Category: Communications

Scotus Slaps Down FCC

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Roll George Carlin!

I agree with the outcome of the ruling, but it’s too limited for my taste:

The Supreme Court ruled Thursday that the Federal Communications Commission failed to give two television networks, FOX and ABC, advance notice of standards before punishing them for broadcasts in which outbursts of expletives and brief nudity were aired.

“The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent,” said Justice Anthony Kennedy, writing for the unanimous court.

The ruling does not affect the FCC’s policy banning indecency in TV broadcasting.

The court said that it did need not to address the First Amendment implications of the FCC’s indecency policy nor did it need to reconsider its prior indecency ruling in a 1978 decision regarding prolonged recitation of vulgar words.

The 1978 decision was bad, and vague, and they didn’t clear it up.

They took a very narrow ruling, and invalidated the fines because the FCC was arbitrary and capricious, and did not rule on the basic underlying issue. Ruth Bader Ginsberg felt the same way, and noted so in her concurring opinion.

Consumer Protection Theater

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The DoJ is investigating to see if cable companies blocking videos from competitors is illegal anti-competitive behavior.

Of course it is. Their goal is to keep raping their customers:

The Justice Department is conducting a wide-ranging antitrust investigation into whether cable companies are acting improperly to quash nascent competition from online video, according to people familiar with the matter.

Justice Department officials have spoken to several online video providers, including Netflix Inc. and Hulu LLC, those people said. Investigators have also questioned Comcast Corp., Time Warner Cable Inc. and other cable companies about issues such as setting data caps, limits to the amount of data a subscriber can download each month, these people said.

Representatives of all those companies and the Justice Department declined to comment on the investigation.

Cable companies provide both television channels and high-speed Internet access for many consumers in the U.S. With broadband Internet, consumers can watch individual programs or channels through online video services like Netflix, Hulu or Amazon, bypassing the cable company’s traditional bundles of channels.

Having invested billions of dollars building their networks, some pay-TV companies have shown little inclination to get out of the business of packaging television channels and become mere conduits for other companies’ data. Some major entertainment companies also have an interest in preserving the current model of television viewing because they want cable companies to take bundles of their channels, rather than just cherry-picking the most popular ones.

It’s an election year, and so nothing is going to come of this.

It’s just political posturing from an administration that sees corrupt incumbents as partners in the process.

It’s a Start

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But only a start.

The FCC has placed further restrictions on robo-calling:

Those aggravating automated telemarketing calls will be interrupting your dinner a lot less often.

After receiving thousands of complaints from consumers, the Federal Communications Commission clamped down Wednesday on unwanted robo-calling by approving sweeping changes to its telemarketing rules for wireline and mobile phones.

Even with the national Do Not Call Registry in effect — the initial effort to block those pesky calls — telemarketers have found ways around the rules. But the FCC’s latest effort is “closing a loophole,” said Marc Rotenberg, executive director of the nonprofit Electronic Privacy Information Center.

“This is an important step forward to make it easier for consumers to take advantage of the Do Not Call list,” Rotenberg said about the FCC’s changes. “These are additional safeguards to provide consumers greater protection.”

Telemarketing calls have a bigger effect on mobile phones, he noted, because those calls can eat up the minutes in consumers’ wireless plans.

Under the new FCC rules, telemarketers are required to obtain written consent, which can be in the form of an online approval, before placing autodialed or prerecorded calls to a consumer.

Telemarketers also must provide an automated opt-out mechanism during each robo-call so that consumers can immediately tell the telemarketer to stop calling.

The FCC also eliminated the “established business relationship” exception, which had allowed robo-calls to be placed to the land-line home phones of consumers with “prior or existing” associations with companies represented by telemarketers.

And the agency strictly limited the number of abandoned or so-called dead-air calls — in which consumers answer their phones and hear nothing — that telemarketers can make within each calling campaign.

The exemptions are still more than I would like to see, the exemption for non-oprofits, allows them to contract out to for-profit telemarketing firms, for example, but it’s a positive development.

They Are A Bunch of F%$#ing Ghouls!

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Sony Music, one of the slimiest record distributors out there, has just topped itself.

It raised prices on Whitney Houston’s music less than 12 hours after her death:

It’s easy to get so emotional about a singer after they’ve passed prematurely, as Whitney Houston did Saturday at the age of 48. But fans seeking to buy her digital albums in remembrance weren’t too happy at sudden price hikes so soon after her death.

The Brits picked up on it quickly, with London-based Next Web writer Matt Brian and The Guardian’s Josh Halliday both finding the price increases, which raised Houston’s “The Ultimate Collection” 2007 album from £5 (about $7.89) to £8 (about $12.63). In the United States, the cost is even steeper: $15 for the “Greatest Hits” collection at both Amazon (mp3 store) and iTunes.

Halliday found out that Sony Music increased the price of “The Ultimate Collection” at about 4 a.m. Sunday, not even 12 hours after news broke of Houston’s death. Fans were quick to point fingers at Apple for the anti-sale, but it turned out that when Sony bumped up the wholesale price of “The Ultimate Collection,” iTunes and other retailers automatically upped their pricing.

Not a fan, but sort of crap is cold.

H/t Chris in Paris.

OK, Props to Obama on This One

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If there is one area where he differs from his predecessor, it is his anti-trust enforcement.

Another example of this is the pushback against the AT&T/T-Mobile merger, where FCC Chairman Julius Genachowski has come out strongly against the deal, and now has appeared to have killed it:

AT&T and T-Mobile USA edged closer to scrapping their proposed merger, saying on Thursday that they had withdrawn their application to the Federal Communications Commission to join their cellular phone operations.

Deutsche Telekom, the parent of T-Mobile, and AT&T said in a joint statement that they still intended to pursue the $39 billion merger and would prepare for a federal antitrust lawsuit that is seeking to block the deal. But the companies also said that AT&T planned to take a $4 billion charge against earnings to reflect the potential breakup fees that AT&T would have to pay Deutsche Telekom if the deal failed to go through.

The actions followed the decision this week by Julius Genachowski, the F.C.C. chairman, that the merger did not meet the commission’s standard for approval. Mr. Genachowski sent other commissioners a proposed order to refer the case to an administrative law judge, the first step toward a commission move to block the deal, which would combine the second- and fourth-largest cellphone carriers in the United States.

The application withdrawal appears in part meant to prevent the F.C.C. from making public AT&T and T-Mobile records about the potential effects of the merger, records that could then be used by the Justice Department in the antitrust trial.

The companies have maintained publicly that the deal would not lessen competition and that it would create jobs in the United States. But the Justice Department has said that the merger would severely restrict competition, and F.C.C. officials have said that AT&T’s confidential filings indicate the merger would eliminate jobs.

The withdrawal of the F.C.C. application “is a tacit acknowledgment by AT&T that this story is all but over,” said Craig Moffett, an analyst at Sanford C. Bernstein. “The fat lady hasn’t started singing yet, but she’s holding the mike, and the band is about to play.”

While Genachowski is still too timid for my tastes, compared to the Republican appointees, particularly the execrable Michael Powell, he is doing a creditable job.

Heard About the Shooting at the Salon In California?

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Click for full size


See the License Plate Frame?

Normally, I don’t say anything about such things, but then a friend pointed out the license plate frame on the shooter’s truck. (See the join the tea party dot us URL?)

From reports, this is not a politically motivated shooting, and I have no reason to believe that it is.

That being said, what is clear is that there are a lot of teabaggers with easy access to firearms and a few screws loose, and there are a lot of people out there who are giving encouragement for them to go postal (Limbaugh, Beck, O’Reilly), and the fact that a few of them are going do decide to do very bad things as a result is more probable than just possible.

H/t Hedgehog at SP.

Things That Make Me Want to Smash My Clock Radio With a Sledge Hammer

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It goes off, and they have Bill “Felafel Man” Oreilly on pimping his book:

Last October, after NPR fired Juan Williams, O’Reilly went on Fox News and said NPR “is not a news organization” and “is basically a left-wing outfit” that “throw[s] out propaganda in violation of the First Amendment.” He called for “the immediate suspension of every taxpayer dollar going into the National Public Radio outfit” and likened the network to terrorists: “Terrorists want to create terror. Well what does NPR want to create? They’re intimidating, too.” To cap it all off, he called NPR “boring,” “dishonest,” and a “snake pit.”

………

So O’Reilly thinks NPR is a totalitarian snake-pit of pseudo-terrorism that shouldn’t get taxpayer money to promote its dishonest left-wing ideological agenda. Using taxpayer money to help sell his books, though, is perfectly fine.

And the interview itself was nauseatingly sycophantic.

Seriously, If I didn’t not donate to public radio because of their vociferous opposition to low power community radio, I would never give to them now.

How Quaint, Anti-Trust Law Enforcement

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The Department of Justice has filed papers to prevent the merger of AT&T and T-Mobile:

The US government is attempting to block the $39bn (£24bn) takeover of T-Mobile by AT&T on antitrust grounds.
The department of justice (DoJ) filed court papers in Washington on Wednesday in an attempt to halt the merger, claiming that it would “lessen competition substantially” in the telecoms market and harm consumers. AT&T said it was “surprised and disappointed” by the intervention.
“AT&T’s elimination of T-Mobile as an independent, low-priced rival would remove a significant competitive force from the market,” the DOJ said in its filing, which was first reported by Bloomberg.

The multibillion-dollar merger, announced in March, would create the largest mobile provider in the US with 130 million customers, and reduce the number of players in the market to three.

This is not surprising, except perhaps to AT&T, who greased a lot of palms lobbied extensively for support of this deal.

After all, not only is T-Mobile aggressively competing on price, but between it and AT&T, the two cmpanies control something like 90% of the GSM cell network in the US, which, unlike Sprint and Verizon’s competing CDMA, works everywhere in the world,* which means that if you wanted to use your phone internationally, then you would have only one choice.


We don’t care, we don’t have to…we’re the phone company.

The Death Star is saying that they will “Vigorously Contest” the filing, but considering the fact that on their own paperwork it was shown to be 10 times as expensive to buy T-Mobile as it would be to upgrade their network to 4G:

So just to recap what you’re reading here, if AT&T doesn’t buy T-Mobile and spends $3.8 billion instead of $39 billion then they will be able to cover 97% of Americans in 4 years less time. What’s the deal? AT&T continues to downplay this memo, hopefully it’s enough for some of the Attorney Generals on the fence to start asking the important questions.

Fundamentally the business plan for the incumbents is the same as it ever was, finding ways to leverage their natural monopolies to extract maximum rent from the general public.

Finally, as much as it pains me to say this, props to Obama and Holder for engaging in some real antitrust actions.

*God bless the international standards averse USA, where we use the English system of measurements, and CDMA, for no good reason at all.

Interesting Point

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Harold Feld (Full disclosure, he’s a friend, we were at his son’s Bar Mitzvah reception) explains why BART shutting down its cellular service in its stations to prevent a flash protest is more than a 1st amendment issue, but that it is a flagrant violation of the law:

I suppose I am really a telecom lawyer at heart. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations on August 11 had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM? From my perspective, and the perspective of traditional telecom law, BART could just as well have turned off the local central office and all this chatter about whether or not BART is a public forum is just a distraction.

Obviously, however, no one at BART thinks of cell phones as the phone system. In BART’s open letter explaining what they did and why it was cool, BART focuses on the First Amendment /public forum issue and completely skips the fact that they shut off a phone system. Mind you, I suppose I can’t blame them – much. A number of folks are asking if there is a right to cell phone service as if this were a novel question rather than something settled by decades of telecom law.

………

In California, where this took place, the governing case is People v. Brophy, 120 P.2d 946 (Cal. App. 1942). In Brophy, the California Court of Appeals held that yes, residents of California have a right to phone service. The federally protected right to access the phone network derives from the duty of common carriage imposed by Sections 201 and 202 of the Act. The California Court of Appeals further found that Earl Warren, then the California Attorney General, could not order the phone company to discontinue service to a person the Attorney General suspected of running a gambling operation by use of the telephone. The court explicitly found that only the California Railroad Commission (predecessor to the California Public Utilities Commission) can give an order in California to suspend phone service.

………

Like the Attorney General in Brophy, the BART is an instrumentality of the State of California. As in Brophy, the mere allegation that someone (or some group of someones) may use their phone for illegal purposes most emphatically does not confer authority to unilaterally shut off access to the phone network – even if that phone network is physically located within the BART. Why? Because the BART is an instrumentality of the state of California and is geographically in California. There is no BARTistahn, and the Directors do not get to decide this on their own.

………

We will savor the irony that the most eloquent annunciation of the right of individuals to access phone service without interference from law enforcement (absent due process) takes us from Earl Warren to Eugene “Bull” Connor.

(emphasis original)

And yes, part of the case law here does involve “Bull” Connor, and BART is taking his side in this.

It’s a good read, and clear and informative to the layman.

Murdoch Drops BSkyB Bid

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With almost every member in Parliament, of all the parties, chomping at the bit to pass a law to ban his bid to take over the UK’s biggest satellite network, he has announced that he will withdraw the bid:

Rupert Murdoch withdrew his bid for broadcaster BSkyB on Wednesday, as outrage over alleged crimes at his newspapers galvanized a rare united front in parliament against a man long used to being courted by Britain’s political elite.

The Australian-born billionaire’s U.S.-based News Corp, thwarted in a key move to expand its media empire in television, said it would keep its 39 percent of the highly profitable pay-TV network, but left investors guessing over whether it might try again to buy up the rest, or even sell up.

The withdrawal removes the most pressing political conflict the company faced. But a police probe and new public inquiries into the scandal and into media regulation as a whole may keep an unflattering spotlight on it and weaken the influence the 80-year-old media magnate has enjoyed in Britain for decades.

I think that this is a tactical move.  He’s holding onto his 30% stake in BSkyB, so if everything is back to business as usual in 9 months, I expect him to go for another bite at the apple.

I’m kind of hoping that  things won’t be back to “business as usual” in 9 months.

Yep, The Revolving Door is Shut down

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4 Months after approving the Comcast-NBC merger, outgoing Federal Communications Commissioner Meredith Attwell Baker will go to work for them as a lobbyist:

Washington’s revolving door is spinning again this week, with Federal Communications Commissioner Meredith Attwell Baker’s announcement that she is resigning to become a lobbyist for Comcast.

Baker’s last day on the commission will be June 3, a few weeks before the end of her term, and just over four months after she voted to approve the merger of Comcast and NBC Universal.
Federal Communications Commissioner Meredith Attwell Baker, shown at a hearing on Capitol Hill in March, is resigning to become a lobbyist for Comcast.
Enlarge Chip Somodevilla/Getty Images

Federal Communications Commissioner Meredith Attwell Baker, shown at a hearing on Capitol Hill in March, is resigning to become a lobbyist for Comcast.
Federal Communications Commissioner Meredith Attwell Baker, shown at a hearing on Capitol Hill in March, is resigning to become a lobbyist for Comcast.

Back in 2009, when the merger was proposed, Baker said on C-SPAN that the commission shouldn’t try to regulate too much.

“You shouldn’t attach conditions that are extraneous to the actual deal in front of you,” she said at the time.

And when the vote came last January, Baker complained that some extraneous conditions were there. She said that FCC rulings were too regulatory and could discourage job-creating investment. Still, she voted with the 4-1 majority for the merger.

An important point to make here is that she is not a Bush retread finishing out a term.  She was appointed by Barack Obama.

She pretty much had to be a ‘Phant, the law requires that no more than 3 members of the 5 member commission belong to the same party, but she was hip deep in Bush policy and deregulation, and she is the daughter of the smarmiest bastard ever to hit Washington, DC, James Baker.

In a sane Washington, DC, Comcast would let her go now that the proverbial cat is out of the bag, but I think that sane Washington, DC is an oxymoron.