The court in AT&T-Time Warner produces a rule that is overall positive for Caribbean media consumers

Tom Wheeler, former chairman of the Federal Communications Commission, told C-SPAN’s Peter Slen on last Monday’s segment of The Communicators that the absence of open internet rules tells content providing internet service providers that they can discriminate and favor their own content.  Mr Wheeler also opined that on 11 June 2018, major local monopolies will be told that it is fair to discriminate. Over time we will see internet services discriminate in a way that benefits their bottom line. Mr Wheeler believed that an AT&T-Time Warner tie-up would present consumers that type of anti-competitive dilemma.

The United States District Court for the District of Columbia disagreed with the former Commission chairman, issuing an opinion yesterday in United States of America v. AT&T, Inc., that says that AT&T Inc.’s acquisition of the media giant did not violate anti-trust law.  Vertical mergers rarely get denied by the courts. Given that AT&T and Time Warner do not play in each other’s space, in my opinion, finding the acquisition to be harmful to consumers would have been a bit much. What I always find fascinating is the expression of entitlement by consumers of media services; as if media consumption and the digital means by which content is consumed is a right.

Take for example the reaction to the merger by a leading member of the Fake Left, Senator Ed Markey, Democrat of Massachusetts:

“This ruling is an assault on consumers, choice, and innovation,” said Senator Markey.  “The telecommunications market needs more competition, not more consolidation. We need a telecommunications market where pay-TV gatekeepers don’t favor their own content providers, but allow minority, diverse, and independent programmers to reach Americans’ screens. I fear this decision will only further fuel merger mania in the telecommunications and other markets.” 

“Today’s decision underscores the need to restore robust net neutrality rules, so broadband providers like AT&T cannot use their gatekeeper role to harm competing services and content. Without net neutrality protections in place, AT&T will be free to block, slowdown, or charge fees to competitors like Netflix and Hulu to favor their own DirecTV Now streaming service and HBO content. Speaker Ryan should schedule an immediate vote on my CRA resolution to restore the FCC’s net neutrality rules.”

Both Mr Wheeler and Mr Markey come around and paint yesterday’s court ruling with the net neutrality brush while at the same time, unwittingly, making the court’s argument: that there should be a showing that this vertical merger would substantially erode competition. Bear in mind that United States of America v. AT&T, Inc. has nothing to do with net neutrality per se, but Mr Wheeler and Mr Markey have opened the conflation door by arguing that application of Title II-based net neutrality rules would mitigate AT&T’s gatekeeper role. This is speculation and fades further when you compare their speculation with the court’s description of how the industry works.

While I found the first 30 or so pages of the opinion to read like a script proposal for a Netflix docu-drama, the court’s description of how the video distribution industry works makes Mr Wheeler and Mr Markey’s assessments sound like paranoia. AT&T has no incentive to hoard content. On the contrary, part of the company’s reason for acquiring Time Warner is to create another stream of revenue: advertising fees. As more consumers cut or shave the cord at home and go mobile, AT&T’s lost subscriber fees must be recovered from other sources. AT&T decided to chase advertisement revenue. Time Warner’s content is traction for advertisement revenue. It is more efficient to get this new content on to as many distributor platforms as possible in order to maximize revenues. This means licensing content to a Netflix or Hulu or even using Time Warner’s production capacity to create content for these other platforms. Blocking or slowing down access to Netflix or Hulu would make no sense because AT&T would risk degrading the value of the content it provides to these platforms as a result of licensing or sales agreements.

Would Title II-based net neutrality rules increase competition in the production and delivery of content? No. Netflix and Hulu were spawned in a light touch, Title II free regulatory zone. They didn’t need permission to create the applications necessary for accessing content. They didn’t need permission to place those applications on the internet. The demand for content comes from consumers and the data on consumer tastes allows Netflix and Hulu to create even better more engaging content. A socialist-style, government approach to dictating how consumers access content and transmit their preferences about content is not what the consumer needs.

This is why the decision in United States of America v. AT&T, Inc., costs me nothing. I am not being compelled to buy content I don’t need because the light touch environment that went back into effect on Monday means that over the top platforms like Hulu and Netflix and the new AT&T will provide me with even more enticing offers to view the edgier content I suspect that will be spawned from competition. Consumers have put content providers and distribution platforms on notice that they can choose providers and distributors at the swipe of a smart phone screen and by allowing vertical mergers and the convergence it spawns, those screens will carry more interesting and diverse content.

Opt-in, Opt-out policy appropriate for addressing online privacy

In May 2017, U.S. Representative Marsha Blackburn introduced H.R.2520, the Browser Act, a bill designed to provide consumers with some control over the use of their personal information. Specifically, consumers that use broadband access services or websites or applications providing subscription, purchase, account, or search engine services are provided, depending on the sensitivity of personal information, the choice to opt-in or opt-out of policies used by these services to manage consumer information.

For sensitive information, opt-in approval must be expressly granted by the consumer. Sensitive information includes:

  • financial information;
  • health information;
  • information about children under the age of thirteen;
  • social security numbers information;
  • information regarding a consumer’s geo-location;
  • web browsing information: or
  • information on the history of usage of software programs or mobile applications.

Consumers must be provided the opportunity to give opt-out approval for non-sensitive information.

Mrs Blackburn’s intent with the legislation is to equalize broadband access providers and edge content providers under the eyes of the Federal Trade Commission, the federal agency responsible for consumer protection and anti-trust law enforcement. In my opinion, this is not a far off from former Federal Communications Commission chairman Tom Wheeler’s goal of openness and transparency throughout the entire internet ecosystem; from consumer to broadband access provider to websites provided by edge providers.

What Mrs Blackburn’s bill also does is address information asymmetries, where edge content providers are viewed as having more knowledge on the value of consumer information that they extract from websites than the consumer does herself. The consumer cannot answer the question, “Is the value of the information I receive from online, x, greater than the value of the information that I give up, p, where that information is private?

It is not readily apparent whether H.R.2520 was also designed to save the consumer from asking this question: ” Why should I pay for an economic good i.e. privacy that isn’t Google’s to sell in the first place?”

Professor Caleb S. Fuller of Grove City College describes privacy as an economic good, something that the consumer wants more of. Most consumers are not willing to pay to protect this good, even though they know that firms like Google are collecting this information for free. For example, according to Professor Fuller’s research, 90% of Google’s users know that their “mouse droppings” are being tracked.While 29% of Google’s users don’t mind being tracked, 71% do. Their reasoning, according to Professor Fuller includes the fear of price discrimination based on their information; the receipt of spam advertising; the risk of identity theft; and the “dis-utility in just not knowing who knows what.”

One equitable solution, in my opinion, would be for Google and other edge providers to pay their subscribers to provide private data. Google could provide an offering schedule based on the sensitivity of the information it wishes to purchase. Consumers would have to consider the value of the privacy they give up in exchange for the value obtained from accessing web content. I wouldn’t expect every consumer to sell their data. Google will wisely set limits on its offers and a significant portion of consumers unable to get a price they want will settle for the old private data for access exchange that they have been conducting for two decades.

The opt-in, opt-out policy mitigates the work that the consumer should put in to determine the value of her data, but gives her the final say over how her private data can be used. Unfortunately this is also the down side where the market won’t be used to truly determine the real value that can be sold.

The President’s 5G public works project

It is election year and President Trump is signaling that he is well aware that priming the economic pump to quench America’s thirst for growth in the economy may buy him some political capital while helping his fellow Republicans in the Congress and maybe a few Republican governors and state house members retain their seats. Today’s latest political proposal: construction of a nation-wide 5G communications network by the federal government.

Reuters reported earlier today that among the Trump administration’s initiatives to address potential Chinese hacks of America’s communications systems is the construction of a 5G network by the U.S. government. According to the report, the idea is still being considered among lower ranking staff within the Administration and proposals may not get to the President for another six to eight months.

Federal Communications Commission chairman Ajit Pai was quick to respond this morning to the 5G proposal. Mr Pai argued in his brief statement that construction of this latest generation of high-speed communications network was best left to the market. Rather than going down a costly and eventually unproductive path, the chairman recommended that federal policy stay the course and focus on getting more spectrum, that portion of electromagnetic waves necessary for making calls and moving mobile data, into the commercial space.

Again, Mr Pai demonstrated that he is one Republican that attempts to be practical.

Progressives haven’t come out one way or the other …. yet. Progressives have thrown support in the past behind the idea that initiatives on the part of municipalities to build their own broadband networks, premised on the need for access to affordable broadband in the face of a lack of supply by large carriers such as AT&T and Comcast. On first blush, Mr Trump’s idea seems to be nothing but municipal broadband on steroids, just on a national level.

I doubt, however, that advocacy groups like Public Knowledge or Free Press are going to jump on the opportunity to provide Mr Trump with any favorable optics on this issue. The last thing progressives want to risk is giving the Administration any type of lifeline that would help pull Mr Trump’s popularity into the respectable zone.

Mr Trump could have used the opportunity to make a political play based on economic stimulus a nation-wide project like this could provide. He could have sold it like his version of the Hoover dam, especially in rural or mountainous areas where broadband companies have dared not tread because of sparser populations and rough topography. The Deplorables in flyover states and the Forgotten that inhabit the insular territories of the Caribbean and the Pacific would have warmed up to Mr Trump’s goody bag of 5G services by 2021,especially if the idea is sold as another job creator.

Mr Trump will have to sell broadband access providers on the idea of falling on their swords and taking one in the national interest. According to NCTA, broadband providers have invested $1.4 trillion in constructing and deployong broadband networks. The cable industry alone claims to have made a $275 billion investment in broadband infrastructure.  They are not about to tell investors that future returns on this investment are about to be pushed aside by a public works communications project designed to keep China from eavesdropping on two ex-college room mates talking recipes for peach cobbler and the latest #MeToo campaign.

State regulators probably can’t wait for the return of net neutrality rules

Sovereign individuals are seeking refuge in cyberspace. Minimizing state intervention in the goings on in cyberspace should be a legal priority for those that want to engage and prosper in a decentralized internet. Imposing old telephone rules on broadband access providers under the guise of ensuring the democratization of the internet will have the opposite effect. The rules won’t create more freedom. It will squelch it.

What net neutrality rule proponents take for granted is the actual logistics of Title II regulation and the slippery slope that will emerge from old style telephone regulation of the prime conduit to the digital economy.

First, let’s look at regulation of the access piece from consumer to their internet service provider. Consumers will want this connectivity regulated, especially consumers that use cable modem services for their access. State regulators, who have long abdicated their participation in regulating access services, will find themselves struggling to get back into the oversight game. One argument for validating participation in regulation will be the regulators expert status as a protector of consumer interests. Most consumers know nothing about networks and will need the guiding hand of state commissions on issues of network management and transparency.

I will not be surprised if state commissions start requiring some type of price schedule that is made available for public viewing. Also, state commissions will find reasons for opening investigations into how network management may be impacting pricing. Lawyers and external affairs specialists will be in great demand.

The Federal Communications Commission and state public service commissions will take a more active role in rate design. In jurisdictions where they were abandoned, tiered rates be reintroduced. To make up for the dearth of broadband deployment in rural areas, states will now see an opportunity to authorize higher rates per broadband access line in urban areas in order to keep rates lower in rural areas. As more Americans move to urban centers, they will have to contend not only with higher housing prices but higher communications prices as well.

And I don’t see why wireless communications being spared the onslaught either. Dumping your landline may not be enough to escape increases in mobile phone rates designed not only to fund additional broadband deployment but to maintain universal service access to wire-line services by low income folks.

America was moving in the right direction by innovating access to the internet and in turn getting rid of a layer of onerous communications regulation in then form of state regulators. Net neutrality invites them back in.

 

My simple take on what a city is

People move to Atlanta for various reasons. An individual may be a recent college graduate that received their first job offer from a company located here. Others are moving here to start a new business or expand an existing one. Some are leaving a traumatic experience that occurred in another city, like death in the family or divorce hoping that Atlanta provides a platform for a new life. Others simply like the weather and the city’s southern charm.

Whatever the reason, I think continued success here needs to be based on a couple realities about cities in general and Atlanta is particular. While we tend to look at a city from a perspective of what can this city do for me, we should round out our perspectives by asking what does this city expect from me? What is its role? To whom do the benefits of a city truly flow?

I admit that my connection to Atlanta is far from emotional. The city doesn’t feed an emotional need for me. While I would not want to live in a town with one traffic light and no movie theater, I don’t rely on a place for happiness.

What I appreciate and do need from a city is its ability to function as a hub for trade. A city should foster an environment that drives thought. It should have the infrastructure that provides an adequate platform for the exchange of ideas. It should, as a community or society, provide a safe environment for exchanging information. Since people are the primary source of information, people should feel safe and secure moving about and engaging with each other.

City governments promote themselves as suppliers of protection and infrastructure for its city’s residents. City governments exercise a near monopoly over protection services, organizing and regulating violence in order to meet their marketing message. I won’t get in to how individuals can and should compete with government to provide these services for themselves, but for now bear in mind that individuals can, but government does its best to dissuade the individual from doing so.

To stay viable as a service provider to taxpayers, city governments are expected to create public policy that supports the city’s function as a trading post in the digital age. For example, reviewing and approving broadband provider requests to use public rights-of-way to lay cable or construct and deploy cell towers in an expedited fashion provides information entrepreneurs increased assurance that they can conduct commerce in the city. It also provides broadband providers assurance that they can maintain returns on their capital while meeting their customers needs.

The city’s other function is that of a tax collector for its investors i.e. bond holders, members and employees of government, income-transfer beneficiaries. It aims to turn every resident into a tax-generating event, whether through the payment of sales taxes, property taxes, or business licenses. By providing infrastructure i.e. cell towers, streets, airports, the city contributes to the increase in the number of information seekers and information providers that trade in its jurisdiction, leading to an increase in entities that pay taxes and the amount of taxes collected.

How does knowing this contribute to your success in Atlanta or any other city? You can best guess the value you are bringing to Atlanta’s table when you understand what is being traded in the city, the information that is being demanded. You can best structure your labor or entrepreneurial activities to meet those trading needs. You become an asset.

Unfortunately, the State will wish to extract a significant portion of your success via income taxes. We’ll save that for another discussion.