Tales of the Sausage Factory

Comcast Not On Notice? They Were Told Point Blank!

It is a rather trite cliche that those who do not learn from history are doomed to repeat it. But in law, where concepts such as precedent and law matter a great deal, there’s an even bigger problem: Those who do not learn from history are likely to miss the obvious.

As we all know, Comcast has invested a lot of time in arguing that they lacked notice that the FCC would enforce the principles of the policy statement via a complaint against them. “How could we possibly have known?” Comcast has asked, winning sympathetic nods from a variety of folks. “Policy statements aren’t enforceable! How can you possibly punish us for something we didn’t know we might be held accountable for, all our public statements to the contrary?”

Well, let us suppose that Comcast was told two years ago today that the FCC would entertain complaints if Comcast blocked or degraded traffic. Would that make a difference? If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all, what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.

Because — Surprise! — exactly two years ago today, that is exactly what the FCC told Comcast.

More below . . . .

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My Thoughts Exactly

When access to the Internet is a matter of life and death, Adelphia fails it

I write this hasty note from a friend’s office in Colorado Springs. I’ve been in “the Springs” for going on two weeks, and I hope to get back to my home in Massachusetts some day. I’m staying with my brother and sister-in-law and their young children, trying to help them through a rough patch. Without going into particulars, both parents are fighting for their lives. Think, transfusions and blood counts. Think, paralysis, wheel chairs, emergency rooms. You get the picture.

Last Wednesday, the day after a storm which had knocked out the electricity for ten hours, a technician from Adelphia knocked on the door. “Tech #6” was his name. He informed me that he was going to check things out outside the house. His visit was a little mysterious, since we were having no problems with any service provided by Adelphia, but I said, “fine.” Shortly later he left, after first informing me that he had detected no problem. Ten minutes after the departure of Tech #6 I noticed that the Internet connection no longer worked. I had been working on the internet when he arrived. Everything had been working just fine until then.

Well guess what, friends, the Internet still no longer works at my brother’s house (although cable TV still does). I’ve spent about fifteen hours trying to solve the problem with Adelphia, most of that time spent on hold, and when not on hold, getting conflicting information from Adelphia customer-service people about whether or not there was an outage in the neigborhood, and when we might expect to have our service restored. I’ve been promised “call back within 24 hours” and “call back within the hour” five times. I’ve talked to supervisors and their supervisors. This has been as effective as talking to the wind and its supervisors. We have received no calls back from Adelphia. I’ve explained that there are disabled people in the house who cannot use the telephone and who rely on the Internet for daily consultation with their doctors. I’ve explained that loss of Internet connectivity was coincident with the uninvited arrival of Adelphia Tech #6. Evidently these considerations mean nothing to Adelphia. To borrow a line from Ernestine the Operator, “They don’t care. They don’t have to.” Or as Harold Feld might say, “being a monopoly means never having to say you’re sorry.” Every promise they have made has been broken.

Meanwhile, the loss of Internet connectivity has not only made caring for my brother and sister-in-law downright frightening, it’s made it virtually impossible to keep up with my day job. But, no time to lament that now. The kids will be coming home from school soon, and I better scoot to make sure everything is OK back at the house. But once things get a little bit back to normal, I’m going to investigate what this “filing a complaint with the FCC” business is all about. I hope that it provides a little catharsis, anyway.

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Tales of the Sausage Factory

FCC Staff really starting to get the hang of this “enforcement” thing . . .

In another sign that the FCC has gotten serious in crackdown on cable abuse of market power — and that this message has penetrated to the staff level — consider the case of the NFL Network and Time Warner.

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Tales of the Sausage Factory

The Adelphia Day of Judgment Comes

For over a year now, I’ve intermitently tracked the transaction between Comcast and Time Warner for the bankrupt Adelphia systems. At tomorrow’s open meeting (assuming no last minute delays for further negotiations), the FCC will issue its decision.

How we got here, what happens, and why you should care below.

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Tales of the Sausage Factory

Meanwhile….Back at the FCC….

The forces of media consolidation continue to make headway now that the FCC has a full contingent of 3 Republicans and 2 Democrats. At the June 21, 2006 meeting, the FCC, by 3-2 vote, began the process of reexamining the rules on broadcast media ownership. Last week, the proposed order approving the Adelphia transaction began circulating. It has a very narrow outlook and very meager conditions (so far). Procedural moves by Martin could cut off any further public debate or input as early as this Thursday (July 6).

But all is not yet lost. Chairman Kevin Martin had also intended to adopt a rule requiring cable operators to carry the additional digital streams of broadcasters after the DTV transition, the so-called multicast must-carry. The Dems have long refused to go along unless the Commission also resolved the long-pending proceeding to define new public interest obligations for digital broadcasters. Martin had long made it clear that he did not intend to impose any new obligations on broadcasters, and that as soon as he had a third Republican, he would ram through multicast without public interest obligations.

But it didn’t happen. Robert McDowell, the new Republican Commissioner, refused to go along. Either because he didn’t like the idea, or because he didn’t like getting pushed so hard so quickly on a controversial matter, McDowell refused to vote “yes” on the multicast item. As a result, Martin pulled the item from the June meeting.

What will McDowell do on Adelphia? With the Dems dead set against approval without firmer conditions, Martin needs both Rs to toe the line.

More analysis and speculation below . . . .

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Tales of the Sausage Factory

Adelphia Transaction Advances

Lost in the hub-bub of yesterday, the Federal Trade Commission voted 3-2 along party lines to approve the proposed division of Adelphia between Comcast and Time Warner and accompanying system swaps. What surprises me is not so much the result (getting conditions in this administration, particularly on a cable merger, was always a long-shot) but the timing. The FCC is still chewing over the data request it made in December, and the Adelphia Bankruptcy proceeding has been rescheduled for mid-March. It smacks annoyingly of a political favor done for a stalwart Republican (did we mention Brian Roberts, CEO of Comcast, is a big Bush supporter and fundraiser?) than the careful reasoning of the anti-trust agency charged with protecting the public. But that’s probably just my imagination post-State of the Union grumpiness combined with discovering how many big companies are spying on us for the government.

My analysis below . . .

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Tales of the Sausage Factory

Fighting Big Cable (and why it matters)

Most of my time the last few weeks has been taken up with cable ownership issues. If you want the short version and the immediate, easy action to take, click through to my friends at Free Press. For those interested in a little more detail and what else you can do, read on . . .

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Tales of the Sausage Factory

Tales of the Sausage Factory: Comcast pulls out of Disney Deal, But More Cable Consolidation Coming

Comcast has withdrawn its offer for Disney. Much as I’d like to claim this as a kill for the public interest community as some of my colleagues have, I think that was only part of the calculus. But don’t worry all you big media fans, because with Adelphia on the chopping block and MGM being courted, we can count on the media feeding frenzy to continue.

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