By Adam Thierer & Berin Szoka

The Wall Street Journal reports (see Financial Times, too) that “CBS Corp. and Walt Disney Co. are considering participating in Apple Inc.’s plan to offer television subscriptions over the Internet, according to people familiar with the matter, as Apple prepares a potential new competitor to cable and satellite TV.”

If Apple signs up enough networks to launch a viable service—still a very big if—it could ultimately alter the economics of the television business. The service could undermine the big bundles of channels that cable, satellite and telecommunications companies, including Comcast Corp. and DirecTV Inc., have traditionally sold in packages to subscribers.

And Brian Stelter of The New York Times says of the plan:

Broadband Internet subscriptions to TV networks could potentially destabilize the bedrock of the television business, which relies on subscribers paying for dozens of bundled channels.

As we have noted have noted here in our ongoing “Cutting the Video Cord” series, it’s just another sign that the video marketplace is vibrantly competitive and experiencing unprecedented innovation. So, why is Washington regulating this marketplace like we still live in the disco era?

The New York Times itself seems to be of two minds on this: Brian seems to recognize that the rise of Internet television means that cable providers no longer have any sort of special “gatekeeper” or “bottleneck” control over the programming available to consumers, just as his colleague Nick Bilton at the Times‘ BITS blog recently declared that “Cable Freedom Is a Click Away.” And yet, as Berin recently noted, when the DC Circuit struck down the FCC’s outdated 30% cap on the number of homes a single cable provider could serve (based on “gatekeeper” concerns) back in September, the  Times editorial page bemoaned the decision and demanded further regulation of the cable industry—even as Internet TV is fundamentally changing the marketplace for video programming and rendering moot “gatekeeper” concerns far more effectively than any law could ever do.

“Right hand, meet Left hand. Howyadoinnicetameetcha!”

Around this time last year, a relative 20 years my senior was asking me what I was writing about and I mentioned how I’d been collecting anecdotes and stats for what was becoming our “Cutting the Video Cord” series here.  That series has documented how the Internet and new digital media options are displacing traditional video distribution channels.  We’ve been exploring what that means for consumers, regulators and the media itself.

I asked this relative of mine if they spent any time watching their favorite shows, or even movies, online or through alternative means than just their cable or satellite subscription.  He said he didn’t because of the lack of an easy way to find all their favorite shows quickly.  Specifically, he lamented the lack of a good “TV Guide” for online video. I explained to him that, for most of us 40 and under, our “TV Guide” was called “a search engine”!  It’s pretty easy to just pop in any show name or topic into your preferred search engine and then click on “Video” to see what you get back.  Nonetheless, I had to concede that random searching for video wouldn’t necessarily be the way everyone would want to go about it.  And it wouldn’t necessarily organize the results in way viewers would find useful–grouping things thematically by genre or offering the sort of related programming you might be interested in seeing.

Well, good news, such a service now exists. Katherine Boehret of the Wall Street Journal brought “Clicker.com” to my attention in her column last night, a terrific new (and free) video search service:

… Clicker [is] a free Web site that aims to be the TV Guide for all full episodes available to watch on the Web. It searches over 1,200 sources, so it can index some 400,000 episodes from 7,000 shows. Results include television programs as well as “Web originals,” or shows that are native to the Internet and are of broadcast quality. Clicker either plays the video on its site or links you to where this content is shown on another hosting site—like NBC or Hulu. If a show isn’t available online, Clicker tells you so you don’t have to keep hunting all over for it.

I played around with Clicker quite a bit last night and this morning and can safely say that I will be spending a lot of my free time there in coming months and years, as will a lot of other folks I suspect. It’s a great way to search a broad array of websites for the very best video content on the Net.  I’m a car nut and used Clicker to quickly pull up some of my favorite programs as well as several I had never heard of before.  The player will allow you to fire up many of those videos right away, or at least direct you to the site where the content is housed to watch it there immediately.  The playlist feature allows you to create a customized “TV Guide” for you and your own family.  Very cool.

Anyway, when we add Clicker to all the other great online video services out there today, it’s even harder for me to understand the amount of time Washington regulators and lawmakers spend obsessing about crusty old TV regulatory issues.  It just doesn’t make any sense.

As part of our ongoing series that tracks the gradual transition of video content to the boob tube to online outlets, I want to draw everyone’s attention to two excellent articles in today’s Washington Post about this trend.  One is by Paul Fahri (“Click, Change: The Traditional Tube Is Getting Squeezed Out of the Picture“) and the other by Monica Hesse (“Web Series Are Coming Into A Prime Time of Their Own“).  I love the way Paul opens his piece with a look forward at how many of us will be explaining the “old days” of TV viewing to our grand kids:

S it down, kids, and let Grandpa tell you about something we used to call “watching television.” Why, back when, we had to tune to something called a “channel” to see our favorite programs. And we couldn’t take the television set with us ; we had to go see it! Ah, those were simpler times. Oh, sure, we had some technology we thought was pretty fancy then, too, like your TiVo and your cable and your satellite, which gave us a few hundred “channels” of TV at a time. Imagine that — just a few hundred! And we had to pay for it every month! Isn’t the past quaint, children? Well, it all started to change around aught-eight, or maybe ’09, for sure. That’s when you no longer needed a television to watch all the television you could ever want. Yes, I still remember it like it was yesterday . . .

Too true.  Anyway, Paul goes on to document how some folks have already completely made the jump to an online-online TV existence and are doing just fine, although the idea of us all gathering around the tube to share common experiences may be a causality of the migration to smaller screens, he notes.

Monica’s piece documents the rise of independent online television shows and notes:

The shows don’t look exactly like the traditional television series we’re used to, but if you’re willing to adapt to the medium you might discover something surprising: You can become a very satisfied television addict without ever straying from your laptop. When done right, the experience can be more intimate, more creative and more personal than you ever expected.

She then discusses the growth of online series such as “The Guild,” “Gemini Division,” and “Sorority Forever,” which features the Jessica Rose (aka “Lonely Girl15“), who was instrumental in getting the online video TV series trend off the ground.  Of course, the viewing numbers for online shows still pale in comparison to major network or cable shows, but that could change in the future.

Again, to reiterate a point we have made here many times before, what makes all this so interesting from a policy perspective is the way media law remain stuck in a time warp, or what I have referred to as a jurisprudential Twilight Zone:  Identical words and images are being regulated in completely different ways depending on the medium of transmission.  As I noted in an earlier essay in this series:

The video marketplace is changing rapidly. Meanwhile, however, back in the surreal regulatory la-la land of Washington, DC, it remains business as usual.  As Brian Anderson and I point out in our new book, A Manifesto for Media Freedom, policymakers are still trying applying a host of unique regulations to “old media” providers, including: various censorship rules, educational programming mandates, special campaign finance advertising laws, must carry regs, media ownership caps, broadcast “localism” requirements and various other “public interest” obligations, and much more.

And yet, online video remains (thankfully) completely unregulated.  Will that last?  Or will the worst regulation of old television era gradually creep over into new video realms?  That’s something I am increasingly concerned about; the dawn of what I call “convergence-era content regulation.”

Get ready.  A regulatory war awaits.

This ongoing series has focused on the growing substitutability of Internet-delivered video for traditional video distribution channels like cable and satellite.  YouTube has recently begun exploring adding traditional television programming to its staggering catalogue of mostly amateur-generated content.  

But now YouTube is going one step farther by exploring  the possibility of signing Hollywood professionals to produce “straight-to-YouTube” content:

The deal would underscore the ways that distribution models are evolving on the Internet. Already, some actors and other celebrities are creating their own content for the Web, bypassing the often arduous process of developing a program for a television network. The YouTube deal would give William Morris clients an ownership stake in the videos they create for the Web site.

This kind of deal would make Internet video even more of a substitute for traditional subscription channels—thus further eroding the existing rationale for regulating those channels.  

But what’s even most interesting about this development is that YouTube’s interest seems to be driven primarily by the possibility of reaping greater advertising revenues on such professional content than on its currently reaps from its vast, but relatively unprofitable, catalogue of user-generated content:  

YouTube’s audience is enormous; the measurement firm comScore reported that 100 million viewers in the United States visited the site in October. But, in part because of copyright concerns, the site does not place ads on or next to user-uploaded videos. As a result, it makes money from only a fraction of the videos on the site — the ones that are posted by its partners, including media companies like CBS and Universal Music. The company has shown interest in becoming a home for premium video in recent months by upgrading its video player and adding full-length episodes of television shows. But some major television networks and other media companies are still hesitant about showing their content on the site. The Warner Music Group’s videos were removed from the site last month in a dispute over pay for its content.

Digital video recorders (DVRs) may turn out to be the “last gasp” of cable, satellite and other traditional multichannel subscription video providers.  If users can get the same basic functionality (on demand viewing of the shows they want) over the Internet for free or paying for each show rather than a hefty monthly subscription, Who Needs a DVR?, as Nick Wingfield at the WSJ asks:

Among a more narrow band of viewers -– 18- to 34-year-olds -– SRG found that 70% have watched TV online in the past. In contrast, only 36% of that group had watched a show on a TiVo or some other DVR at any time in the past. That last figure is a fairly remarkable statistic. Remember that DVRs have the advantage of playing video back on a device where the vast majority of television consumption has traditionally occurred –- that is, the TV set. Although it’s also possible to watch shows over the Internet on a TV set through a device like Apple TV and Microsoft’s Xbox 360, most people watch online TV shows through their computers — which have inherent disadvantages, like smaller screens and, in most cases, no remote controls.

Indeed, if users are going to buy a piece of hardware, why buy a DVR when they can buy a Roku box or a game console like the XBox 360 that will put Internet-delivered TV on their programming on their “television” (a term that increasingly simply means the biggest LCD in the house, or the one that faces a couch instead of an office chair)— and save money?

This is precisely the point Adam Thierer and I have been hammering away at in this ongoing series.  The availability of TV through the Internet and the ease with which consumers can display that content on a device, and at a time, of their choosing are quickly breaking down the old “gatekeeper” or “bottleneck” power of cable.  Let’s see how long it takes Congress and the FCC to realize that the system of cable regulation created in the analog 1990s no longer makes sense in this truly digital age.

This ongoing series has explored the increasing ability of consumers to “cut the cord” to traditional video distributors (cable, satellite, etc.) and instead receive a mix of “television” programming and other forms of video programming over the Internet.  As I’ve argued, this change not only means lower monthly bills for those “early adopter” consumers who actually do “cut the cord”, but, in the coming years, a total revolution in the traditional system of content creation and distribution on which the FCC’s existing media regulatory regime is premised.   

This revolution has two key parts:

1. Conduits: The growing inventory—and  popularity—of sites such as Hulu, Amazon Unboxed and the XBox 360 Marketplace (or software such as Apple’s iTunes store), that allow users to view or download video content.  Drawing an analogy to the FCC’s term “Multichannel Video Programming Distibutor” or MVPD (cable, direct broadcast satellite, telco fiber, etc.), I’ve dubbed these sites “Internet Video Programming Distributors” or IVPDs.
2. Interface:  The hardware and software that allows users to display that content easily on a device of their choice, especially their home televisions.

While much of the conversation about “interface” has focused on special hardware that brings IVPD content to televisions through set-top boxes such as the Roku box or game consoles like the XBox 360, at least one company is making waves with a software solution.  From the NYT:

Boxee bills its software as a simple way to access multiple Internet video and music sites, and to bring them to a large monitor or television that one might be watching from a sofa across the room. Some of Boxee’s fans also think it is much more: a way to euthanize that costly $100-a-month cable or satellite connection. “Boxee has allowed me to replace cable with no remorse,” said Jef Holbrook, a 27-year-old actor in Columbus, Ga., who recently downloaded the Boxee software to the $600 Mac Mini he has connected to his television. “Most people my age would like to just pay for the channels they want, but cable refuses to give us that option. Services like Boxee, that allow users choice, are the future of television.” …. Boxee gives users a single interface to access all the photos, video and music on their hard drives, along with a wide range of television shows, movies and songs from sites like Hulu,Netflix, YouTube, CNN.com and CBS.com.

With 200,000 users thus far, Boxee is quickly taking off and made a big splash at CES this year.  Boxee may be a scrappy start-up but is founder realizes the revolutionary implications of his product:

Mr. Ronen also shared what he called his “politically incorrect” vision of how the Internet would upset the television business by giving people on-demand access to the array of Web content. “The challenge for the cable industry is how they grapple with the fact that this is in some way a substitution for some of the things they do,” he said.

The NYT rightly observes that, whether Boxee really takes off as the Next Big Thing, its success thus far is at least driving other “consumer electronics companies to move faster to bring the Internet to their devices.”  I suspect that what we’re seeing now is a “tipping point” on both sides of the business:  As IVPDs gain popularity and larger inventories, “interface” developers like Boxee (or others on the hardware side) will proliferate rapidly.

In an essay I posted here back in October called “Cutting the (Video) Cord: The Shift to Online Video Continues” (part of an ongoing series), I reflected on an interesting piece by the Wall Street Journal’s Nick Wingfield’s entitled “Turn On, Tune Out, Click Here.” Wingfield’s article illustrated how rapidly the online video marketplace is growing and noted that so many shows are now available online that many people are cutting the cord entirely by canceling their cable or satellite subscriptions and just downloading everything they want to watch via sites like Hulu and supplmenting that with services like Netflix. In today’s Washington Post, Mike Musgrove writes about these same trends and developments in a column entitled, “TV Breaks Out of the Box.” Musgrove notes:

This has been a big year for both Netflix and online video services like Hulu.com, where people can watch episodes of popular shows such as “The Office” for free, though users do have to sit through a few commercials. When Tina Fey debuted her impression of Sarah Palin on “Saturday Night Live” last month, more people watched the comedy sketch online at NBC.com or Hulu.com than during the show’s broadcast. Last week, YouTube announced that it would start carrying old TV shows and movies from the film studio MGM. As for Netflix, it seems that somebody there has been busy this year. While most customers still use the online video rental site mainly for movie deliveries by mail, the company now has a library of online content available for viewing on your TV through a variety of devices. A $99 appliance from Roku that plugs into your TV set and connects to the Web has been popular among some folks dropping their cable subscriptions. A couple of new, Web-connected Blu-ray players from Samsung and LG Electronics also allow Netflix subscribers to instantly watch titles from the company’s online collection.

Musgrove continues and notes that it’s about more than just Hulu and Netflix:

During a visit to The Washington Post this past summer, Microsoft chief executive Steve Ballmer mentioned that his favorite TV show is “Lost” and that he watches the show online, not on cable and not through a purchase on Apple‘s iTunes service. “I have to admit I’m annoyed by the [ads], but not enough to pay a buck,” he said. Ever have a billionaire make you feel dumb for leading an overly extravagant lifestyle? Ballmer didn’t mention the show’s availability on Microsoft’s Xbox Live service. That’s where I’d been buying and downloading episodes of the show, on an a la carte basis. But starting this week, a major revamp of the Xbox interface makes it possible for owners like me to access the Netflix library without shelling out on a per-title basis. The day after CSI airs, for example, I’ll be able to watch it with a few clicks on the device’s controller. This is available only for people paying for a Netflix subscription, but I’ve already heard some gadget fans, the ones who don’t care about video games very much, wondering if the new feature might make the console a worthwhile purchase. For those interested in checking out some TV on the Web, some networks, like NBC, put almost all of their programming online; others, like HBO, have little content online. One Web site, Cancelcable.com, has a page that tracks where Web surfers can find their favorite shows online.

I was not aware of that CancelCable.com site until I read Musgrove’s article, but it really does show how this migration to alternative video distribution / consumption is picking up steam.

Unfortunately, as I noted in my previous essay, someone forgot to tell the folks in Washington about all this. They’re still busy obsessively regulating broadcast TV and radio as if the 1950s never ended. And they’ve increasingly expanded their regulatory coverage to include cable and satellite even though they are now struggling to keep people from moving to the completely unbundled, a la carte world of online video.

It’s an old story, really: Technology advances; regulation stands still.