John Bergmayer

This paper recommends that dominant online platforms be required to provide their users with “due process,” that is, procedural protections that ensure fairness, when the platforms wish to take an action that may be detrimental to the user. It argues that the principles of due process are a way to ensure that individuals are treated fairly by large institutions -- whether they are public or private. It recommends a robust set of procedural protections adopted from leading legal scholars and proposes a way of determining "dominance" that is informed by the history of communications law.

The state of New York is suing Charter over alleged deceptive statements regarding internet speed. Public Knowledge submitted an amicus brief explaining the importance of broadband to consumers, and how consumers rely on accurate information from their broadband providers to make informed decisions. 

Despite the change in administration, the Federal Communications Commission has a law to abide by and an obligation to implement. Section 629 of the Communications Act is the law of the land, and it directs the FCC to ensure that consumers can choose from a competitive market for 'unaffiliated' devices that can access their complete cable TV or other pay-TV subscriptions. Ending the set-top box monopoly would bring the benefits of competition, including lower prices and better devices, to cable subscribers. Consumers currently spend about $20 billion a year for overpriced boxes they aren’t allowed to dump. They should be able to access online and cable programming in one integrated interface, boosting programming diversity and allowing access to alternative viewpoints. Despite the FCC’s recent efforts on this issue, the law has not been enforced and consumers continue to be burdened by a multi-billion dollar set-top box ripoff. Chairman Pai should continue the FCC’s work to bring consumers relief in this matter.

We understand that AT&T, since its purchase of DirecTV and its announced launch of a new online streaming service, is trying to position itself as a stronger competitor to cable. However, there are good reasons to be skeptical that further consolidation in the communications industry could be good for consumers.

Vertical integration between programming and distribution in particular raises a number of issues: DirecTV, for instance, might favor Time Warner content, crowding out or refusing to carry alternative and independent programming that viewers might prefer. AT&T might also make it more expensive or difficult for competitors to DirecTV or to its streaming service to access Time Warner programmer, hoping to drive customers to its own platforms. AT&T could also give preferential treatment to its own programming and services on its broadband networks--indeed, it has already announced that it plans to zero-rate its upcoming online video service. Increased vertical integration could also increase AT&T's opportunities for data collection, which has relevance to FCC privacy initiatives. Similar sorts of self-dealing and discrimination issues have been at the center of the review of similar deals in the past, such as Comcast's acquisition of NBC Universal. Ultimately, it would be AT&T's job to try to prove that this deal would benefit, rather than harm consumers and competition. Potential industry consolidation highlights why the Federal Communications Commission must move expeditiously to develop thorough privacy protections for consumers so that major industry players do not abuse the sensitive information they collect from the customers, and emphasizes the need for the FCC to vigorously enforce its Open Internet rules."

[Commentary] The Federal Communications Commission is required by law to promote competition in the TV set-top box market. Yet the fact that cable programming must be available on apps on competitive devices, on nondiscriminatory terms, is being framed as some kind of Federal Communications Commission overreach, or a "compulsory license," or as interfering with contracts or copyright.

But this is absurd -- especially considering that the apps-based approach is exactly what the cable and big content companies have been advocating for a while now. Neither copyright nor contract law work this way. Let's work through some aspects of the Chairman's app proposal.

[Bergmayer is a Senior Staff Attorney at Public Knowledge, specializing in telecommunications, Internet, and intellectual property issues]

[Commentary] The Aereo decision is bad news for consumers, since it could take away a promising new model for watching free over-the-air television. Cord-cutters still have options.

They can still access other online video services—and maybe some reconfigured version of Aereo -- and watch broadcast TV with an antenna. But there’s no doubt that the opinion (especially when considered alongside ivi and Sky Angel) is good for the network/affiliate/cable status quo.

Of course if you asked me on the record I would have told you that I was optimistic that a unanimous Supreme Court would simply adopt our brief. But like most observers I concluded that the Court was looking for a way to rule against Aereo but limit the collateral damage against the tech industry as a whole. Instead, the Court uses reasoning that could apply very easily to any number of online services -- file hosting, cloud lockers, even virtual private networks (VPNs) -- as well as services that no one has even come up with yet.

No, cable TV is not a network neutrality violation. Yet.

So I think it’s finally worth explaining the various reasons why cable TV, even when it’s carried on the same wire that also provides broadband, does not violate net neutrality.

It's not on the Internet.

Cable TV was there first. Yes, cable TV and broadband share the same wire. But it's not like bandwidth was taken away from the Internet to make room for TV. They are distinct services with a separate history.

Cable TV is separately regulated.

Cable TV meets the only reasonable definition of a "specialized service." The 2010 Open Internet rules had a broad exception for "specialized" or "managed" services.

Yet? It may be the case that someday soon, technology will improve to the point where one-to-many distribution does not offer a real advantage over one-to-one services. This may change the analysis for "same wire" services like cable TV. But we're not there yet.

Public Knowledge has been filing briefs in Aereo's lawsuits (and in related cases like Film On) since the beginning, but the beginning was only 2012.

The litigation has made it to the Supreme Court very quickly, and it's going to take some time to digest exactly how the Justices react to the various arguments that are presented (such as the arguments in our joint brief).

But it's worth thinking about what the implications of Aereo might be for various industries, now that the purely legal arguments have all been made. It's hard to believe the broadcasters when they say that Aereo will somehow take away their retransmission fees, and destroy their business model. How did they manage for so long -- from the middle of the 20th Century until just a few years ago -- without those fees? But even more to the point, the idea that Aereo will give cable systems a magic ticket that will enable them to stop paying the fees is a bit far-fetched.

After all, a cable system doesn't just need to carry ABC, but ESPN as well, which is under the same corporate umbrella. An Aereo win might give cable a bit more leverage against broadcast but they're still going to need to pay. T

he dollar totals around different line items might switch around but without much net effect. Instead, the consequence of an Aereo win will likely be more subtle: Aereo (and maybe services like it) that do not offer the complete cable package and are available online will continue growing, making it easier (when combined with content from other services like Amazon Instant Video) for people to "cut the cord" and do without a traditional pay TV subscription at all. Online services will find it easier to offer viewers the more flexible programming choices the marketplace has repeatedly demonstrated they want.