Media Regulation

Dead Air Walking: Prisoners Face Loss of TV After Digital Transition

by James Gattuso on September 8, 2008 · 10 comments

Haven’t they been punished enough? Inmates in our nation’s prisons may find themselves without over-the-air television next February, unless Congress acts to fill a gap in the subsidy program for TV converter boxes. That’s right: according to a story run last week by Associated Press, “the upcoming switch to digital television is presenting a challenge to prison officials who want to make sure prison TVs are up and running. When broadcasters make the switch in February, televisions that aren’t hooked up to cable, satellite or a converter box will be reduced to static”.

The reason? Under the converter box subsidy program established by Congress, prisons are not eligible for the $40 subsidy for the converter boxes needed to let old televisions pick up broadcast signals after next February. That means — unless prison officials somehow find $40 elsewhere — or unless their penal institution has a cable or satellite subscription — incarcerated murderers and thieves will be forced to watch static.

Honest to god. I’m not making this up. This was an actual news story. The AP story went on to explain that “[w]hile TV might seem like an undeserved luxury for inmates, both prison officials and prisoners said the tube provides a sense of normalcy.”

Oh, now I understand. “Normalcy.” I didn’t understand that prison is supposed to provide a sense of normalcy.

Excuse me while I sit in stunned silence for a moment.

One interesting side note. I found the AP story on the website of WYFF in Greenville, SC, which — perhaps not surprisingly — is an over-the-air TV station. Go figure.

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Summary of Martin’s ‘War on Cable’

by Adam Thierer on September 2, 2008 · 8 comments

When the definitive history of Kevin Martin’s regulatory reign of terror against the cable industry is finally written, I have a feeling that Ted Hearn of Multichannel News will be the man who pens it. There is no one who has been reporting on these issues longer or with more investigative vigor than Ted. In an absolutely scathing piece today about a former Martin staffer, Ted does a nice job summarizing the major elements of Martin’s war on cable. It reads like the list of grievances against King George found in the Declaration. (Think: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.”) Anyway, I just thought I’d throw Ted’s list up here for those keeping score at home:

— He secretly rewrote an FCC study issued in November 2004 that had concluded that cable a la carte was a bad idea.

— He walked away from a handshake agreement with NCTA, Comcast and Time Warner that the rollout of family programming packages would end his a la carte jihad.

— He stripped cable’s control over critical wiring in apartment buildings, affirming the identical policy that a court had previously struck down.

— He voided exclusive contracts between cable operators and apartment building owners just a few years after the FCC gave the green light to such deals.

— He required cable operators to carry must carry TV stations in analog and digital for three years after voting against such a policy in February 2005.

— He extended program access rules for five years, a gift to DirecTV and Dish Network even though the two satellite providers are larger than every cable company in the U.S. except Comcast and Time Warner.

— He imposed expensive set-top box equipment mandates on cable, making it vastly more costly for Comcast and Time Warner to reach the goal of all-digital platforms.

— He capped cable ownership at 30% of pay-TV subscribers nationally—the same limit that a federal court kicked back to the FCC as unlawful—while letting AT&T and Verizon basically divide the country’s phone market.

— He slashed cable leased access rates to zero in an act of bureaucratic malice that a federal appeals court has now blocked and that the Office of Management and Budget has rejected as a violation of the Paperwork Reduction Act.

— He decided to brand Comcast an Internet outlaw when all the company did was occasionally frustrate a tiny minority of customers whose massive consumption of Web porn and pirated Hollywood films was destroying the service for others.

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Another 4 months, still no FCC Video Competition Report

by Adam Thierer on August 30, 2008 · 11 comments

Well, another four months have passed since I last asked this question, but let me pose it again: Where exactly is the FCC’s Video Competition Report and why is it taking so long to get it out the door? It wouldn’t have anything to do with a certain Chairman Ahab still trying to get his cable whale, would it? No, of course not. I’m sure there’s a perfectly rational reason that this 13th Annual report is now something like 18 months past due altogether. Right.

And keep in mind that the data in the 13th report is for a period ending on June 30, 2006, so whenever the report finally comes out the data in it will be well over two years old! That won’t exactly reflect the true state of the video programming market considering the significant changes we have since that time, especially the continued explosive growth of online video, VOD, and DVRs.

The reason that I have been making a big deal out of this issue is because this gets to the question of just how “scientific” and “independent” of an agency the FCC really is. We are talking about facts here. Basic data. This is stuff the FCC should be routinely collecting and reporting on a timely basis — indeed that is what Congress requires the agency to do in this specific case. And yet the agency can’t do it because its Chairman is on this Moby Dick-like crusade against the cable industry. By the time this 13th annual report finally sees the light of day, the 15th annual report might be due! Outrageous. (And you wonder why many of us here are so skeptical about empowering the FCC regulating the Internet via Net neutrality mandates! If an over-zealous Chairman can politicize this issue, just think what might happen once we give the agency the authority to regulate the Net.)

Anyway, down below you will find the paper that Barbara Esbin and I wrote about the issue four months ago. Perhaps we should place a little ticker somewhere here on the site that counts each day that passes as we wait for the Commission to produce this report. We can take bets on when the agency’s data holdout will end.
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11 comments

Is the Public Interest Standard Really a Standard?

by Adam Thierer on August 28, 2008 · 21 comments

Stephen Schultze is an up-and-coming technology policy analyst who is a fellow at the Berkman Center for Internet and Society at Harvard University. He is also finishing up his Masters of Science in Comparative Media Studies up at MIT. He’s been kind enough to stop by here at the TLF on occasion and comment on some of the things we have written — usually to give us grief, but we welcome that too! He’s very sharp and always has something of substance to say, and he says it in a respectful way. So I look forward to many years of intellectual combat with him. (Incidentally, we also share a mutual admiration for the work of Ithiel de Sola Pool, especially his 1983 classic, “Technologies of Freedom: On Free Speech in an Electronic Age , which I have noted is my favorite tech policy book of all-time.]

Anyway, Stephen has just posted his master’s thesis: “The Business of Broadband and the Public Interest: Media Policy for the Network Society.” It’s a noble attempt to defend and extend the “public interest” concept in the Digital Age. Stephen attempts to “identify the several dimensions in which it remains relevant today.” In his thesis, Stephen cites some of my past work on the issue since I have articulated a very different view on the issue. Specifically, he cites a line of mine that I have used in multiple studies and essays on the issue:

“The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.”

I stand by that quote and down below I have pasted a lengthy passage on the mythology surrounding the public interest standard, which I pulled directly from my old 2005 “Media Myths” book. It explains in more detail why I feel that way.

“Right now is a critical point of media in transition that will affect the shape communications ecosystem going forward,” Stephen states in his thesis. I couldn’t agree more, but I completely disagree that that somehow justifies breathing new life into a standard-less standard that justifies open-ended, arbitrary governance of the Internet and digital media. Read on to understand why I feel that way…
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The Wrong Way to Make Local Broadcasting Relevant Again

by Adam Thierer on August 15, 2008 · 7 comments

White women rapping. White women rapping traffic reports.

The horror. The horror.

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McCain’s Tech Policy a Mixed Bag at Best

by Berin Szoka on August 14, 2008 · 14 comments

Braden has noted the release of John McCain’s tech policy–rightly decrying McCain’s socialistic community broadband concept. But far more outrageous, in my view is this bit of doublethink. First, the good part we should all applaud:

John McCain Has Fought to Keep the Internet Free From Government Regulation

The role of government in the Innovation Age should be focused on creating opportunities for all Americans and maintaining the vibrancy of the Internet economy. Given the enormous benefits we have seen from a lightly regulated Internet and software market, our government should refrain from imposing burdensome regulation. John McCain understands that unnecessary government intrusion can harm the innovative genius of the Internet. Government should have to prove regulation is needed, rather than have entrepreneurs prove it is not.

Amen! Even a hardened Ron Paul/Bob Taft/Grover Cleveland/Jack Randolph-survivalist/libertarian-crank like me can rally behind that banner. But then this self-styled champion of deregulation pulls a really fast one:

John McCain Will Preserve Consumer Freedoms. John McCain will focus on policies that leave consumers free to access the content they choose; free to use the applications and services they choose; free to attach devices they choose, if they do not harm the network; and free to chose among broadband service providers.

That sure sounds nice, but it’s all Wu-vian code for re-regulation, not de-regulation. You might recognize that McCain is talking obliquely here about the FCC’s 1968 Carterfone doctrine, which has consumed much attention on the TLF (see this piece in particular).

McCain then insists that he will be a bold leader for “good” regulations: Continue reading →

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Blogger Freedom Re-Affirmed by FEC

by James Gattuso on August 14, 2008 · 6 comments

Some good news for bloggers. This was posted today on the Heritage Foundation “Foundry” blog by Dave Mason, former chairman of the FEC (Mason is now working with us at Heritage as a Visiting Senior Fellow):

“Bloggers and web site operators may support, oppose, link to, and work cooperatively with federal political candidates. This freedom was reaffirmed when the newly re-constituted Federal Election Commission released its first two enforcement cases August 12.

The Commission’s refusal to regulate blogging and internet sites is not new, but it is notable is that the pro-blogger decision was made within a week or two of the new Commission taking office. Of the scores of items on its docket, the new Commission chose to address this one first: quite likely because they wanted to send a signal to that bloggers are free to engage in politics

Specifically, the Commission said that Gordon Fischer, a former state political party chairman, did not violate election law when he maintained a web site and blog (Iowa True Blue) promoting Barack Obama and criticizing Hillary Clinton. (Our friends at CCP note that the complaint was filed by a Clinton supporter: observing that all too many FEC complaints are filed for political harassment

–Money that Fischer spent creating and maintaining the site was not regulated by the FEC.

–Even if Fischer coordinated (discussed the blog and postings) with the Obama campaign, the site remained free from Federal election regulation.

–A link to a campaign web site or video does not subject the site linking to the campaign to regulation.

–blogs and web sites may “republish” campaign material without violating election laws.

Bottom line: by making this case one of the first two it released, the Federal Election Commission reaffirms that bloggers and web site operators may support and oppose political candidates, republish or link to campaign material, and work as closely as they wish with campaigns in doing so.

The one activity that remains subject to FEC regulation is paying for an ad on someone else’s web site supporting or opposing a Federal candidate.”

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Rasmussen: Fairness Doctrine Supported by Nearly Half of all Americans

by James Gattuso on August 14, 2008 · 4 comments

An interesting poll out today by pollster Scott Rasmussen: Asked whether the government should require all radio and television stations to offer equal amounts of liberal and conservative political commentary, 47 percent — nearly half — said “yes.” (39 percent were opposed). Perhaps even more surprising, support has increased since last year, when Americans split evenly (41-41) on this issue.

Perhaps this shouldn’t be a surprise. Americans, after all, have long been lukewarm about the First Amendment, with opinion polls famously (though perhaps apocryphally) have long shown would itself be opposed by most Americans. Moreover, a casual answer to a pollster is a long way from active support of a particular law.

Still, the results of this poll should be troubling for defenders of free speech in general, and opponents of the fairness doctrine in particular. Although an explicit re-institution of the long-dead doctrine is still not likely, this poll underscores the general danger of other content controls that may achieve the same ends under a different name.

Oh, and those of you who get their news from blogs shouldn’t feel too cocky about the dangers faced by the old-fashioned broadcasters. The same Rasmussen poll showed that 31 percent of the public supports Fairness Doctrine controls on blogs, too.

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Media Deconsolidation (Part 23): Cox Selling Most of its Newspapers

by Adam Thierer on August 14, 2008 · 3 comments

My ongoing media DE-consolidation series represents an effort to set the record straight regarding one of the leading myths about the media marketplace today: the notion that rampant consolidation is taking place and that operators are only growing larger and devouring more and more companies.

Nothing could be further from the truth. Over the past 3 to 5 years, traditional media operators and sectors have been coming apart at the seams in the face of unprecedented innovation and competition. The volume of divestiture activity has been quite intense, and most traditional media operators have been getting smaller, not bigger. “Traditional media’s numbers are shrinking,” argued FCC Commissioner Robert McDowell in a recent speech. “The ironic truth is,” McDowell continued, that “in many cases, media consolidation has actually become media divestiture. Companies… have been shedding properties to raise capital for new ventures.”

And so that trend continues today with the announcement from Cox Enterprises that it will be selling almost all its newspapers. According to the The Atlanta Journal-Constitution:
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Why Google Is a Media Company

by Adam Thierer on August 11, 2008 · 14 comments

I used to get endless grief from pro-regulatory media activists here in DC when I put forward the argument in days past that Google was a media company and a major player in the battle for eyes, ears and ad dollars in America’s media marketplace. Increasingly, however, more people are coming around to seeing that point, even the crusty old media giants themselves.

In a smart essay over at the Freedom to Tinker blog, David Robinson takes the New York Times to task for an article today again wondering, “Is Google a Media Company?” As David rightly argues:
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