Its summer and time for old habits to kick in. It might be going to camp, or taking a vacation, or working at a summer job or just hanging around. Even Congress has its summer habits. Much like TV, Congress from time to time uses the summer for re-runs, bringing back some old classics of years past – like giving the telecom and entertainment industries a bag of goodies all nicely wrapped up.
It's not just Net Neutrality. There's lots more at stake.
Stop me if you've seen this one. The big media and telecommunications industries persuade Congress to write a bill that gives them anything they want, while consumers get little or nothing.
Does the plot sound familiar? It should, and it's on yet again, in the form of the new Senate telecom legislation (S 2686) to be marked up this week in the Senate commerce Committee. We've seen this show before. In 1996 Congress passed the Telecommunications Act. That one took price controls off of cable service, allowed broadcasters to build up huge empires and let the telephone companies buy out each other while putting the screws to competitors.
It was such a success that the act was brought back in modified form in 2001 and 2002. The bill known for its sponsors, then-Rep. Billy Tauzin (R-La.), chairman of the House Commerce Committee and Rep. John Dingell (D-Mich.), the committee's senior Democrat, would have lifted the restrictions on telephone companies to share their lines with competitors and deregulated their prices. That bill passed the House, but died in the Senate during the time when Democrats had control, but the Federal Communications Commission implemented many of the policies without Congress. (We note for the record, however, that Dingell has seen the light and altered his views and become a backer of Net Neutrality, a pro-consumer Internet concept the phone and cable companies oppose.)
Now it's time for another appearance, and the real, big industries, as opposed to the relatively nascent Internet companies, have had their shopping lists enshrined in legislation. We've seen one version of the act over in the House, where the telephone and cable companies got their wishes heard, for a streamlined national system of getting or keeping cable licenses without any pesky requirements that would keep the Internet as open and free as today's Internet.
On Thursday, the Senate Commerce Committee will mark up an even bigger, more ambitious bill that has more goodies for more industries and arguably next to nothing for consumers. Read on for details.
Let's start with Net Neutrality, which the telephone and cable companies have been fighting with dozens of lobbyists and millions of dollars. It's in the bill, all right. For those with a subtle sense of the ironic, it is in this bill assigned to Title IX. But unlike the more famous Title IX, which banned discrimination in education, this Title IX instead would institutionalize discrimination on the Internet.
This Title IX is presented as a “compromise,” although it's hard to say how it is so. There is no ban on telephone or cable companies favoring some services, particularly those in which they have a financial interest, over others. The way is open for AT&T or Verizon or Comcast to put whatever they want online on whatever terms and conditions. The rest of the conditions put in the bill are meaningless without a clear
statement of non-discrimination, which is at the heart of the Net Neutrality issue.
What protections there are in the latest draft of the bill are slender, indeed, but cleverly done. They are phrased in terms of the rights consumers have to “access and run” services and to attach equipment. That's nice. But the danger isn't that consumers won't be able to access services. It will be on what terms and conditions, and whether the companies that own the network will shift away from what they call the “public Internet” onto a “private” version, or whether they will simply prioritize services on the Internet as we know it by scanning the bits and playing favorites.
The one benefit consumers are supposed to get in this bill is lower cable rates. In theory, the lowering of rates would come about because telephone companies will be able to offer video programming under a streamlined process outlined in excruciating detail in the bill.
In a particularly odious comment, Rep. Al Wynn (D-Md.), said during the House debate on its version of the telecom bill: “I want to say, first of all, that this bill is not about net neutrality. The Google crowd, the Internet crowd does not care about cable rates. But this bill is about cable rates. And what we know today is that cable rates are too high in America.” In his slap at the “Google crowd,” Wynn overlooked the fundamental weakness in the bill. There is no requirement that the new entrants into the cable business, i.e., the telephone companies, provide competition in any neighborhood or section of town.
Rep. Bobby Rush (D-Ill.), who also made an impassioned plea for the bill, also overlooked the convenient fact that nowhere does the bill require telephone companies to go to neighborhoods that are less well off than others – except, perhaps, if they are represented by allies in Congress.
Amazingly enough, it's not only the telephone and cable industries which make out in this bill. The movie and record industries have their own goodies in here as well in the form of a content protection scheme that will determine how you watch TV or listen to music and would put the government in charge of consumer electronics design.
For the movie industry, the bill would give the FCC the power to implement the “broadcast flag,” a regulation governing over-the-air digital TV. The “flag” is a data bit encoded in the video signal that tells the receiver whether the program can be recorded, or not, or forwarded, or not. The FCC first came out with the regulation in late 2003. On May 6, 2005, the U.S. Appeals Court for the District of Columbia, in a case brought by Public Knowledge (my day-job employer), the American Library Association and others, struck down the rule in a particularly harshly worded opinion accusing the FCC of trying to extend its domain far broadly than it ever had.
Now Congress is poised to give the FCC authority to let Hollywood determine how TVs should be built and to have control over content they may not even own. Hollywood has pushed this “broadcast flag” issue for years because it's afraid that high-definition programming will be stolen without content protection. In fact, Viacom told the FCC in December 2002: “If the broadcast flag is not implemented and enforced by next summer, CBS will cease providing any programming in high definition for the 2003-2004 television season.” Obviously they haven't carried through on that threat. They just want the control over you and your TV.
The recording industry wants equal control over you satellite radio. They are pushing for controls on devices that let you download and store music, even if you can't transfer the tunes off of the radio receiver. The Recording Industry Association of America (RIAA) is afraid that you will save the songs you want and not buy the CDs or downloads. The Senate version doesn't have an outright ban, but it sets up a stacked committee to come up with one. The House bill has the ban.
The other wrinkle in this bill worth mentioning is that it would give the FCC the authority to meet in secret, as long as no votes are taken. Under current law, only three commissioners of the five-member body are allowed to be in one place at one time – with some exceptions for public events. The bill drops that, and allows everyone behind the door.
These tunes are getting old.
This post first appeared on www.tpmcafe.com