So the proposed Comcast/NBC merger was met with “skepticism” by Washington politicians. Will Comcast charge for content that was once free? Will it ensure that emergency programming gets through? These services and decisions about them are normal offerings that a concerned public expects; a merged entity ignores them at its peril.
The two firms’ CEOs respectively made assurances to lawmakers like 18-term term Chairman Henry Waxman. (Speaking of the lack of choice, this gentleman’s own constituents get to vote for him, but none of the rest of us have any say whatsoever–decade after decade–even though his laws impact us all).
But those assurances about programming aren’t what politicians care about, not really. This proceeding serves to help re-energize the old political campaign against what politicians laughably call “media consolidation.” (Here’s one of my defenses of so-called “media monopoly” in Communications Lawyer so no need to repeat it here now; I’m not an attorney but I play one at a think tank.)
Any antitrust intervention that relieves Comcast/NBC’s competitors of critical market impulses, of the driving need to respond to any potentially new superior service or slate of services, hurts the interests of consumers. These endless proceedings and delays–and before this one, those of Echostar/DirecTV, Sirius/XM and others–all directly harm consumer interests and the communications marketplace. There is too much tolerance of pointless FCC and Congressional interference in today’s media-saturated world, and too much tolerance of media competitors who properly should have no say whatsoever in whether or not a rival’s merger goes forward.
Basically, antitrust is about dismantling what others have created or hope to create, undermining large scale voluntarism and enterprise, and replacing it with even larger scale compulsion or prohibition. The (not “unintended,” as often claimed) result of this is to send the “free” market careening off into a direction it never would have taken, a direction in defiance of shareholder capitalism and market pressures. I wrote about this very problem in a letter in the Wall Street Journal last week.
The emergence of ever-greater competitive alternatives on the media horizon will be damaged by the destruction of wealth entailed in halting a productive merger. The merger, if it goes through, may or may not prove successful for the companies themselves. Regardless, it is precisely the market’s task to respond to this and future deals competitively, not leverage Washington to avoid having to engineer and sweat over such a response. To those rivals that might feel satisfaction at the barriers and future conditions put on this merger if it’s even “approved” (how is that even a term appropriate to free enterprise?): Political disapproval of Comcast/NBC makes it even easier to put others in the crosshairs next time.
Ken Ferree, former chief of the FCC’s media bureau and PFF’s recently retired president (now Board member), has penned another devastatingly witty piece slamming the FCC’s recently announced inquiry into “the future of media and information needs of communities in a digital age” as something that,
should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC’s claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.
The problem is that the very act of initiating such an inquiry will chill protected speech; government inquiry into what is and is not working in the area of news, information, and media is itself an affront to the First Amendment. And it is no answer that the Commission has embarked on this journey with beneficent motives, it has no power to derogate from the protections of the First Amendment in the name of what one group of bureaucrats may think are important government interests.
Can there be any doubt but that any category of speakers that are even indirectly regulated by the FCC will be mindful of this new inquiry and will curb the nature of their conduct and communications in light of it? What great potential for mischief the FCC has spawned merely by initiating this little inquiry! Regulation by “raised eyebrow” has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the Commission has taken the concept to a level heretofore unknown – this inquiry is regulation by penetrating leer.
The rest of the piece is well worth reading. But of course, the FCC will continue on their merry way anyway presuming neither their their complete lack of jurisdiction nor the First Amendment prevents them from “merely asking questions”—as with asked open-ended questions about things like cloud computing, online privacy (a slightly different matter) and online content controls that don’t come anywhere near the agency’s jurisdiction. Adam and I will be filing comments on the “Empowering Parents” inquiry questioning this “questioning.”
http://blog.pff.org/archives/2010/02/a_chill_wind_blows.html
I testified this morning in the House Energy and Commerce Committee’s Subcommittee on Communications, Technology, and the Internet at a hearing titled, “An Examination of the Proposed Combination of Comcast and NBC Universal.” Among those testifying were Comcast Chairman and CEO Brian L. Roberts, and NBC Universal President and CEO Jeff Zucker. Down below I have attached my brief remarks (we only had 5 minutes), but see the Scribd doc at the very bottom to also see the embedded charts. I also wrote a paper about the proposed deal back in December entitled, “A Brief History of Media Merger Hysteria: From AOL-Time Warner to Comcast-NBC” as well as this editorial for Forbes.
____________
Mr. Chairman and members of the Committee, thank you for inviting me here today. My name is Adam Thierer and I am the President of The Progress & Freedom Foundation (PFF).
Although we are still early in this process, there has already been a great deal of hand-wringing and even some dire predictions about the pending merger of Comcast and NBC Universal. I hope to put this proposed marriage in some historical context and explain why the deal certainly won’t have the detrimental impact some critics fear, and also explain why it might even be one potential model for how to sustain traditional media going forward.
Beware Media Merger Hysteria
First, let’s remember that we’ve been here before. Paranoid predictions of a media apocalypse have accompanied the announcements of many previous media mergers, from AOL-Time Warner to News Corp.-DirecTV to XM-Sirius.[i] In these cases and almost all others, however, the “sky is falling” claims proved to be greatly overstated.[ii] The only “harm” that one could reasonably claim came from those mergers was not to consumers or content providers, but to the merging firms themselves and their shareholders. That’s because many mergers simply fail to create the sort of synergies and benefits originally hoped for and consequently die of natural causes over time.
Other firms, however, have found ways to make deals work and deliver important new services that previously were unimaginable or simply too expensive to offer alone.[iii] Regardless, the point here is that we’ll never know what works unless we permit marketplace experimentation with new and innovative business models. Continue reading →
Just FYI… This Thursday, February 4th at 9:30 am, the House Commerce Committee Subcommittee on Communications, Technology, and the Internet will hold a hearing titled, “An Examination of the Proposed Combination of Comcast and NBC Universal.” It will be held in 2123 Rayburn House Office Building and the Committee members were kind enough to ask me to come up and say a few words. Here’s the witness list:
- Brian L. Roberts, Chairman and CEO, Comcast Corporation
- Jeff Zucker, President and CEO, NBC Universal
- Colleen Abdoulah, President and CEO, WOW! Internet, Cable, and Phone
- Mark Cooper, Ph.D., Director of Research, Consumer Federation of America
- Michael J. Fiorile, President and COO, The Dispatch Printing Company, Chair of the NBC Affiliates Board
- Adam D. Thierer, President, Progress and Freedom Foundation
For those interested, the hearing will be webcast at www.energycommerce.house.gov. There’s also another hearing Thursday on the same issue over in the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights. It’s titled, “The Comcast/NBC Universal Merger: What Does the Future Hold for Competition and Consumers?” and it will take place in the Dirksen Senate Office Building, Room 226 at 2:30 p.m.
Incidentally, I wrote a paper back about the proposed deal back in December entitled, “A Brief History of Media Merger Hysteria: From AOL-Time Warner to Comcast-NBC” as well as this editorial for Forbes.
The Annenberg School at the University of Southern California recently released a paper by Geoffrey Cowan and David Westphal entitled, “Public Policy and Funding the News.” In it, Cowan and Westphal join the growing chorus of voices advocating a substantial role of government in propping up struggling media entities or investing in news production going forward.
I can’t say that I disagree with everything in the report, especially the contention that many traditional news-gathering institutions face serious challenges to their survival. But as I have noted here before, there are three big problems with recommendations to greatly expand the role of government in the media sector or journalistic profession as a solution:
- While public media & subsidies may have a role, that role should be tightly limited and focused on filling specific niches or unfilled needs within certain communities. Public subsidies should not be viewed as a replacement for traditional private media sources. Moreover, public subsidies will not begin to make up the shortfall from traditional private funding source, unless we plan on having Congress spend hundreds of billions of dollars (like the radical regulatory advocates at Free Press advocates) to subsidize news.
- If we do end up taking that path, it will raise profound fairness questions since it will leave taxpayers footing the bill for things they might not want or could find objectionable, even offensive. (Conservatives wouldn’t like funding Bill Moyers, and liberals wouldn’t be too keen on supporting Rush Limbaugh).
- Any plan to have government step up its role in supporting journalism will raise profound questions about press independence and threaten core First Amendment values. Putting journalists on the public dole is a serious threat to the integrity of the profession.
Continue reading →
For those of you inclined to read protracted legalese filings, NBC Universal, Comcast and GE submitted their Public Interest Statement to the FCC this week. You can read the filing here.
Many conspiracies have been touted, claiming that public control of communication mediums will be wrested away from the public because of this venture and that consumers stand to lose the most. Adam did a good job debunking these concerns earlier this month. The fact is that this merger in no way would result in the dreaded “M” word, aka monopoly.
Whatever the case, this process is still bound to take another year or so before finalization, which gives you, dear reader, time to process the entire 145 page document. Happy reading!
Catching up on some magazines while waiting for my car to pass its annual emissions test the other day, I came across an article on cable TV bundling. Not too long ago, the issue of cable TV multichannel packaging–and whether cable companies should be required to offer channels “a la carte,” allowing customers to pick and choose the channels they watch–was a hot issue. Former FCC Commissioner Kevin Martin pushed heavily for it, even though the FCC’s own research, and later as some real-world market trials, found that a la carte options would not gain market traction.
The article nicely summed up the reasons.
The simple argument for unbundling is: “If I pay sixty dollars for a hundred channels, I’d pay a fraction of that for sixteen channels.” But that’s not how a la carte pricing would work. Instead, the prices for individual channels would soar, and the providers, who wouldn’t be facing any more competition than before, would tweak prices, perhaps on a customer-by-customer basis, to maintain their revenue. That doesn’t necessarily mean that Bravo would suddenly cost fifteen dollars a month, but there’s little evidence to suggest that a la carte packages would be generally cheaper than the current bundles. One recent paper on the subject, in fact, estimated the best-case gain to consumers at thirty-five cents a month. But even if it wasn’t a boon to consumers an a la carte system would inject huge uncertainty into the cable business, and many cable networks wouldn’t get enough subscribers to survive. That’s a future that the industry would like to avoid.
Continue reading →
At the “State of the Net” conference this morning, Alan Murray of The Wall Street Journal interviewed Brian Roberts, Chairman & CEO of Comcast. Here are some highlights. [You can follow all of my live Tweeting at: @AdamThierer]
- Stresses synergies from combination of Comcast cable channels & NBC broadcast properties (ex: Golf Channel & NBC Sports)
- Program access rules “should give fair amount of comfort” to critics who fear that content will be withheld
- “Businesses have to transform & reinvent themselves all the time” NBC part of that transformation for Comcast
- Internet is more friend than foe; broadband has transformed the business for the better
- Businesses grappling w/ ways to extend traditional services to consumers in new ways & still make $$$ (ex: TV Everywhere)
The left-leaning Air America Media radio network announced it was ceasing operations immediately today. It had been struggling for many years and appeared headed under many times before before being bailed out by various people. No doubt, many conservatives will rush to claim that the death of Air America is a sign that the political right is resurgent in America and that progressive viewpoints no longer have an audience. But I would beg to differ.
Don’t get me wrong, I was no fan of Air America. But the reality is that over-the-air terrestrial radio is an aging media platform that generally appeals to a more conservative-leaning and religious-oriented audience. That’s the primary reason conservative pundits like Rush Limbaugh and Sean Hannity are so dominant on the dial. Meanwhile, however, progressive voices have flocked to cyberspace and established a strong foothold here with an amazing array of blogs and websites dedicated to advancing their vision. Although conservatives have made some amazing strides online in recent years, they are still struggling to catch up with the likes of The Huffington Post, Daily Kos, and so on.
So, while many on the Right will be licking their chops today giddy with delight about the demise of Air America, the real question is: will they be able to catch up to the Left in cyberspace? Because Rush, Sean and talk radio ain’t gunna be around forever.
Of course, as a libertarian who has never once voted for a Democrat or Republican in my life, I really don’t give a damn who wins. We fans of real freedom — across-the-board economic and personal freedom, that is — have no media platform to call our own.
by Adam Thierer & Berin Szoka, Progress Snaphot 6.1
Stephanie Clifford of the New York Times posted a very interesting article this week summarizing a recent “on-the-record chat” the Times staff had with Federal Trade Commission (FTC) chairman Jon Leibowitz and FTC Bureau of Consumer Protection chief David Vladeck. The interview [discussed by Braden here] is profoundly important in that it reveals an alarming disconnect regarding the relationship between “privacy” regulation and the future of media, which were the subjects of their discussion with Times staff. Namely, Leibowitz and Vladeck apparently fail to appreciate how the delicate balance between commercial advertising and journalism is at risk precisely because of the sort of regulations they apparently are ready to adopt. Because the value of online advertising depends on data about its effectiveness and consumers’ likely interests, and because advertising is indispensable to funding media, what’s ultimately at stake here is nothing short of the future of press freedom.
The “Day of Reckoning” Is Upon Us
Leibowitz and Vladeck spend the first half of The Times interview wringing their hands about “privacy policies,” the declarations made by websites and advertising networks about their data collection and use practices (for which the FTC can and must hold them accountable). But the two feel that privacy policies don’t adequately inform consumers. Chairman Leibowitz claims that online companies “haven’t given consumers effective notice, so they can make effective choices.” And Mr. Vladeck states that advise-and-consent models “depended on the fiction that people were meaningfully giving consent.” But he and the FTC seem ready to abandon the notice and choice model because the “literature is clear” that few people read privacy policies, Vladeck told the Times. He and Leibowitz continue:
“Philosophically, we wonder if we’re moving to a post-disclosure era and what that would look like,” Mr. Vladeck said. “What’s the substitute for it?” He said the commission was still looking into the issue, but it hoped to have an answer by June or July, when it plans to publish a report on the subject. Mr. Leibowitz gave a hint as to what might be included: “I have a sense, and it’s still amorphous, that we might head toward opt-in,” Mr. Leibowitz said.
This clearly foreshadows the regulatory endgame we have long suspected was coming. When the FTC released its “Self-Regulatory Principles for Online Behavioral Advertising” eleven months ago, we asked: “What’s the Harm & Where Are We Heading?” Their answers to both questions have become clearer with each new calculated comment—all apparently intended to slowly “turn up the heat” on the advertising industry so that the proverbial frog will stay in the pot until the water finally boils. Leibowitz’s FTC has simply dodged the “harm” question with a four-part strategy: Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.