Emboldened by its success with net neutrality, the Federal Communications Commission (FCC) may be looking to shake up the way you enjoy media at home. At the behest of FCC Chairman Tom Wheeler, on February 18, 2016, the agency issued a Notice of Proposed Rulemaking (NPRM) about television set-top boxes. The proposal passed 3-2 on a party line vote, with the Democrats in favor and the Republicans opposed. The proposal—which would require cable companies to open access to set-top box technology to foster competition—has proved controversial, drawing commentary and debate from a wide spectrum of stakeholders. Very recently, it has met with criticism and opposition even among those who initially sponsored it, despite an eleventh hour compromise attempt by Chairman Wheeler. The agency has now taken the set-top box proposal off the agenda until next year….
President-elect Trump has made it clear that he is more than a little hostile towards the FCC’s implementation of net neutrality, both in his own words and, today, the appointment of two long-time adversaries of the policy to his transition team.
Jeffrey Eisenach is an economist and government veteran who worked at the FTC in the ’80s; he’s worked for a number of think tanks and research institutes that transmute industry money into custom expert critique, and under their auspices was a vocal opponent of the FCC’s current net neutrality rules….
Eisenach described net neutrality as “an effort by one set of private interests to enrich itself by using the power of the state to obtain free services from another” in his testimony before the Senate Judiciary Committee in 2014. He suggested ISPs have no reason to discriminate between services, and they engender innovation rather than stifle it.
[Editor Charlie sez: The title of this post could have been “Usual Suspects Are At It Again”]
In a letter submitted to the FCC late last week defending the Commission’s deeply flawed set-top box proposal, a group of professors make an incredible claim: Everyone is perfectly free to distribute copyrighted works online however they please. No license? No problem! According to these professors, many of whom teach copyright law, copyright owners have no distribution right in cyberspace. If you think this sounds wrong, you’re right! This claim sounds ridiculous because it is ridiculous, and it’s simply amazing—and troubling—that professors would mislead the FCC in this way.
The professors argue that a copyright owner’s “right to distribute encompasses the distribution of physical copies of a work, not electronic transmissions.” In support, they cite no case law whatsoever. There’s a good reason for this: None exists. The reality is that every single court that has ever considered this argument on the merits has rejected it. Time and again, this argument has been summarily dismissed by the courts. As the Nimmer on Copyright treatise puts it: “No court has held to the contrary on this issue[.]” Yet, the professors present this to the FCC as an accurate description of the law, with no equivocation whatsoever.
Read the post on Center for the Protection of Intellectual Property
Last week, the word going around town–and in the “Twittersphere”–was that Gene Kimmelman, the president of advocacy group Public Knowledge, was threatening that if FCC Commissioner Rosenworcel didn’t “get in line” behind Chairman Wheeler’s set-top box proposal that he would oppose her re-nomination for another term as an FCC Commissioner. This article in Fortune supports the rumor with a quote from Kimmelman that “[w]e’ll hold everyone accountable . . . [for not supporting the Chairman’s set-top box plan].” If you’re anything like me, you’re probably asking, “who does this?”
Who Does This?
In communications circles, perhaps no group has been as successful at converting political capital into the old-fashioned kind as Public Knowledge. After the group’s previous president, Gigi Sohn, became a senior adviser to FCC Chairman Tom Wheeler, Public Knowledge has carved out a lucrative niche for itself as a critical ally for commercial interests with regulatory goals, i.e., either seeking to escape scrutiny (e.g., Google), or to saddle their rivals with more regulation (e.g., Netflix and the CLECs).
The group’s current president, Gene Kimmelman, before taking over at Public Knowledge, was himself a political appointee for the first half of the Obama administration–as a Deputy Assistant Attorney General in the Antitrust Division of the Department of Justice. Kimmelman, as his Wikipedia page will tell you, “is a consumer protection advocate who specializes in competition law and United States antitrust law.”
If you’ve got the political power, I can kind of see–in a TV bad guy sort of way–why you might try to deliver a political threat to an FCC Commissioner; assuming you thought your victim believed you had the power to deliver on the threat, and the issue was so important to you that you didn’t mind looking like a cliché and a jerk at the same time. But still, why tell the world?
It seems to me that, if you go public with your threat, you make it harder for your threat to work. After all, the smaller the group of people that knows about your threat, the easier it is to give your target a “face-saving” way out.
Read the post on Jonathan Lee’s Telecom Sense blog
“We are still working to resolve the remaining technical and legal issues and we are committed to unlocking the set-top box for consumers across this country,” FCC Chairman Tom Wheeler, Commission Mignon Clyburn and Commissioner Jessica Rosenworcel said in a statement released about a half an hour before the meeting.