Tales of the Sausage Factory

An insider’s view of the media hegemony

“Our Viewers Don't Need News! One percent of time is too much already!”

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In the last week of December, my employer Media Access Project filed Petition to Deny the television license renewals in the Portland-Salem market in Oregon. As detailed in the Pettition to Deny, the broadcast stations spent only 1% of time in October covering local elections. We argue that this amounts to a complete failure under any standard by these stations, individually and collectively, to meet their obligations to their local viewing areas. (We filed similar Petitions, still pending, against stations in Milwaukee and Chicago.)

Bill Johnstone, spokesman for the Oregon Association of Broadcasters did not dispute the findings of the study on which MAP based the Petition to Deny. Instead, Mr. Johnstone asserted that the the one percent was too much. Mr. Johnstone argued that one percent of time devoted to local political news for the people of Oregaon (or at least, the Salem-Portland market) was “more than our fill.” Indeed, Mr. Johnstone reckons that folks is generally sick of all that politics and news stuff because (and I am not making this up) “Very few politicians can tell the truth.” Mr. Johnstone also opined that it served the puiblic to make broadcast a local-politics free zone because “given everything else that the public has access to — the Internet, the ads they see and hear, the billboards, the unwelcome calls from candidates” the public must be plum sick of news.

This, of course, explains why broadcasters keep dropping the amount of local news available to the public (as documented in places like the Project on Excellence in Journalism). It’s a public service to provide viewers with a refuge from all that unwelcome input from reality.

At least they are no longer relying on the obviously false statement that they are only ”giving the public what they want“ and that ”if people wanted to see more ‘hard news, we’d broadcast that.“ As surveys and analysis continue to show audineces fed up with the lack of news fleeing in droves to other media. No, apparently the public is best served by making the broadcast media a ”safe haven“ from news. And broadcasters are courageously willing to take the hit on audience share to do it!

Now some of you might think that if, as Mr. Johnstone thinks, most politicians can’t tell the truth, that actual journalists might have the job of exposing those lies and challenging these politicians. In fact, if local news programs started doing that regularly, politicians might try lying less and telling the truth more.
Silly people! That is no longer what we rely on ”journalists“ and ”news“ for. According the the FCC, we now rely on such programs and ”Howard Stern,“ the ”Tonight Show,“ and ”Good Morning America.“ Each of these, the FCC has assured us, is a bona fide news program. And, as the broadasters constantly tell us at the FCC, we have the internet now! ”The internet“ amazingly gives us all our news. In fact, as Mr. Johnstone explains, the internet and paid political advertising provide so much news that it falls to the brave broadcast media to provide a ”safe harbor” where we can insulate ourselves from all this inconvenient news by getting updates every five minutes on the latest celebrity scandal, heartwarming pet trick, or desperate family missing their vacation in Disneyworld due to snow in Denver.

So keep hope, people of Portland and Salem Oregon, you’re local broadcasters are looking out for you! If you, like Mr. Johnstone, thought 1% of time covering local politics in 2006 was too much, then sleep easy. We can promise you that, if things keep going as they’re going, you’ll be even safer from accidental exposure to news in 2008.

Or, if you feel different, you can meet the rest of us down at the National Conference on Media Reform this week and help us plan on how to turn things around.

Stay tuned . . . .

Why Yoo Is So Wrong on AT&T Net Neutrality Condition

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Professor Christopher Yoo of Vanderbilt sent an email to Dave Farber’s Interesting People list explaining why the inclusion of network neutrality conditions in the AT&T/BS merger agreement violates the Administrative Procedure Act (APA).

I usually disagree with Yoo on matters regulatory (he being of the neo-con deregulatory school, I being of the pragmatic regulation for a real world school). But that’s a matter of opinion. Here, however, he’s legally and factually just plain wrong. While he’s entitled to argue that he thinks “regulation by merger” sucks rocks (a point with which, no surprise, I disagree), the idea that the merger conditions run afoul of the APA is contrary to statute, contrary to case law, and contrary to the facts of the instant case (with which Professor Yoo seems surprisingly unfamiliar).

Usually, I wouldn’t bother to respond to something like this, but it got picked up by Communications Daily and seems to be making the rounds among tech folk unfamiliar with the case law in question. So while no offense to an opponent who usually knows his stuff, I explain in blistering detail what’s wrong with Yoo’s argument below….

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Look what the FCC Found in the Basement!

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In response to a Freedom of Information Act Request filed by the Georgetown Institute for Public Representation Communications Law Projects and my employer Media Access Project, the FCC has now posted a collection of 42 final and draft reports relating to media ownership (no Hitchker’s Guide jokes please. Anyone who thinks these studies are definitive answers to anything needs to find their towel and get a life).

A very preliminary bit of analysis below….

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AT&T Net Neutrality Condition: Win, Lose or Draw?

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Unsurprisingly, in an area as complex as this, opinion has split on what the merger conditions mean. Some, like Tim Karr and Columbia Law Professor Tim Wu, and Matt Stoller hail the conditions as an important victory. Others, such as Cardozo Law Professor and ICANN Director Susan Crawford, Jeff Pulver, and Dave Burstein think AT&T has cleverly played us for dupes by giving us conditions with loopholes that render the conditions meaningless. While others, like Dave Isenberg, strike a middle ground. Others, pointing out that the conditions only last two years,

What do I think? As I observed in July, when we got got some conditions out of the Adelphia transaction, evaluating wether you won or not in opposing a merger is a tricky business. But I reject the idea we got taken for a ride. To the contrary, anybody who thought this merger was going to provide the answer to the net neutrality issue, or eliminate the need for national legislation, does ot understand what was going on or what we were trying to accomplish.

And no, this doesn’t make a bad merger good. I certainly would have preferred seeing the FCC reject the merger. But given broad hints from Dingell that he never wanted the Ds to go that far, and given the fact that McDowell could have decided to come off the bench in June if the merger was still pending (since the Ds could not get a majority to vote to refer the matter to an Admin Law Judge), I don’t think a rejection was realistic to expect.

More detailed analysis below.

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Tonight, a Dramatic Conclusion for the AT&T/BellSouth Telenovella!

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In the dramatic penultimate episode of the telecom world’s favorite Telenovella Death Star Reborn: The AT&T-BellSouth Merger, the forces of Network Neutrality and competition win a dramatic victory!

AT&T has submitted a new 20-page letter outlining the conditions it will accept for the merger. Unlike the previous concessions in October, which amounted to little more than a joke and a promotional offer, this set of conditions is quite thorough. The breadth and scope of the conditions leaves me positively breatheless. To mangle Woody Gutherie for a moment:
You shall be neutral, in all your networks
From the first tier backbone, to the retail last mile,
from special access, to the U-N-Es
You shall not leverage market power!

I need a couple of different posts to really cover the implications. But here are the headlines:

1) Network neutrality is required in its fullest form. AT&T cannot prioritize or degrade service based on third party payments or affiliation anywhere between the peering point and the residential “last mile.” So not only has the definition of network neutrality been solidified consistent with that advocated by Save Our Internet and others, but it has been extended from the last mile to the vertically integrated backbone.

2) Residential fixed WiMax is included in the definition of “last mile.” This is the first time net neutrality has ever been applied to a wireless network.

3) AT&T must divest the 2.5 GHz spectrum it would acquire from BellSouth. This addresses a concern raised by Media Access Project and others that AT&T/BS would have an overwhelming spectrum advanatage against other wireless players.

4) AT&T has an agressive build out schedule to provide DSL at 768 KBPS for $19.95/month throughout its coverage area.

5) AT&T agrees to numerous conditions that amount to a return to tariffs and price caps for telecom and DSL resellers and special access (commercial) customers. AT&T can no longer lock competing local exchange carriers (CLECs) or DSL resellers in non-disclosure agreements.

Bonus: AT&T agrees to “repatriate” 3,000 jobs BellSouth had shipped overseas and locate at least five hundred of these “repatriated” jobs in New Orleans.

In tomorrow’s concluding episode, expect the FCC to release the final Order on Friday December 29 and the deal to close immediately thereafter.

Roll credits. Special thanks to Commissioners Copps and Adelstein, for their amazing tenacity and skill. Free Press, Consumers Union, CFA, and the rest of the public interest community that fought like Hell. The tens of thousands of people who filled comments. And Commissioner Robert McDowell, for his amazing act of ethical fortitude.

Stay tuned . . . .

My Annual Shameless Self-Serving Plug for My Employer

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As you all know, I do this blog in my own time as a labor of love and the firm belief that the World Needs My Wisdom. During the day, I work as Senior Vice President of the Media Access Project (MAP). The views expressed here are entirely my own, and I keep a strenous “Chinese Firewall” between my MAP work and my blogging.

But I’m still gonna use my wholly independent space here to make a special end of year appeal for for folks to contribute to MAP. Because while I love my job, I can’t have two labors of love.

To keep from compromising our advocacy, MAP does not rely on industry money. We get funded primarily by grants and by individual contributions (and the occassional attorneys fee from those clients who can afford to make a contribution to our work and advocacy). In 2006, we had major wins in Network Neutrality, Media Ownership, Munibroadband, Spectrum Reform, and a personal shout out for our work on the Adelphia transaction from Commissioner Adelstein. And I will now include a gratuitous link to a recommendation from a friend this past fall.

For 35 years, MAP has been kicking ass and taking names to protect the public’s First Amendment right to speak and hear information from a diversity of sources in the electronic media. We’d like to keep at it for another 35. I know MAP is competing with a hundred other worthy causes, and that it is late in the year to make a pitch for that last contribution in 2006 (MAP is a 501(c)(3), so any donations are deductible). But I’m going to ask anyway. If you can make any kind of donation, we’d all really appreciate it.

Stay tuned . . . .

FCC Last Call Part II: Cyren Call Sings Again

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They should have named the damn thing Phoenix Call, given how often this idea keeps getting resurected. OTOH, it better suits the nature of the beast to name it for creatures whose enticing song lured sailors to their deaths than for one of my favorite characters in Harry Potter.

As I wrote before on the Public Knowledge Blog, Cyren Call wants the FCC to give it 30 MHz of spectrum for free from the returned broadcast analog spectrum set aside for auction. Technically, Cyren Call wants that 30 MHz allocated to a “Public Safety Trust” that would then partner with a private sector organization, but it amounts to the same thing. In exchange, Cyren Call promises to build a nifty national broadband network that would be available to public safety entities when they need it. In order to finance the network without raising taxes or imposing costs on the public safety community, Cyren Call would operate the remaining 99.999% of capacity as a commercial venture. What a bargain! Of course, Cyren Call would kep any profit over and above actual expenses, to give it incentive to run the network “efficiently.”

I wish I did so well from doing good.

You would think that when public safety entities would get suspicious of a proposal that sounds horribly like: “DEAR PUBLIC SAFETY ENTITY. I OFFERING TO YOU MANY MEGAHURTS OF SPECTRUM. CONGRESS RECENTLY PASSED A LAW TO MAKE SPECTRUM AVAILABLE TO COMMERCIAL SECTOR, BUT I THINK YOU SHOULD HAVE IT.” But while Cyren Call has encountered the harsh response from the incumbent wireless harpies, over 1300 “HONEST TRUSTWORTHY PUBLIC SAFETY ENTITY” commentors supported the Cyren Call proposal. Unsurprisingly, most supporting comments from public safety folks emphasized that the part of the proposal they really, really liked was the part about getting even more spectrum.

But Kevin Martin, who seems to be having a “celebrate the incumbent telco harpy” meeting this month, has thrown in an interesting apple of discord. The FCC proposes to create a system similar to Cyren Call, but on the 24 MHz already assigned to public safety rather than grabbing yet more spectrum (you can read the full Order here. In other words, the FCC seems to be saying to the public safety community “O.K., so do you all think this proposal is so wonderful when it doesn’t bring you another 30 MHz of prime spectrum?” Of course, it helps that this plan parallels a plan proposed by Verizon Wireless back in September, which is remarkably simlar to the Cyren Call plan but in the spectrum already allocated to public safety and inserting the words “Verizon Wireless” in every place you had the words “Cyren Call.”

More below . . . .

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FCC Last Call — Part I: Cable

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The FCC sure had a busy day a its last open meeting on December 20, 2006. In addition to the oral argument for the indecency cases in the 2nd Cir., the FCC also had its last open meeting of 2006. While it is impossible to provide a thorough analysis until the FCC releases the full text of the orders it adopted, below find some brief impressions based on the what we know so far about the FCC’s cable franchising order, cable rates report. Later, a post on the surprise Return of the Incredibly Awful Cyren Call Proposal.

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Blog Tagged by Susan Crawford

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On Live Journal, we’d call this a meme. I usually don’t play, but how can I resist an invitation from Susan Crawford? In addition to running a fantastic and informative blog of her own, Susan is a member of the Board of Directors at ICANN and on the faculty of Cardozo Law School (Official motto: “With This Many Jews, How Did We Rank So Low In U.S. News & World Report? Goyishe Kop!”)

In any event, Susan has tagged me with the following meme:

“Post five things most people don’t know about you, and then tag five more people.”

I tag Sascha Meinrath, Esme Vos, David Isenberg, Tim Karr and Art Brodsky. My answers below.

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