Media Regulation

Who Was That? BBC Interviews Wrong Guy

by on May 16, 2006

Last week, in a much-anticipated decision, a judge in London ruled that Apple Computer’s use of the Apple logo on its iPod did not violate an agreement with Apple Corp., a Beatles-owned music label. Its no doubt a fascinating intellectual property case, and I’ve no doubt that TLF’s Tim Lee willl cover it (and blame the DMCA for it somehow).

But the real interesting thing here isn’t the case, but BBC’s coverage of it a few days later. It seems that the British network’s News 24 channel had meant to interview Guy Kewney, the editor of newswireless.net, and an expert on the subject. Turns out though that, due to an inexplicable Green Room fiasco, the man actually interviewed, live on-air, was Guy Goma, a Congolese IT expert who was at the BBC’s office’s for a job interview.

The video tells the whole story. Mr. Goma’s face shows horror when he is introduced as Mr. Kewney. The first question: was he surprised by the verdict? Yes, he was surprised, he says, no doubt sincerely.

Meanwhile, the real Guy Kewney, back in the reception area, sees himself being interviewed on TV. Well, not him, but another Guy. (Kewney later recounted the story in his blog.)

Meanwhile, the interview goes on. And it turns out that Guy Gomo, despite a thick accent and precious little knowledge of the subject, actually does rather well, mumbling things about Internet cafes and the popularity of downloads.

There are no doubt lessons here about 24-hour news and the mistakes that format engenders. But as a policy wonk and occasional guest on similar shows, I felt an enormous empathy for Mr. Goma. Who hasn’t felt that nagging fear that the next question will be on a subject they know nothing about? And that they will nevertheless be expected to answer?

The whole episode should raise concerns, moreover, for the whole policy wonk community. After all, if journalists find they can get half-decent interviews from someone randomly plucked from their lobby, we may be out of a job.

Well, there’s always the blog.

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How Net Neutrality Regs Could Threaten Online High-Def Video

by on May 8, 2006 · 4 comments

Last week, Slate ran an article my friend (and frequent intellectual sparring partner) Tim Wu entitled “Why You Should Care About Network Neutrality.” Ironically, the best answer is not found not in Tim’s essay, but instead in this Slate article today by Sean Captain entitled “Forget YouTube: Your Laptop Will Never Replace Your TV.”

Captain’s essay laments the second-rate quality of today’s online video content & delivery systems and suggests some alternatives to improving the situation as high-definition offerings proliferate. As someone who appreciates the beauty of high-resolution (720p or 1080i) HDTV on the big screen in my house (I have a HD projector that beams a beautiful 8-foot picture on the wall), like Sean Captain, I am troubled by the quality of current Internet video offerings. I enjoy watching short Net films & videos on iFilm and other sites, but it pains me as I squint to see the tiny screen with its horrendous picture and frequent interruptions.

Consumers deserve better, and as the quality of the home theater experience continues to improve, they will demand it. Net neutrality regulation is not going to help bring it about. We need multiple business models and pricing plans to put the right incentives in place to deliver high-quality cyber-video.

Although I think I will always prefer watching a movies and shows on the big screen in my home, I might be willing to watch them on my wonderful Toshiba multi-media laptop if the feed was good enough. After all, the monitor on my laptop actually sports a higher resolution than any of the TVs in my home! So I’m itching to use it to its full potential, but right now about all I can get in terms of true high-def video online is the stuff over at Microsoft’s “WMV HD Content Showcase.” But it takes forever and a day to download that stuff. (Moreover, I can only take so many IMAX movies before I doze off from the boredom!)

If Net neutrality mandates are slapped on broadband service providers and they are prohibited from configuring or prioritizing Net traffic to accommodate higher-bandwidth video applications, the only other realistic alternative left is for them to charge consumers significantly higher fees for big bandwidth applications & content. Personally, I don’t have any problem with that. In fact, I think a metering solution may present the best way to solve this issue. But I think there are two obvious downsides: (1) Many consumers will cry foul and vociferously protest higher fees for higher-definition online video applications; and, (2) Policy makers will hear those cries and claim the metering of the pipe is unfair or will lead to a new “digital divide.” They might even suggest price regulation in response.

This is why I believe that Net neutrality regulation is worst than a solution in search of a problem. It is a problem in its own right in that it might forbid exactly the sort of marketplace experimentation and innovation we so desperately need today.

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Why Communications and Media Markets Will Probably Never Be Deregulated

by on May 5, 2006 · 20 comments

There was a time in my life when I was actually quite optimistic about the prospects for getting the heavy hand of government regulation out of telecommunications and media markets. This was around 15 or so years ago when I first started covering policy developments in this area. I’d go to work each day thinking that some day soon our lawmakers would come to appreciate the amazing technological and marketplace changes happening around us and then take steps to liberalize these markets, just as they had for other over-regulated sectors before (like airlines, railroads, banking, and so on).

That illusion was shattered one day long ago when a copy of the Federal Communications Bar Association (FCBA) directory first landed on my desk. The FCBA is the organization that was originally made up of the lawyers who practice telecom and media law. Since the early 1990s, however, many others (economists, consultants, lobbyists, engineers, etc.) have also been allowed to join. I don’t remember how many people were included in that first FCBA directory I saw years ago, but I just got the 2006 edition and it contains over 2,700 names. (And there’s also a huge directory of all the companies and organizations that cover these issues–including my own–included in the book).

Now don’t get me wrong; the FCBA is not some sinister group with nefarious intentions. Indeed, quite the opposite is the case. As I flip through the pages of the annual FCBA directory, I see the names of countless friends and even current and former work colleagues. I go to the annual FCBA dinner each year and hang out with these folks on a regular basis (even in my free time). They’re all good people. They have noble intentions. But the problem is that they all have different interests and the combination of those interests typically leads to the expansion of government control over the communications and media sectors.

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Some Thoughts on the New Senate Telecom Reform Draft

by on May 1, 2006 · 16 comments

Earlier today the Senate Commerce Committee released its eagerly awaited “staff working draft” aimed at reforming the Communications Act of 1934 and the Telecommunications Act of 1996. It’s tough to know where to begin evaluating this new 135-page monster, which is entitled the “Communications, Consumer’s Choice, and Broadband Deployment Act of 2006.” In true “everything-and-the-kitchen-sink” fashion, the measure tries to say a little bit about just about every aspect of modern communications and media law, and a whole heck of lot more about other issues not even found in the ’34 and ’96 Acts.

For example, you’ll experience your first “this-is-not-your-father’s-telecom-bill” moment when you open to page 4 and find that Title I is labeled “War on Terrorism.” There’s also a big subtitle dealing with copyright controversies and the so-called “video and audio flags.” There’s also a beefy section on “Sports Freedom” pertaining to local TV sports agreements. (Thank God our leaders are doing something to guarantee us our inalienable right to sports on TV!)

Again, that’s just SOME of the new stuff the bill takes on. There’s plenty more new rule-making authority found in the measure that would empower the Federal Communications Commission to deal with both new and old policy issues alike.

But instead of nitpicking about the trees here–I’m sure we’ll be doing plenty of that at PFF over the next few weeks–I want to instead step back and look at the forest for a moment. It seems to me that the fundamental problem with efforts like this Senate draft is that our lawmakers often get obsessed with working out the smallest details of complicated communications / broadband / media marketplace developments. When pondering reform, a lot of very smart lawmakers and their staffers get together and wring their hands agonizing over hundreds of “What If?” scenarios about future market developments and then concoct a legislative response to each of them. This is how we end up dozens of pages of new rules on universal service policy (Title II of the bill), video service regulation (Titles III and IV) and digital television transition rules (Title VII) in addition to the new things mentioned above.

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EVENT: GMU Spectrum Discussion Featuring Vernon Smith (tomorrow 4:00)

by on May 1, 2006

For those of you in the DC area TOMORROW at 4:00, The George Mason University School of Law’s Information Economy Project is launching its “Big Ideas about Information” series with a discussion on “FCC License Auctions: Lessons from a Tumultuous Twelve Years.” The event will feature a conversation with Vernon Smith, Professor of Economics & Law at George Mason University and 2002 Nobel Laureate in Economics, and David Porter, Professor, Interdisciplinary Center for Economic Science at George Mason University. Both men are internationally renowned experts on the structure of auctions.

The event will be held at the George Mason University School of Law (Room 120). The GMU law school is located on 3301 Fairfax Drive in Arlington, Virginia and is right next to the Virginia Square-GMU Metro (Orange Line).

You can find more info and register at: http://www.law.gmu.edu/events/upcoming.php?ID=420

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Cellular Content Controls

by on April 27, 2006

There’s an interesting story on B1 of today’s Wall Street Journal about cellular companies establishing very restrictive standards for wireless media content transmitted over their devices. I have yet to see the final guidelines that the Journal gained access to, but it sounds like Verizon, Cingular, Sprint and others will be imposing some very stringent controls in an attempt to curtail nudity and sexual content, foul language, violent programming and even hate speech.

As I pointed out in my recent PFF study, “Parents Have Many Tools to Combat Objectionable Media Content,” this is just another example of the sort of steps that media providers and distributors are taking to help parents and consumers restrict or curtail objectionable content before they call upon government to do that job for them. Of course, one could argue that the only reason they are taking such steps is to avoid potential government scrutiny in the future. (Then again, the FCC does not currently possess the legal authority to regulate “indecent” or “violent” content on cellular / mobile networks or devices.) Regardless, I think it’s great that companies are establishing some voluntary guidelines and controls.

One thing that is still a bit unclear to me, however, is exactly how cellular carriers plan to police all the media content that will increasingly be flowing over their networks. The Journal article says that carriers are currently relying mostly on ad-hoc phone calls or e-mails to specific media providers to remove or edit certain types of potentially objectionable content. But even if the cellular carriers allocate more resources to such ad-hoc enforcement efforts, it certainly won’t be fool-proof. It will be easier to police content provided by large players (such as MTV or Playboy, for example), but what about all the organic, bottom-up, user-generated content?

This is the problem News Corp. has been facing in recent months with MySpace.com. Millions of average people (mostly teenagers) are posting countless bits of personal material on their sites. Some of it can get a little raunchy or offensive. That’s created a significant challenge for MySpace, but they are trying to do their best to keep up with it.

Cellular carriers will face that same challenge in coming years as more and more media goes mobile. It will be interesting to see how they deal with it and what the response of the legislative / regulatory community will be to these self-regulatory efforts. Stay tuned; another major First Amendment battle could be developing over that tiny TV screen in your pocket !

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Wrong Focus: Real Indecency Reform is Competition

by on April 27, 2006 · 8 comments

Technology Daily (subscription) reports that several conservative groups blasted Senate leaders Tuesday for not acting on legislation to increase broadcast indecency fines, and “failing to deliver an issue to values-oriented Republican voters”. Said Amanda Banks of Focus on the Family: “[t]here is no reason why in 2006, just months before this Congress is going to be out of session, it has not passed the Senate and moved on to the [president’s] signature.”

But Focus’s focus is wrong here. Increased fines on broadcasters would do little to help parents protect their children from programming they see as offensive. Broadcast TV, remember, is only a small part of TV viewing–most is now on cable channels not under the FCC’s authority. And that authority, for good constitutional and policy reasons, is unlikely to be extended. If anything, given the legal challenges recently filed against the FCC’s latest round of indecency fines, that authority will be pared back.

Rather than the dead-end of goverment content regulation, the real goal should be to increase the ability of consumers to themselves control the content of what appears on their TVs. Congress this week took a giant step toward that goal yesterday–as the House Commerce Committee approved legislation to speed the launch of new, Internet-based, video TV services developed by Verizon, AT&T and others. Not only will these new offerings provide welcome new choices for consumers, but the technologies they use promise to make it easier for individual consumers to get individualized TV programming packages.

Such service would be a boon to beleagured parents. Rather than criticize Congress for not increasing the FCC’s power, conservatives should be cheering on this very real step toward consumer choice.

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Do You Really “Save the Internet” By Regulating It?

by on April 25, 2006 · 4 comments

A new pro-Net neutrality coalition has formed called the “Save the Internet Coalition.”

Hey, who can be against that? Well, I can.

You see, this coalition’s idea of “saving the Internet” is premised on regulators doing the saving. The coalition proclaims that “Congress must include meaningful and enforceable network neutrality requirements” in whatever communications reform legislation it passes this session “to ensure that the Internet remains open to innovation and progress.”

Oh, I get it… Let’s call in our benevolent-minded regulators to oversee the daily workings of something as complicated as Internet network management. Brilliant !!

Haven’t we learned anything from seven decades of communications regulation? Empowering bureaucrats to micro-manage the operation of broadband networks and Internet activities isn’t going to lead to communications nirvana; it’s going to lead to just another regulatory hell. Supporters of Net neutrality mandates are essentially saying we need more government regulation in order to be free. It’s the beginning of another sad chapter in the “burn the village in order to save it” story of modern communications regulation.

And in what I regard as an absolutely despicable contortion of the true meaning of the First Amendment, the Coalition’s “statement of principles” on its website states that: “Network neutrality is the Internet’s First Amendment. Without it, the Internet is at risk of losing the openness and accessibility that has revolutionized democratic participation, economic innovation and free speech.”

Please! How dare you employ the First Amendment in defense of your Big Government plan for Internet control. In case the members of the “Strangle the Internet”… er, uh… “Save the Internet Coalition” have forgotten, the First Amendment could not be any more clear about the role it envisions for government when it says: “CONGRESS SHALL MAKE NO LAW…”!

We used to talk about “Hands Off the Internet.” But groups like this are leading us down the path to “Hands ALL OVER the Internet.” To use the First Amendment in service of this regulatory agenda is outrageous.

If the folks in this coalition want to take a stand in favor of the REAL First Amendment, perhaps they can come join me in my daily fight against the FCC on the speech control front. Those same benevolent bureaucrats that the “Save the Internet” coalition wants to empower to regulate Net have been very busy lately regulating speech in the broadcast sector.

You might say there’s no connection between these two issues. Nonsense. We gave the regulators an inch on the broadcast front and they took a mile. Once we empowered them to regulate broadcast infrastructure, the regulation of the speech delivered via broadcast platforms followed. It’s an example of what Vanderbilt law professor Christopher Yoo has labeled “architectural censorship.” Simply stated, if government can regulate the soapbox, it can regulate the speech delivered from that soapbox as well. Do you really think things will be different once we invite the bureaucrats in to regulate the Internet?

I say if we’re going to “save the Internet,” let’s start by saving it from silly ideas like Net neutrality regulation.

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Highlights from Monday’s Microsoft hearing at the CFI

by on April 24, 2006

Today’s hearing at the European Court of First Instance (CFI) focused on the Windows Media Player. Below are some key ideas that came up during the arguments.

On RealPlayer:
Some groups like ECIS–the European Committee for Interoperable Systems–attempted to argue that RealPlayer is dead. Their press release said this:

“Just as [Microsoft’s] strategy eliminated the Netscape Browser and now Real Player, unless stopped it will do the same to other technologies whenever MSFT deems them to be strategic to their business interests.”

Last I looked, RealPlayer was alive and well (and fighting with Apple over its proprietary music technology). I personally stopped using RealPlayer a while ago because I was tired of the spyware-like pop ups that Real delivered to my computer.

On browsers:
The EC attorney said that Microsoft’s browser has become stagnant because “it has a monopoly.” That’s got to be the loopiest statement I’ve heard in a while. Apparently the EC attorney is not aware of Safari, Opera, Flock, or my personal favorite, Mozilla (born from the original Netscape).

On the popularity of Windows designed by Eurocrats:
As of today, no PC manufacturer has shipped a single computer installed with Windows XPN (the n means no Windows media player). Translation: no one wants bureaucrats to design software for them.

On multiple choices for media players:
The EC seems to be assuming that consumers will only ever want to use one media player and that content providers will only want to offer their products in one format. This doesn’t make sense, at least at this point in the market’s evolution. Each media player has its merits, which is why many of us use different ones at different times. And, thanks to a nice presentation by Jonathan Zuck of the Association for Competitive Technology, the Court and all its observers got to see how fast, easy, and cheap it is for a content provider to offer up their wares in multiple formats at once (i.e, when you go to a site and it asks you if you want to use RealPlayer, Quick Time, Windows Media, etc). There are affordable translation programs like “ProCoder” or the one built into Apple’s “Final Cut Pro.” Jonathan’s demonstration showed that it took 3 steps and about 10 minutes to do the translation–a no-brainer for any content company. “It’s as simple as 1-2-3,” he said. But when the EC issued its Microsoft decision in 2004, it didn’t consider the costs or the ease of translation. It just assumed that there would be costs (the translation), but ignored the benefits (greater choice for consumers and hence the ability for content providers to grow their market and revenues).

The upshot:
It was an interesting day with both sides presenting their cases. Tomorrow, the judges start to ask questions and I’m sure those British attorneys wearing the judicial wigs will get extra hot heads. I’d better get to the gift shop and buy my Internet access cards before they sell out and I’m forced to send smoke signals.

Also, if you’re interested in listening to Podcasts of the event, Americans for Technology Leadership’s (ATL) Jim Prendergast has posted a few on ATL’s site.

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Television Wants to be Free

by on March 19, 2006 · 2 comments

Apropos last week’s discussion of “parasitic” technologies, Ars has a great survey of the surge in product placements on TV. In a nutshell, as TiVos have made it easier to avoid commercials, networks have responded by blurring the line between advertisement and content, placing products (and plugs for products) within the show itself.

Frankly, I think this is probably better for everyone, at least for certain types of TV content. Given a choice between sitting through 18 30-second commercials in a half-hour sitcom, or seeing 10 product placements in the course of the show, I would much prefer the placements. At best, they can conceivably enhance the show by increasing its realism. At worst, they’ll be mildly irritating and distracting. Yes, at the margin it will probably reduce the artistic integrity of certain shows, but how many network TV shows have artistic integrity in the first place?

I think this trend has broader implications for the future of the television industry as well. The current television marketplace has a puzzling contradiction: on the one hand, networks fight tooth and nail to get people to watch their shows, for free, over the air. On the other hand, they charge a rather stiff fee for the privilege of watching the same content–often at lower quality–via the Internet. Obviously, part of the concern is that the Internet users will strip out the ads. Product placement solves that problem by making it difficult to strip ads without mangling the story itself.

Which leads to an interesting question: why don’t the networks simply make their shows freely available on the Internet to anyone who wants them? Put them on peer-to-peer networks to save on bandwidth! Upload them to YouTube and Google Video! After all, an eyeball is an eyeball. Sooner or later, Nielsen will figure out a way to measure how many eyeballs Internet distribution reaches. As long as there are plenty of products placed in each episode, advertisers will pay to have them distributed regardless of the medium.

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