FCC Moves to Halt Internet Service Provider Content Discrimination and Preferences

The Federal Communications Commission has moved to keep Internet service providers from limiting or unreasonably discriminating against content provided by competing services

The regulations are designed to keep telephone and cable companies that provide phone services from using their Internet services to limit use of Skype and other online telephone services. It is also intended to halt them from making content provided by audio and video service providers they do not own less desirable by limiting downloads from firms such as Netflix or Hulu or providing faster service only for their own content.

The rules are designed to maintain a level competitive position on the Internet and to restrict the abilities of companies that dominate access to the Internet from using oligopolistic control of the service points to harm content competitors.

The regulations require that services allow their customers equal access to all online content and services, but allow the services some flexibility to management network congestion and spam as long as the rules are clear and not anti-competitive.

The rules apply to fixed line services, but do not apply equally to wireless telephony which is becoming the primary means of Internet access though smart phones and electronic tablets and e-reader. Mobile phone providers are permitted to provide preferential access to their services or selected partners, but the rules forbid mobile providers from blocking access to competing sites and services. Mobile services are given more leeway to manage their networks because capacity is more limited than on the Internet.

The regulations are an important step in ensuring that major service providers such as Comcast and Verizon are not allowed to use their dominance in service provision to harm other companies and the FCC should be applauded for its efforts. Such companies have in the past shown their willingness to take advantage of their monopoloy power and are not widely noted for their consumer friendliness.

Major service providers and Republicans are vowing to fight the move, arguing that the FCC does not have the authority to issue such regulations. If the courts side with them on the issue, Congress should explicitly give it the authority or empower the Federal Trade Commission to ensure competivieneess online.

Competitive Struggles Among Television Platforms

Since the emergence of cable and satellite television services there has been struggles among platforms to increase their attractiveness to audiences and to draw market share from terrestrial television in developed nations. These struggles have had affected content producers, broadcasters, platform operators and regulators attempting to fashion socially optimal broadcasting systems.

In the first competitive struggles between terrestrial broadcasters and cable operators, broadcasters controlled the highest quality contemporary programming and cable operators primarily competed by offering a wider variety of channels and providing premium movie channels. In many locations broadcasters actively sought regulatory policies to keep their channels from appearing on cable in order to reduce its attractiveness as a competitor.

As cable matured and satellite services emerged, the nature of the struggle shifted as greater subscription and advertising revenues allowed cable networks to offer higher quality contemporary programming. In this competitive phase, terrestrial, cable and satellite operators began struggling for exclusivity of content that would drive audiences to the platforms. Gaining exclusive rights to first broadcast runs of motion pictures, sporting, musical and other events, and high quality original programs became primary goals. In this environment, producers of content and owners of event rights sought to maximize their returns across the platforms. while platform operators sought to maximize their returns by gaining market power through exclusivity. This led to negotiations based not only on transmission rights but exclusivity rights as well, which dramatically pushed up costs of some content—especially sports rights.

As cable garnered a larger audience share, broadcasters that had previously been opposed to carriage of terrestrial signals on cable because asking regulators for ‘must carry’ rules to require cable operators to carry terrestrial channels so they could have additional access to audiences or audiences in places their terrestrial signals had not previously reached. This was especially useful for advertising supported channels, both public service and commercial.

In recent years, the widespread success of cable and satellite platforms and the shift of wealth from terrestrial to other platforms has led broadcasters to demand payments from cable and satellite platform operators for carrying their channels. The newer platforms are resistent and in some nations the struggle over payments remains on-going.

The digitalisation of terrestrial, cable, satellite, and broadband platforms has now created multiple opportunities of distribution of audiovisual materials and is creating a new environment in which additional competitive struggles are taking place among platform operators. At stake are the significant potential gains from advanced paid video-on-demand services and IPTV. Platform operators—DTT, cable, satellite, and telecommunications firms that offer broadband services—are now struggling to ensure that they are not competitively disadvantaged compared to other operators. Operators that control or have high market power over platforms, especially broadband links and systems needed for advanced services or interactive DTT services, will have significant advantages in the next generation of services. Consequently, there is a great deal of effort on the part of major platform operators to acquire access to all platforms and services through ownership, alliances and joint ventures and in many cases there are outright efforts to control those platforms and servcies.

The trajectory and outcome of this competitive struggle is particularly important because it will have significant impact on the range of services and costs for services available to the public. These developments also have significant importance for the relationship between content producers and platform operators because the means of compensation is likely to evolve from current transmission rights and exclusivity rights payments to one involving revenue and profit sharing. This has significant implications to the funding and ways that contemporary terrestrial television programming is created and role of terrestrial broadcasters in the new environment.

THE WILD AND WOOLLY WORLD OF CABLE, SATELLITE AND BROADBAND MARKETING

Increasing competition among cable, satellite, and broadband suppliers, combined with slower growth in consumer uptake because the industries have reached maturity, is leading to aggressive marketing efforts to wrestle market share from other companies.

If the leading companies followed classic marketing strategies, they would be offering consumers better arrays of networks and services, better customer service, and/or better prices in efforts to attract more customers.

Instead, many of the largest competitors have been engaging in acts that harm customers and consumers by using illegal and deceptive marketing practices and strategies designed to unwittingly wring greater revenue from their customers. Although the companies apparently think there are benefits in behaving badly, their marketing practices are increasingly getting them into trouble.

Aggressive telemarketing—which has always offended consumers—has landed a number of leading firms in hot water. Comcast and Direct TV have just admitted charges and are paying fines to the Federal Trade Commission for violating telemarketing rules by ignoring the federal do-not-call list. The FTC has also filed a suit against Dish Networks for similar violations.

Companies tend to advertise heavily when competition is high and ads for cable, satellite, and broadband services have helped the revenues of thousands of television stations, newspapers, and magazines across the U.S. Unfortunately, the veracity of advertising claims in cable, satellite, and broadband services has been widely questioned by consumer groups, governments, and other competitors. In recent months Bright House Networks filed a complaint with the Federal Communications Commission about the practices of AT&T, the National Advertising Division of the Council of Better Business Bureau chastised Cablevision for advertising claims after complaints from Verizon, and Verizon itself has been sued for misleading claims by NJ Division of Consumer Affairs.

The industry also sought to market different levels of broadband Internet services to customers and planned to charge different rates for users—a strategy that would allow them to advertise a low price even when many customers would have to pay a higher price based on usage. Plans by Time Warner, Comcast, Frontier Communications and other firms to offer tiered service plans have now been dropped after complaints by customers and legislators.

Cable and satellite firms have traditionally been mavericks and rogues in the media industries and many Internet service firms followed their example. Even though the industries have matured and the number of players has been significantly reduced through mergers and acquisitions, the wild and woolly world they created is still evident in their marketing practices.

We can only hope they will learn to become good corporate citizens—or at least firms concerned about their own reputations.