Tales of the Sausage Factory

Does Comcast Fear To Win Too Much?

I grant I wasn’t there, but pretty much everyone who was seems to think the D.C. Circuit oral argument in the Comcast/BitTorrent case was an utter disaster for the FCC/pro-NN forces and a total triumph for Comcast. Given my previously voiced opinion about the judicial activists on the D.C. Circuit, I can’t say this surprises me even in light of the previous precedent. Indeed, from what I have heard, the D.C. Circuit appeared breathtakingly eager to rush past the procedural issues and declare that the FCC has absolutely no jurisdiction to regulate anything an ISP ever does, ever.

So why has Comcast, which (along with its trade association) has argued that it would violate its First Amendment rights for the FCC to regulate its conduct as an ISP, posted this blog entry to explain that of course they totally support FCC regulation of broadband ISPs, under the right circumstances, etc.?

Answer: Comcast fears to win too much. For Comcast (and other broadband providers), the ideal world consists of an FCC with jurisdiction but no authority. That is to say, they want an FCC that appears to have authority to do something, but when push comes to shove is prevented from actually doing anything Comcast doesn’t like. Which is why Comcast wanted to win on procedure and, perhaps, get the court to threaten the FCC that it had no authority. In that universe (which could still come to pass), Comcast could keep Congress from giving the FCC explicit authority by saying it has jurisdiction but keep the FCC from doing anything by claiming that it lacked authority for any specific action.

But there is every indication that the D.C. Circuit will go much further, and find that the FCC has no jurisdiction to even consider regulation of ISP behavior no matter what the circumstances, because it doesn’t believe that ancillary authority exists. While that sounds like exactly what Comcast would want, it scares them silly. Because even the fear of this sort of huge loss creates a panic that could lead Congress explicitly delegating the FCC extremely clear and unambiguous authority.

More, including a shout out to all my fellow Buffy the Vampire Slayer fans, below . . . .

UPDATE: According to this blog post by Washpo Reporter Cecilia Kang, I’m not the only one thinking this way. A few more choice remarks from NCTA’s Kyle McSlarrow about how the FCC’s role is to be a big ATM for his members may get even this Congress off it’s rear end.

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Posted in Series of Tubes, Tales of the Sausage Factory | Also tagged , , , , , , , , , , | 3 Comments (Comments closed)

Tales of the Sausage Factory

Broadcast Flag Through The Back Door — Yet Another Episode of “Outsourcing Big Brother.”

The Motion Picture Association of America has asked the FCC to give it a waiver of something called the “selectable output control” rules for cable boxes. As usual, this apparently minor request for a waiver of an obscure FCC regulation of unknown origin, governing a highly-technical and mind numbingly boring set of rules about cable set-top boxes, hides a bold power grab designed to rip off every owner of a Tivo, VCR, or other perfectly legal recording device available to consumers to engage in the legal practice of recording television programs to watch them later (“time shifting”).

For details on this latest effort to circumvent limits on government by outsourcing the process to an industry cartel, aka “outsourcing Big Brother,” see below . . . .

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Posted in Fighting the IP Mafia, Tales of the Sausage Factory | Also tagged , , , , , , | 2 Comments (Comments closed)

Econoklastic

The 77% Solution, or Even with Three Different Methods You Still Get a Take Rate Greater than 70%

There has long been reason to suspect the data which the cable industry provides to various reporting services like Warren Communications News, Kagan Research, and Nielsen Media Research for U.S. cable coverage and subscribers precisely because the cable industry has considerable incentive to lie about it. Specifically they have incentive to under-report both coverage and subscribers so as to avoid a finding that the 70/70 limit – that seventy percent of American homes are passed by cable and that seventy percent of homes subscribe to cable – has been reached, thus triggering additional FCC regulation of the industry. The numbers have danced around the mid- to upper-60% range reported in these sources since 2004, only tipping over in Warren Communications News’ Television and Cable Factbook, which recently reported a 71.4% take rate to the FCC.1 When it became clear that the FCC was prepared to take action to invoke the 70/70 rule on the basis of the Warren data, the managing editor of Warren Communications News’ Television and Cable Factbook immediately called its own data into question in an interview in Communications Daily:

The figures from the Television and Cable Factbook aren’t well suited to determining whether the threshold has been met, said Managing Editor Michael Taliaferro. Taliaferro said Factbook figures understate the number of homes passed by cable systems — and the number of subscribers — because not all operators participate in its survey. “More and operators are just not giving up” those numbers, he said. “We could go with two dozen footnotes when we start to report this data.” Cable operators participating in the Factbook survey said they passed 94.2 million homes and had 67.2 million subscribers.

The FCC official who asked him for the cumulative figure didn’t say how it would be used, Taliaferro said. If he had known, he would have provided a list of caveats, he said. “It would have been a very lengthy email,” he said. Taliaferro said he did point out the shortcomings in a phone conversation with the FCC official but didn’t put it in writing because he wasn’t asked to. “I had no idea what they were doing with it.”2

More below…

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Posted in Econoklastic, General | Also tagged , , , , , | Comments closed

Tales of the Sausage Factory

How the FCC Made Star Trek Possible

Today marks the 40th Anniversary of Star Trek, now referred to as Star Trek: The Original Series (or just ST:TOS). I make no secret of my love for ST:TOS, and credit it with (among other things) imbuing me with a sense of idealism and optimism against the odds. But few realize how FCC regulation of broadcasting made the creation and syndication of Star Trek possible — and why deregulation has made it so much harder for something like Star Trek to hapen today.

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Posted in Tales of the Sausage Factory | Also tagged , , , | 1 Comment (Comments closed)
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