Tuesday, November 19, 2013

Defying Washington to Save the Internet

Co-authored by S. Derek Turner

It’s a rarity in Washington to see a communications bill that actually serves the public.

But a bill Sen. Jay Rockefeller introduced last week is a direct challenge to the communications cabal that controls much of our media in the United States.

For that the Consumer Choice in Online Video Act faces very long odds. But Rockefeller’s bill does so much for Internet users and video watchers that it deserves everyone’s support.

Sen. Rockefeller, who is serving out his final term in Congress, has clearly been emboldened by the open Internet movement. Over the past decade, millions of people have spoken out to preserve Net Neutrality, stop online censorship and protect our rights to connect and communicate. We recognize the power of free speech and access to information that the Internet enables, and we’re using the Internet in growing numbers to protect these rights against corporate and governmental abuse.

Gatekeepers have historically stood in the way of open communications. Some of this gatekeeping happened for technical reasons, some for autocratic reasons, but much existed simply because gatekeeping is profitable.

The open Internet threatens this traditional business model. It’s a distribution platform that eradicates all other monopoly distribution platforms. In recent years, the companies that control Internet access — including AT&T, Comcast and Verizon — have stepped up efforts in Washington to undermine protections for Internet users and gain control of the network.

Building New Barriers to Video Watching

Thanks to the open Internet and the dozens of free voice and video-calling apps that use it, the days of having to pay Ma Bell $5 per minute to call long distance are long gone. And even though the right to record is under assault, anyone with a smartphone and an Internet connection can act as a citizen journalist — and reach an audience of millions.

But just as fast as the Internet tears down old barriers, gatekeepers scramble to build new ones. Nowhere is this more evident than in the video market, the one area the Internet has yet to completely disrupt.

When Congress last overhauled our communications law in 1996, we were promised that the Internet, as a neutral delivery platform, would eradicate cable’s stranglehold on the video market. But today the cable monopolists are stronger than ever, and folks looking for alternatives are faced with a maze of cumbersome and often inadequate choices.

For most people, the cable company is also the Internet service provider. And that company isn’t keen to see customers use their broadband connections to reach other video providers.

Cable has a history of blocking apps that deliver video, imposing unnecessary and pricey limits on the amount of data customers can consume, and favoring their own video content over that of their online rivals.

Policymakers with the power to stop these anti-competitive practices have stood by while gatekeepers created new barriers to video competition, stifling innovation and limiting what users can do with their Internet connections. And Congress hasn’t been willing to challenge the cable cabal.

Until now.

A Bill for New Media Users

Rockefeller’s bill tears down most of the blockades gatekeepers are using to protect their legacy monopolies. And it goes further than that, giving the Federal Communications Commission the power to make rules that guarantee people can access video content via a truly open and competitive network.

The bill notes the substantial First Amendment interest in “promoting a diversity of views” — and in preventing ISPs from discriminating against other content providers.

The bill also includes many findings that regulators and politicians beholden to industry are loath to acknowledge. For example, it states that ISPs’ growing use of data caps “can negatively impact the competitive position of online video distributors and the appeal of their services to consumers.”

The bill also notes that ISPs “have an increased incentive to degrade the delivery of, or block entirely, traffic from the websites of other online video distributors, or speed up or favor” their own content, because “online video distributors pose a threat” to ISPs’ own video businesses.

Rockefeller’s bill makes it illegal for any ISP to “block, degrade, or otherwise impair any content provided by an online video distributor,” and defines such distributors to include anyone from the tiniest nonprofit outlet to online giants like Netflix and Apple.

But it doesn’t stop there. The legislation prohibits ISPs from using underhanded tactics to “deter competition.” And to ensure that ISPs don’t play games, the law requires any provider that has data caps to use certified meters and fully disclose these practices to consumers before they sign up.

And in barring ISPs from favoring their own video content, the Consumer Choice in Online Video Act also closes one of the biggest loopholes in the FCC’s Open Internet rules, the so-called “specialized services” exception.

Rockefeller’s bill outlaws many of the practices the industry uses to prevent online companies from accessing content. The bill bars cable companies from using contracts that prevent content owners from selling to online distributors, a practice that Time Warner Cable’s CEO recently admitted was a common tactic used to squash competition.

Sending a Signal to Washington

The legislation doesn’t offer Internet users complete protections against Net Neutrality violations since it pertains only to video. But Sen. Rockefeller’s willingness to buck industry pressures to kill off Net Neutrality sends a strong signal that preserving the free and open Internet is a legislative priority.

Rockefeller’s bill contains many other public interest protections. Earlier this year when CBS and Time Warner Cable were squabbling over retransmission fees, CBS blocked all TWC Internet users from accessing video content on CBS’ Web portal, content that anyone else could view. The legislation outlaws this practice of punishing innocent customers caught in the middle of industry food fights.

It also bars content owners from forcing online distributors to buy a bundle of unwanted channels just to purchase a single in-demand channel. Companies like Viacom use this tactic to force people who want to watch Comedy Central to also pay for unpopular networks like CMT Pure Country or TeenNick.

The Consumer Choice in Online Video Act is a dream for online users and a cable CEO’s worst nightmare — which is why many D.C. insiders think the bill has little chance of becoming law.

That speaks volumes about our broken Congress. Washington’s conventional wisdom is that industry dictates public policy. But we aren’t counting Rockefeller out.

It’s no coincidence that he introduced this far-reaching legislation one year before his retirement. But Sen. Rockefeller still chairs the committee with the best chance of taking on the cable cabal’s political power.

And if the growing Internet rights movement mobilizes behind Rockefeller, we can blow past these gatekeepers and pass the Consumer Choice in Online Video Act.

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