2016 May

Tech Knowledge Reply Comments in FCC ‘Set-Top Box’ Proceeding

Posted by | Broadband Internet, Video | No Comments

On Monday, Tech Knowledge filed the following reply comments at the Federal Communications Commission in its proceeding to impose wholesale unbundling regulations on cable and satellite video programming in the guise of regulating set-top boxes. The complete comments as filed can be downloaded from the FCC’s website in PDF format HERE. (Note, the HTLM version of the reply comments printed below does not contain the footnotes or appendices provided in the PDF version that was filed at the FCC.)

Executive Summary

The arguments made by proponents of the Wholesale Proposal affirm that its true purpose is to limit MVPDs’ ability to exercise editorial discretion by forcibly overwriting MVPDs’ video interfaces. The Communications Act, previous FCC findings, judicial precedent, and scientific studies in behavioral economics all demonstrate that the interface between consumers and MVPDs’ video programing is itself a form of speech or is otherwise entitled to First Amendment protection because it is intrinsic to MVPDs’ exercise of editorial discretion.

Consider Amazon’s example in its comments in this proceeding — that the Wholesale Proposal would enable Amazon to suggest that an MVPD subscriber watch Amazon’s own programming rather than an MVPDs’ program. In the context of the printed news, that would be equivalent to a rule permitting the Washington Post (a newspaper owned by Amazon CEO Jeffrey P. Bezos) to slap a new front page on the Washington Examiner that contains the Post’s chosen headlines and a message directing Examiner subscribers to read the Post instead. Though the Examiner’s subscribers would still have access to the Examiner’s content as a technical matter (by turning the page), the rule would have the effect of compelling the Examiner to publish (or subsidize the publishing of) that which it does not want to publish (the Post’s headlines and advertising messages) while effectively overriding the Examiner’s editorial decisions about what should be considered the “front page news” of the day. Similarly, the Wholesale Proposal would force MVPDs to publish that which they do not want to publish (i.e., mandatory “information flows”) in order to enable third-parties to direct MVPD subscribers to watch third-party programming (and its associated advertising) that displaces MVPDs’ own decisions regarding what programming should be highlighted on the video interface’s “front page.” Whether applied to print or video, such a rule would cut straight through the heart of the First Amendment’s guarantee of press freedom.

Shifting control over the video choice architecture (and corresponding profits) from MVPDs (and the video programming vendors with whom they negotiate content licenses) to Internet software companies (and their affiliated video programming vendors) would threaten the free flow of information and ideas by concentrating control over the video interface in the hands of a few, giant Internet software companies. Read More

The FCC Must Fix Its Process For Receiving Public Input Before Driving Ahead

Posted by | Broadband Internet, Privacy, Video | One Comment

While defending his decision to take jurisdiction over broadband privacy issues from another federal agency, Federal Communications Commission Chairman Tom Wheeler proclaimed the FCC “didn’t just fall off the turnip truck.” Perhaps because he had already driven it into the ditch. With this Chairman at the wheel of the FCC, the nation’s expert agency in charge of regulating the Internet, the agency can’t even keep track of public comments filed over the Internet.

During its net neutrality proceeding in 2014, the FCC omitted nearly 680,000 comments from its initial data files due to “glitches” in its electronic comment system. As quickly as the FCC is rushing to impose new regulations on Internet privacy and Internet video, one would think the FCC would have solved its problems with receiving public input by now.

Instead, it appears things have gotten worse. Comments aren’t even showing up in the FCC’s electronic system due to a “74,000-comment backup” across all FCC dockets. In the meantime, the public can’t see these comments or attempt to respond to them. If Senator Mike Lee hadn’t asked Chairman Wheeler about the FCC’s information technology problems during a hearing on Wednesday, the public likely wouldn’t have known that the FCC comment systems aren’t working properly. Read More