Net Neutrality: Medium or Message

While everyone’s attention was focused on the potential for a government shutdown, House Republicans passed a bill to repeal federal rules barring Internet service providers from blocking or setting different prices for some uses of their networks. According to the Associated Press, in voting to repeal rules on “network neutrality” set down by the Federal Communications Commission, Republicans claimed that the FCC lacked the authority to impose such rules.

“The FCC power grab would allow it to regulate any interstate communication service on barely more than a whim and without any additional input from Congress,” said Rep. Greg Walden (R, OR), a sponsor of the legislation. The vote along party lines to pass the bill, H.J. Res. 37, was 240-179. This is the same House that voted 228-192 on a bill to defund National Public Radio last month. It is yet another bill unlikely to pass in the Senate and doomed to a presidential veto if it should.

The concept of “net neutrality", according to the New York Times, holds that companies providing Internet service should treat all sources of data equally. The debate centers on whether those companies can give preferential treatment to content providers who pay for faster transmission, or to their own content, “in effect creating a two-tier Web, and about whether they can block or impede content representing controversial points of view.”

Before the House took up a joint resolution condemning the new Internet access rules, Verizon and MetroPCS brought a lawsuit to court that challenged the FCC’s pending rules to keep Internet service providers from blocking access to certain Web sites or applications. The United States Court of Appeals for the District of Columbia circuit rejected the suit as “premature.” Although considered by some as a first-round victory for the F.C.C. and its chairman, Julius Genachowski, the real battle over the commission’s attempt to regulate broadband providers has only just begun.

In a recent meeting with Wall Street Journal reporters and editors, Genachowski said, “I don’t see any circumstances where we’d take steps to regulate the Internet itself.” He added, “I’ve been clear repeatedly that we’re not going to regulate the Internet.” In trying to craft new rules that would require phone and cable companies to treat all legal Internet traffic that flows over their lines equally, the FCC had proposed a draft of “net neutrality” rules last fall. “The communications line piece is something that we have historic responsibility for [in] promoting competition and promoting innovation. So that is the distinction,” Genachowski said.

Internet service providers, of course, say there’s no need for the government to step in, as do other opponents of the FCC.

Freedom Works called the FCC rules “job-killing regulations [that] would involve significant new controls on the Internet that would have significant implications for investing in innovation and broadband deployment.” In urging passage of HJR 37, it posted, “The FCC should respect this fact—and the careful separation of power laid out in the US Constitution—and not make such sweeping law where the legislature has not.” Naturally, anything that conservative organizations and Republicans don’t like, out comes the Constitution.

Another organization, Americans for Prosperity went as far to charge that “Chairman Genachowski, a long-time executive at Barry Diller’s IAC/InterActiveCorp, one of the leading corporate beneficiaries of net neutrality, is currently attempting FCC’s second foray into Internet regulations.” The fact is that no FCC commissioner may have a financial interest in any FCC-related business.

Consumers Union opposed the legislation. “Internet providers should not limit your choices to their preferred sites,” said Parul P. Desai, the organizations policy counsel. “Key stakeholders – from consumers, to small business, to civil rights groups and religious organizations – have overwhelmingly voiced support for Open Internet rules as well as the FCC’s authority to implement and enforce them.” Unfortunately, they did not refer to the Constitution in their opposition.

Democratic policymakers called free and open communications “a vital part of American democracy.” At the Free Press’s National Conference for Media Reform, House Minority Leader Nancy Pelosi (D, CA) said she was pleased by Democratic opposition to the GOP-backed resolution, which cleared the House under the cover of the looming shutdown. “No one should be guarding the gate on the Internet,” Pelosi said. She added that the resolution isn’t likely to gain support in the Senate. “I don’t think this bill is going anyplace.”

As I pointed out in Blogcritics two years ago, there is a difference between a regulation and a law. As an independent regulatory agency, the FCC has the power to impose regulations at any time without action by either the executive or legislative branches. The new regulations, which the FCC calls its Open Internet Order, are the rules that House Republicans attacked.

Once again House Republicans have backed a losing proposition as they did with their attempt to defund National Public Radio. The GOP opposition to Net Neutrality regulations favors corporations over consumers. At least we know where they are coming from. This time it is not about the message. This time it is about the medium and the corporations that own it. It is another win for losing.

Article first published as Net Neutrality: Message or Medium on Technorati.

Fairness: the Fake Debate

Someone needs to explain why it is that conservatives continue to insist that liberals want to reinstitute the FCC’s 1949 Fairness Doctrine. While it is true that the old regulation is brought up from time to time, it has no traction in either the House of Senate. The administration is opposed to it. The Supreme Court would rule against it. Still, conservative talk radio continues to chant about the “Hush Rush Bill’ as if were a real threat with real backing. It isn’t, it doesn’t and it’s not going to happen. Nor will the sky fall.

Before you start to write your commentary about Nancy Pelosi, stop for a moment. The speaker of the House has been quoted as saying she supported the Fairness Doctrine by John Gizzi, Political Editor of Human Events, which calls itself the “Headquarters of the Conservative Underground.” He asked a yes-no question and she said yes at a Christian Science Monitor luncheon they both attended. She also said no, she didn’t think it would come to the floor for a vote. It is an issue for which the speaker does not express a majority opinion.

Perhaps someone can also explain how it is it that conservatives (“disposed to preserve existing conditions, institutions, etc., or to restore traditional ones, and to limit change”) use the word liberal as an adjective of derision as in the term liberal media or liberal socialist agenda such as “state aid for the betterment of the working classes.” That socialism is some kind of evil.

How could mainstream media be anything other than liberal (“favorable to or in accord with concepts of maximum individual freedom possible, esp. as guaranteed by law and secured by governmental protection of civil liberties”)? Being liberal minded requires reporting both sides of any issue, which defines fairness in and of itself without any regulation to be fair.

The conservative mantra that their champion Ronald Reagan struck down the Fairness Doctrine is incorrect. His son Michael claims in his blog, Michigan Redneck II, “My dad, President Reagan, killed the ‘Fairness Doctrine.’ As a result, this rule change allowed Rush, Hannity, and me to have radio talk shows — that’s why the new proposal to bring it back is being called the ‘Hush Rush’ bill. Now the liberals are dying to shut us up.”

No, the president did not. The FCC overturned the regulation. What President Reagan did was to veto a congressional attempt to make the regulation a law. The Supreme Court set the stage for the FCC to dump the regulation in 1984 (FCC v. League of Women Voters, 468 U.S. 364). The regulation came up again in 1993 and failed. Neither Congress nor the Clinton administration supported it.

There is a difference between a regulation and a law. Section 315 of the Communications Act of 1937 was federal law passed by Congress. It required broadcast stations to offer "equal opportunity" to all legally qualified political candidates for any office if they had allowed any person running in that office to use the station. The Fairness Doctrine was simply FCC policy, a regulation the FCC dumped as unconstitutional in 1987. After Meredith Corp. v. FCC, the Supreme Court declared that the Doctrine was not mandated by Congress and the FCC did not have to continue to enforce it.

For the record, as an independent regulatory agency, the FCC has the power to reimpose the Fairness Doctrine at anytime without action by either the executive or legislative branches. It should not be confused, but often is, with the Equal Time rule. The Fairness Doctrine deals with matters of public importance, not political opinion. The Equal Time rule only deals with political candidates.

Nonetheless a fake debate about the Fairness Doctrine continues. “In 1980 there were fewer than 100 radio talk shows nationwide. Today there are more than 1,400 stations entirely devoted to talk formats. Liberals, not satisfied with their domination of academia, Hollywood and most of the mainstream media, want to kill talk radio, where liberals have been unable to dent conservatives' dominance,” George Will wrote in the Washington Post.

Will’s colleague Michael Gerson wrote that “three hours of Rush Limbaugh on a radio station would have to be balanced by three hours of his liberal equivalent. This may sound fair and balanced. But it would destroy the profitability of conservative talk radio and lead other outlets to avoid political issues entirely -- actually reducing the public discussion of controversial issues.” They also both wrote that in 1987 President Reagan “eliminated” (Will) or “overturned” (Gerson) the 1949 FCC regulation.

While they are both wrong about Reagan, they do not demonstrate much knowledge about radio. If conservatives dominate talk radio, it is because it’s cheap. Talk radio doesn’t cost a radio station anything except electricity. Typically the air-time is brokered and the talker pays for the time. Rush Limbaugh, Laura Ingraham and Dr. Laura Schlessinger, for example, are not so much radio personalities as they are media companies. Their concern about the Fairness Doctrine is literally lip service.

They do have large audiences and wield influence. Sometimes their influence works against them. One of my former radio colleagues, Gary Nelson of WFOR TV4 Miami, recently wrote, “About the vitriol on talk radio, in doing a piece the day after the election, on Bush losing the Hispanic vote, I interviewed a Colombian-American voter who said he had been a Republican all his life and had never voted for a Democratic presidential candidate. He said the ‘mean-spirited’ attacks on Obama changed him. ‘Rush Limbaugh cost John McCain my vote,’ he said.”

President Barack Obama is expected to appoint longtime friend Julius Genachowski as chairman of the Federal Communications Commission. Mr. Genachowski also has a Harvard background as a legal scholar and was a Supreme Court law clerk. That may lead him to play a stronger role in determining legal strategy on FCC court cases, normally a Justice Department task. When Genachowski does become FCC chairman, his biggest immediate task will be working on the digital TV transition. The Fairness Doctrine does not appear on his docket.

As to the conservative assertion that the White House will sign Fairness Doctrine legislation, that is far from likely. The President opposes it. As he said in his inaugural address, “To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history.”

The broadcast media of 1949 has its own chapter in history, as will the Internet sixty years from now. Today we have right wing and left wing media. Some are even in the middle. There is one thing that Rush and both Lauras have to fear about being silenced: listeners changing stations. As to a new, improved, rebranded Fairness Doctrine, forget about it. It is not going to happen.

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Originally published in Blogcritics Magazine, February 1 2009

No Viewer Left Behind

I objected when Monday Night Football moved from over-the-air broadcast television to cable/satellite ESPN after 35 years on ABC. Making fans have to pay to see televised football is nothing short of un-American, I argued to no avail. I objected last year when the NFL channel kept exclusive rights to broadcast a Thursday night game only available on satellite, which you cannot receive if you do not have a southern exposure for a dish. The once public airwaves ceased to be public. What next, I thought: the public will have to pay to watch public television? I hate being right.

Congress mandated the conversion from analogue to all-digital television broadcasting presumably because all-digital broadcasting would free up frequencies for public safety communications such as police, fire, and emergency rescue. The government says that DTV technology will allow broadcasters to offer “television with movie-quality picture and CD-quality sound.” In addition, the switch frees up valuable chunks of wireless spectrum for public safety and those airwaves can also be used for commercial wireless services, which are private interest.

When the legislation originally came up, television stations were supposed to broadcast analog and digital signal in parallel until 2017. The Bush administration dropped that stipulation and the FCC auctioned the airwave spectrum. The wireless biopoly of AT&T and Verizon Communications paid a collective $16 billion at the FCC auction. Back in 2005 when the Republican Congress passed the legislation requiring the conversion, they set February 19, 2009, as the conversion deadline.

However, a glitch occurred. According to the Nielsen Company more than 6.5 million homes are still unprepared to receive digital signals. The government said 1.4 million households are on a waiting list for an equipment subsidy that is financed by the FCC auction. The National Telecommunications and Information Administration, an arm of the Commerce Department, said it had hit its $1.34 billion funding limit set by Congress to pay for converter box coupons. In other words, the government subsidy for converter boxes ran out of money.

At that point the Obama administration decided to push for a delay because the government is not doing enough to help Americans prepare for and navigate the transition. The issue seemed to especially affect rural, poor or minority communities. The Senate GOP opposed the delay. Congressional lines in the sand began to appear.

Enter Senator John Rockefeller of West Virginia, the incoming chairman of the Senate Commerce Committee.”Over 2 million Americans are waiting to receive a coupon to help them offset the cost of equipment that will help them manage the transition,” he said. “Millions more don't have the proper information they need." Rockefeller contended that delaying the transition by three months would give the federal government time to fill a backlog of consumer coupon requests and also to give the government and the FCC more time to prepare for the change. This week a unanimous Senate voted to postpone the upcoming transition from analog to digital television broadcasting.

The House had its own proposal but was expected to go along with the move that was proffered by the Obama administration. Enter Representative Henry Waxman of California, Chairman of the House Energy & Commerce. His bill sought to change the DTV Transition and Public Safety Act of 2005 to insert the new date. It would also move the expiration date of any DTV-to-analog coupons that have expired to Sept. 15, 2009.

The Consumers Union weighed in and wrote to Waxman’s Committee, “We are concerned that millions of at-risk consumers, including rural, low-income and elderly citizens across the country could be left with blank television screens.” In addition to consumers having “fewer resources than ever” to buy converter boxes, this is “not the right time to ask consumers to dig deeper into their own pockets to pay for the miscalculation by the federal government."

The House Bill failed by 26 votes and GOP members claimed victory, warning that postponing the transition would confuse consumers. The 258-168 vote did not clear the two-thirds threshold needed for passage. The February conversion stands, at least until the House Bill comes to the floor again. By regular majority vote, Democrats have sufficient votes to pass the legislation and send it to the President.

The National Telecommunications and Information Administration had almost 3 million coupon requests on a waiting list last week and those people will not receive their coupons before February 17. The NTIA is sending out new coupons only as older, unredeemed ones reach a 90-day expiration date and free up more money. To date, more than half of coupons that have reached their 90 day cycle have been redeemed and more than 13 million coupons have expired.

Although a minority, many of our elderly folks for whom rabbit-ear-antenna television is their entertainment may be looking at black screens next month. The AARP’s advice is pragmatic – “get a special converter box that will make your analog set work” or “subscribe to a cable, satellite or other pay service for all the sets in your home, or buy a new TV that will receive digital signals.”

While I can buy into the public safety aspects of using analogue television frequencies for public safety, I cannot buy into making people pay for public airwaves. The same House legislators who defeated a three month delay also decide Public Television and the National Endowment for the Arts funding. The Obama administration may know who its friends are, but millions of viewers are now left behind.

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Originally published in Blogcritics Magazine, January 29, 2009

More Fairness

The Fairness Doctrine was a 1949 FCC regulation, not a law. When some in congress tried to give it a new name and make it a law, Reagan vetoed it in 1987. It came up again in 1993 and congress did not endorse it. Despite Nancy Pelosi’s pandering to the Christian Science Monitor on the topic, or George Will's sweeping generality in the Post that "liberals have been unable to dent conservatives' dominance" of talk radio, the doctrine is rather problematic under the Constitution's First Amendment. What I failed to point out is that Rush Limbaugh understands self-promotion. The election loss by his candidate and the Alaskan rube Rush idolizes demonstrates that conservative talk radio has little influence.

Augie Grant, PhD, a former radio colleague of mine, wrote of my posting “individuals on talk radio (on all sides of the political spectrum) are guilty of gross misrepresentation. Some is simple hyperbole, but there are enough outright falsehoods that intelligent people can't help but wonder whether there is a better option. Personally, I would like to hear that owners and hosts are willing to consider ‘truth’ as a value, but I'm not holding my breath. Perhaps the audience will wise up and leave the blowhards behind, but conflict is much more entertaining than rational discussion.”

“There is little question that the Fairness Doctrine stifled speech,” Augie also wrote. “In practice, it led to the idea that an issue has only two sides, an argument that is as naive as it is limiting. In a lecture on our campus (University of South Carilina) last week, Bill Kristol of The Weekly Standard was asked about the Fairness Doctrine and shot back that liberals had their own voice on talk radio: NPR.”

To which another former radio colleague, John Posey, wrote that “the reason to go to NPR as an alternative - TRUTH.... regardless of your political persuasion. I never feel as though I have to shower after listening to NPR.” John also wrote “I have issues with the Fairness Doctrine and do not want to stifle anyone's speech. I've listened to left and right talk and don't care for either for the very reasons Augie (above) . . . presented. I do believe that Limbaugh and Hannity have a certain self-serving, self-promoting, invective-spewing quality and have taken ‘pathological’ to new levels. That being said, the problem is not the shrieking of Rush and Hannity per se, it's the vast number of ‘followers’ who believe every word they say.”

That hardly seems fair.

This That and the Other Thing

Back in September in my posting titled Radio or Not, I took issue with the Post’s George Will over his assertion that a Democratic Presidency would mean the return of the so-called Fairness Doctrine. I wrote that such a notion is bunk since conservative talk radio is cheap to produce. Will’s colleague Michael Gerson has brought it up again. They probably share a new corner of the Post’s commissary and both wrote that in 1987 President Reagan “eliminated” (Will) or “overturned” (Gerson) the 1949 FCC regulation.

No the president did not. The FCC overturned the regulation. By the way, as an independent regulatory agency, the FCC has the power to reimpose the fairness doctrine at anytime without action by either the executive or legislative branches. What Reagan did was veto a congressional attempt to make the regulation a law. The Supreme Court set the stage for the FCC dumping the regulation in 1984 (FCC v. League of Women Voters, 468 U.S. 364). The regulation has come up since then, but congress would not support it and nor did the Clinton administration.

The broadcast media of 1949 is a chapter of history, as will be the Internet. So who keeps coming up with the fairness doctrine (beware, brother, beware) with respect to the newly elected administration, other than Will and Gerson? I am going to guess they got it off of talk radio. Besides, other than the Palin worshipping Rush Limbaugh, who cares? That is unless Gerson and Will have information that the Obama administration plans to “pack” the FCC.

Anyway, there you have the “This” part. Now, here is the “That.” I have previously written that both “W and Cheney deserve a place in history – in a penitentiary.” I call on all US citizens to urge the president-elect to offer no blanket pardons to Misters Bush, Cheney, Rumsfeld or Rove. I urge their prosecution for “high crimes and misdemeanors” (Constitution, Art. II Sec. 4).

Here is another by the way. “High,” according to Jon Roland of the Constitution Society, “does not mean ‘more serious’. It refers to those punishable offenses that only apply to high persons,” more specifically public officials. I have posted a poll on that topic at http://www.youpolls.com/details.asp?pid=4143 You can vote and see the results for the next few weeks. I will be writing about what we find later.

And now, here is “the Other Thing,” also known as the Alaska Senatorial race. As of this posting, with 60% of the vote counted, Democratic challenger Mark Begich leads the incumbent Republican convicted felon Ted Stevens by 1022 votes. To check them, go to http://www.elections.alaska.gov/08general/data/results.htm .