit contended that the work of unpaid content providers like bloggers gave The Huffington Post much of its value, and that the website's sale allowed co-founder Arianna Huffington to profit at their expense. Tasini said he alone had made 216 submissions to the website over more than five years. But Judge Koeltl said "no one forced" the bloggers to repeatedly provide their work with no expectation of being paid, and said they got what they bargained for when their works were published. "The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open," the judge wrote. Judge Koeltl also dismissed claims that AOL materially misled the bloggers about how often their works were being viewed, and how much revenue they were generating. He dismissed the case with prejudice, meaning it cannot be brought again.
benton.org/node/119461 | Reuters
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POLICYMAKERS

FTC COMMISSIONERS CONFIRMED
[SOURCE: Federal Trade Commission, AUTHOR: Press release]
Federal Trade Commission Chairman Jon Leibowitz and Maureen K. Ohlhausen were confirmed by the U.S. Senate on March 29 to serve as Commissioners of the FTC.
Leibowitz was first appointed to the Commission in 2004 and was designated by President Barack Obama to serve as Chairman in 2009. As Chairman, he has worked to stop scams that prey upon consumers suffering from the economic downturn, protect consumers' privacy – especially on the Internet, preserve competition in healthcare and restrict anticompetitive "pay-for-delay" patent settlements in the pharmaceutical industry, and promote competition and innovation in the technology sector through law enforcement and policy initiatives. Leibowitz is a graduate of the University of Wisconsin and the New York University School of Law.
Ohlhausen has been a partner at Wilkinson Barker Knauer, LLP since 2009, focused on privacy, data protection, and cybersecurity. She previously served for 11 years at the FTC, most recently as Director of the Office of Policy Planning from 2004 to 2008, leading the FTC's Internet Access Task Force, and formerly was an attorney advisor for former Commissioner Orson Swindle. Earlier in her career, Ohlhausen worked at the U.S. Court of Appeals for the D.C. Circuit as a law clerk for Judge David Sentelle, and clerked for Judge Robert Yock of the U.S. Court of Federal Claims. She is a senior editor of the American Bar Association Antitrust Law Journal and has taught privacy law and unfair trade practices as an adjunct professor at George Mason University School of Law. Ms. Ohlhausen is a graduate of the University of Virginia and George Mason University School of Law.
benton.org/node/119459 | Federal Trade Commission | The Hill
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FTC ANNUAL REPORT
[SOURCE: Federal Trade Commission, AUTHOR: Press release]
Federal Trade Commission Chairman Jon Leibowitz released the agency’s 2012 Annual Highlights. The Highlights focus on the FTC’s work in multiple areas since March 2011, including online privacy, consumer fraud during the economic downturn, health care competition, and safeguarding children.
The Highlights call to attention the FTC’s work in 10 broad categories, including:
Protecting Consumer Privacy: The FTC continues to raise the profile of privacy practices – online and off - through law enforcement, consumer education, and policy initiatives.
Fighting ‘Last Dollar’ Fraud: The FTC is stopping scammers who take advantage of the nation’s most financially fragile consumers through deceptive mortgage servicing practices, abusive debt collection tactics, bogus credit repair services, sham mortgage, tax, and debt relief offers, and fraudulent job and business opportunity schemes.
Promoting Competition in Health Care and Containing Costs of Prescription Drugs: The Commission works to prevent anticompetitive conduct and mergers involving the health care sector, from hospitals to pharmaceutical companies. One of the FTC’s top priorities continues to be restricting anticompetitive “pay-for-delay” patent settlements.
Trending in Technology: Nearly 100 years of experience gives the FTC a unique perspective when it comes to anticipating and evaluating new technology, and using appropriate measures of enforcement, education, and public engagement to address evolving markets and business models.
benton.org/node/119444 | Federal Trade Commission | see the report
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RESEARCH

FIVE MYTHS AND LESSONS
[SOURCE: Brookings Institution, AUTHOR: JP Singh]
Information and communications technologies are now indispensable for development, prioritized through varying levels of market-driven measures and participatory politics. From international organizations to local administrations, the importance given to these technologies for development today is a counterpoint to the immediate post-colonial era when telephones were considered a luxury and nationalized radio broadcasting was used for bringing “modern” ideas to populations. Along with policy changes, the move toward market forms works to ensure that people have phones and access to communication infrastructures, in turn providing incentives for entrepreneurs and political brokers to develop applications for delivery of social services and provide alternatives to users who in an earlier era lacked even basic access to these technologies. Information technology diffusion rates can be quite spectacular. Only one in a thousand people had a mobile phone in 1995 in low-income countries. Now more than 25 in a thousand people do. Social media and the Internet have revolutionized political participation globally and provided voice and solidarity to communities. In January 2008, a 33-year-old civil engineer from Bogotá used a Facebook page to organize a protest in 40 countries against the paramilitary group FARC, gathering over 12 million people. The digital divide is not fully bridged, but the exponential growth rates of political voice and telephony promise a bright future. What lessons can policymakers learn from the last 60 years of deploying communication technologies for development? Looking beyond the growth rate numbers suggests processes that either need to be continued or encouraged, but also fine-tuned at micro levels to address demands.
Encouraging Markets: Ensure regulatory independence and market incentives for providing access to infrastructures. Problems remain with corruption among officials and private firms, which calls for independence of regulatory agencies and dispute resolution, as well as smart policies to incentivize delivery in underserved areas.
Developing Polycentric Policymaking: Direct, top-down development interventions do not work effectively. International civil-society and international governmental organizations are best served as knowledge brokers and facilitators of information exchanges.
Allowing Participation and Voice: Locate political spaces for participation and voice. Development interventions tend to be expertise driven and top-down; however, it is not difficult to provide synergies between development aspirations and local contexts.
Understanding Representation: Allow people to represent themselves over various forms of audio-visual media. Old paternalistic habits are still too controlling, even as new social media defy this logic.
Prompting Ingenuity: Encourage technological and business entrepreneurship that enables political voices, social services delivery and micro-level efforts.
benton.org/node/119442 | Brookings Institution
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NEWS FROM ABROAD

EUROPE OPENS PATENT INVESTIGATION
[SOURCE: New York Times, AUTHOR: James Kanter]
The European Union’s competition office on April 3 opened two antitrust cases against Motorola Mobility for possibly abusing its patents following complaints by two rivals, Microsoft and Apple. The cases are the latest stage in what has become a full-blown battle over the ownership of essential technologies that help power mobile and gaming devices, a fight that has engulfed Google and virtually all the other major players in the industry. The European Commission opened two cases to look at separate allegations by Microsoft, which is concerned about access to video and wireless patents for its products including the Xbox, and by Apple, which is concerned about access to other wireless patents for the iPhone and iPad. Microsoft and Apple complained to the commission that they were victims of unfair licensing conditions and abusive litigation by Motorola Mobility. The investigation will look at whether “Motorola has failed to honor its irrevocable commitments made to standard-setting organizations” to license its technologies to other companies on fair, reasonable and nondiscriminatory terms, the commission said.
benton.org/node/119454 | New York Times
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