Public Knowledge

The set-top box fight may be shaping up to be a prime example of how policymakers who don't want to anger their constituents can protect corporate interests without ever having to officially come out against consumers. You just delay a regulatory process so that the clock runs out and the Federal Communications Commission doesn't have the opportunity to vote to explode the set-top box monopoly.

This summer, and even now, we've seen the elements of this strategy play out. After FCC Chairman Tom Wheeler proposed rules to eliminate the set-top box monopoly and hundreds of thousands of consumers cheered the effort, House Representatives passed a spending bill prohibiting the FCC from completing new rules in 2016. Soon after, the Senate Appropriations Committee did something similar. Of course, they never outright said that they're against competition or more choices for consumers; they just label the issue as "very complicated," or they “have concerns,” or just say whatever they can think of to justify telling the FCC to take more time and not end this consumer rip-off in 2016. So here we are, either two weeks away from the FCC finally moving forward to break the cable box monopoly, or another delay. Stay tuned to see what happens, or dive right in and help us peel back the disinformation and stealth by demanding FCC action and no Congressional interference!

[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 Ninth Circuit issued a fairly important decision limiting the authority of the Federal Trade Commission (FTC). Unfortunately, certain articles, combined with some overwrought commentary, have generated a lot of confusion. To summarize:
1) This has nothing to do with the Federal Communications Commission’s determination to reclassify broadband as Title II. The court was extremely explicit on this point.
2) There is no “gap in consumer protection” for broadband services – unless Congress or a future FCC reverses the Title II determination. As long as broadband remains a Title II service, the FCC can protect consumers from bad behavior by broadband service providers.
3) Beyond the broadband world, the case has fairly broad and uncertain applications. Arguably, Google could escape FTC jurisdiction by owning Google Fiber, and Amazon could escape FTC jurisdiction by registering its truck fleet as a common carrier freight company regulated by the FMCSA.

Ultimately, however, this case creates real problems for consumer protection by creating significant concerns about the FTC’s authority in a world where large corporations often engage in multiple lines of business – some of which may have “exempt status” under Section 5(a)(2). Hopefully, the FTC will seek review by the full Ninth Circuit, which would be wise to overturn this unfortunate case.

Public Knowledge, along with other public interest organizations [including the Benton Foundation], filed reply comments in response to the Federal Communications Commission’s Further Notice of Proposed Rulemaking on competition in the high-speed broadband “business data services” (BDS) market.

The record in the FCC’s BDS proceeding shows what observers have long known -- that the BDS market is overwhelmingly monopolistic and warrants increased FCC oversight. Incumbent BDS providers possess immense market power and use it to inflate prices, costing businesses, non-profits, community anchor institutions, wireless carriers, and local governments tens of billions per year in excess BDS charges. Ultimately, these costs are borne by all consumers and taxpayers. After a decade-long proceeding and the largest data collection in the history of the FCC, it’s now time for the agency to take action to reform the BDS market by promoting competition and protecting consumers, who bear the heavy burden of these costs.

Twice broadband providers have looked to the DC Circuit to stop net neutrality rules. Twice they have been told that a Title II based framework is the correct way to have strong rules and the FCC is empowered by Congress to do so. Now these trade groups are asking the DC Circuit yet again. There is broad consensus support for strong net neutrality rules, making this just another doomed attempt for trade groups to ignore millions of Americans. It’s time for these trade groups to move on -- net neutrality is here to stay.

[Commentary] The Lifeline program is essential to the public safety sector because it increases access to public safety communications by equipping more low-income users with traceable service-initialized cellphones. Lifeline is crucial to ensuring that all Americans, even those from low-income communities, can contact 9-1-1 during an emergency - regardless of their location. Furthermore, if a caller does not know his or her location, but calls from a service-initialized cell phone, the 9-1-1 dispatcher can contact the cell carrier and request a trace of a subscriber’s GPS coordinates. That information can aid a dispatcher in dispatching emergency services to an exact and precise location. During the critical moments of an emergency, time is of the essence and sometimes a rapid response can mean the difference between life and death.

It is essential that the Lifeline program remain intact, as equipping more people with cell phones greatly expands the accessibility of public safety communications, particularly to low-income communities.

Beginning July 19, T-Mobile is offering a limited-time promotion tied to the wildly popular augmented reality game Pokémon GO, in which the mobile data used by the game will not count toward a customer’s data cap. This is yet another form of zero-rating, a practice that can raise serious concerns about competition policy, network neutrality, and consumer choice.

Amidst a global Poké-craze, we shouldn’t lose sight of what this may portend for the future of the open Internet. So we want to take the opportunity to raise a number of questions about this promotion which would also be important to answer for any other zero-rating service proposal. Before concluding anything about this promotion or any similar plans that may be proposed, it is important to better understand their potential dangers and benefits. Whether or not the zero-rating of Pokémon GO constitutes an unreasonable interference or disadvantage, it at least raises important questions that deserve close and immediate scrutiny.

[Commentary] The idea is simple: consumers should be allowed to choose which device they want to use to access their content. Because of the current business model of most cable companies, consumers and content creators alike are not able to access programming distribution the way they wish to. And because cable companies currently enjoy the control of the experience while profiting from the deficiencies in the system, they want to keep it that way.

Communities of color are thirsty for content in the mainstream media that resonates with them. Just as in the network neutrality debate, communities of color and their advocates are fighting for more consumer choice and access. The Federal Communications Commission’s proposal will loosen pay-TV’ grip on innovation and encourages minority content makers, small and independent companies, new entrants, and existing developers to market their apps and devices nationwide instead of cutting exclusive, limited deals. A new technology standard could allow consumers to access their cable network, pay-TV, and over-the-top content all in one place. More importantly, the proposal will allow minority programmers to tell their own stories to whomever chooses to access it, regardless of whether Big Cable wants to carry it. It’s time to let the FCC free the chained consumer choice. The future of TV depends on it.

Public Knowledge condemns this latest attempt to hijack critical funding legislation with dozens of provisions that will actively harm Americans, generally dislodge government processes, and once more take aim at the Federal Communications Commission's ability to do its job.

The anti-set-top box language is particularly egregious. The Commission’s current proceeding has been mandated by Congress for 20 years and would relieve millions of consumers of rental fees they currently pay to Big Cable for their set-top boxes. These fees total around $20 billion a year, and consumers have no choice but to pay. The bill also contains three unnecessary provisions intended to scale back the FCC's network neutrality rules, a victory for consumers lauded by millions of Americans. These misguided attacks on the FCC's ability to protect consumers and ensure an open internet fly in the face of the will of Americans nationwide. We are hopeful that moving forward, Congress will reject any bill burdened with language that conflicts with its duty to act in the best interests of the American people.

Public Knowledge and the Open Technology Institute filed a Petition to Deny asking the Federal Communications Commission to stop the merger between Comcast and Time Warner Cable.

The groups demonstrate that the FCC typically analyzes large broadband and cable mergers through the lens of distribution. If it buys Time Warner Cable, Comcast would have about a 50 percent share in the market for truly high-speed residential broadband distribution.

This would make Comcast the most dominant communications company in the United States since the breakup of the Bell System. Under its public interest standard, the FCC cannot permit a single company to have such control over the marketplace.

“The FCC needs to stop this merger. The tough questions the FCC has already put to Comcast show that the agency is skeptical that this merger serves the public interest,” said John Bergmayer, Senior Staff Attorney at Public Knowledge.