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Archive for August, 2010|Monthly archive page

We Can’t Afford To Be Neutral on Net Neutrality

In Competition, Do-Not-Deliver, Do-Not-Mail, FCC, FTC & DOJ, Network Neutrality, Uncategorized on August 12, 2010 at 11:55 am

From my column in the upcoming edition of INK, the national trade journal of the Association of Free Community Papers:

The Google-Verizon “internet pact” — or “joint policy announcement” on “guiding principles” or self-serving internet carve-up or whatever it’s being called by the time this article goes to press — is a fundamental game changer. The good news is that the canaries have finally escaped from the mines and they’re flapping in the light of day. The exposure and reclarifications of private negotiations and agreements between two giants on the provider and search-video-advertising sides of the internet, put a fresh public face on all the back-room deal-making and denials of the substance of same. Their joint, “this is not a business arrangement” plan for a new parallel, pay-to-play fast-lane internet, with corresponding application blocking, content discrimination and toll booths for mobile broadband, has finally focused policy and jurisdiction where it needs to be.

The Google-Verizon scheme may change endgame in a way that Comcast’s actions — blocking lawful data, denial of blocking, subsequent admission of and reprimand for same, and then major court victory to do it again anytime without consequence — should have already transformed the policy debate on the uncertain future of the internet.

I’ve been preaching about preserving an Open Internet for several years now. During that time, the structural need for clear and fair rules on the information superhighway had smoldered on the back burners of regulators and Congress. Most discussion and analysis had been limited to passionate geeks, much of it buried in tech mags and blogs. All the while, our industry was legitimately more concerned with the pressing need to embrace immediate digital realities and seize opportunities to monetize our online offerings. In a presentation a couple years back on defending threats to distribution — including rack theft and fees, local litter laws and do-not-mail — I detailed the need to begin fighting against new toll booths that providers were quietly preparing to place on data over broadband. It has long been clear that if the major cable-telcos had their way, they would operate much like Dominion and DistribuTech do with print, in their practice of monopolizing high traffic locations and then extorting those using the demand distribution model.

Similar analogies could be made to local delivery laws favoring certain publications over others, or the USPS jacking rates disproportionately on Saturation or relegating our class to a new 14-day delivery window. Major difference here is options: With our print products, each scenario could be fought separately through numerous channels. Outcomes could be challenged and even failing that, each model of distribution still serves as a next-best fallback option. But in the digital world, a handful of companies control the pipes and 97% of our readers get their broadband at home — if they get it — from either a monopoly or duopoly provider. Putting that back in Dominion and DistribuTech context, applied to internet there’s no 2nd Option so we’d basically be held hostage.

Until the landmark Comcast decision in April, most ISPs kept any blocking and traffic tampering limited and discreet enough to keep public attention away. Collectively, the handful of major cable-telcos abided by the concept of Open, Nondiscriminatory Networks and the notion that the Federal Communications Commission had at least marginal authority to serve as cop on that beat. That tenuous power to enforce was actually a matter of faith written in Crayon when the FCC enacted rules between 2002 and 2005 that classified broadband as a magically bundled, fluffy information service. Abandoning sight of the critical communications component — the end to end transmission of digital data — shifted the FCC’s regulatory authorities onto quicksand. And it simultaneously put thousands of independent ISPs on the short end of the competitive stick and ultimately out of business.

The anything-but-Comcastic court ruling was bound to happen at some point. The Commission had finally begun a formal, public process to preserve an Open, Nondiscriminatory Internet when the legitimate authority they gave away mid-decade led to crushing defeat in the D.C. Circuit. To get out of the quicksand and onto solid ground, the FCC recently began seeking public input on ways to reclassify the transmission of data component of broadband as a communications service, among ways that it could legitimately regain authority to preserve the principles of Network Neutrality. It is important to note that the Communications Act gives the Commission this Rulemaking authority and the Courts have upheld the preeminence of expert agencies generally. And on the critical issue of end to end transmission of digital data, Supreme Court Justice Scalia has already opined that the Commission could separate the delivery from the pizza.

We have been actively participating in the public sausage-making at the FCC, filing comments and educating senior advisors on the competitive threats we’ll face on a web of arbitrary, capricious and pay-to-play fast and slow lanes. As the major ISPs have gone to Congress seeking to block and otherwise stall the transparent process at the FCC, we’ve made our case on the Hill, stopping procedural games like attempts at agency defunding. Through our collaboration in broader coalitions, we were represented on the seat speaking for small businesses and consumers at private stakeholder meetings. The Google-Verizon private deal-making put the final straw on top of mounting frustration over broader, but still limited private deal-making, leading the FCC to scrap private talks and get back in earnest to the open, public process well underway.

Meanwhile, the substance of the Google-Verizon scheme has helped immensely in cutting through the smoke screens crafted by the cable-telco lobby on the Hill, as well as poke major holes in their aggressive public relations campaign. The next couple of months will be critical in the fight for fair competition through an enforceable framework that preserves the openness and freedom of the internet. While most activity will take place in D.C., publishers can still help in a few productive ways. Editorials explaining what’s at stake and debunking common myths would be great, and if a public hearing or Commissioner-attended forum comes to a town near you, promoting and attending would be most helpful. Efforts will continue to be made by major ISPs to try to get Congress to stall the FCC, and here publishers could let their members know that the Commission should instead be encouraged to move their open, public proceeding towards a timely, favorable conclusion.

The New Wave of Political Advertising

In Legal Advertising, Political Advertising, Uncategorized on August 12, 2010 at 11:39 am

From the upcoming edition of the Mid-Atlantic Community Papers Association bulletin, The Messenger:

My column is usually dedicated to taking one of the many government related battles we’re involved in, dissecting it under a microscope and then taxing your patience with all the nitty gritty. But this time around, I’ll give a twitter-sized summary on the happenings in government relations and move on to opportunities on the brand new political advertising landscape.

This year has been the most challenging ever. From Annapolis to Harrisburg, to Columbus and Washington, D.C., we’ve been pushing the free community paper policy agenda. We defeated a new tax on advertising and are fighting same at overreaching interpretations of old law on printing. We passed legals through the House and are pushing them in the Court. And we continue to put our recipes for fair competition in the Federal Sausage being ground in multiple proceedings seeking to “Save News,” to stop new traffic tampering toll booths on an Open Internet, as well as stop Cross-Media Monopolies in our hometown markets.

Ok, that was a couple tweets worth but still not the customary flogging. Now onto what changed to make this a new day in political advertising, and setting arguments over good or bad for Democracy aside, how this could be great for your bottom line heading into fall. Earlier this year, the U.S. Supreme Court handed down a monumental Ruling on political advertising in Citizens United vs. FEC. In a nutshell, SCOTUS essentially ruled that corporations are citizens, money is speech, and therefore limiting their spending on advertising to influence elections and issues is a violation of their Rights under the First Amendment.

Citizens United is a fundamental game changer. Corporations (including incorporated trade and consumer associations) and Unions can now use general treasury funds to pay for advertisements expressly advocating the election or defeat of clearly identified candidates for federal office anywhere at anytime (like: Vote for Bob Smith for US REP), as well as referring to clearly-identified elected officials for legislative purposes (for example: Call Senator Jones and ask him to vote against the Senate’s Cap and Trade bill). The ruling did not tackle the issue of campaign financing, so the playing field with all the bright new lights is advertising with we the media. And while Congress has moved to Legislate new restrictions, it’s unlikely anything more than a couple sandbags in the flood will pass the Senate.

While federal Candidates, themselves, tend to stick to cookie-cutter Radio and TV spots and politically entrenched direct mail shops, the folks that just got the green light to spend large are more likely to operate like the businesses they are. Display advertising could be very attractive, especially where it maps well over districts, and these folks should actually listen to the compelling case for inserts over direct mail pieces. Based on all manner of sources, unprecedented amounts of money is being raised, to be spent by these Business Groups, their counterparts in Unions, and established as well as continuously sprouting Front Groups from Left and Right — to educate Voters this November on the Candidates’ positions on their pet policy issues.

Our readers are in traditional Battleground States where several federal races, both state-wide Senate and district-level House seats, are paramount to special interest agendas. Many of these are anticipated to be very competitive, critical to the margins in the Congressional Balance of Power, translating correspondingly into probable life or death of these organizations high-stakes issues. Some political advertisers might just end up finding you on their own — there are examples from primaries across the country where prominent local businesses have taken out full pages backing Congressional candidates.

But there is actual research, planning and coordination we can all start doing now, assuming there’s interest. For my part, I already monitor a range of national players now for policy stances that could impact our industry, and will be watching for the races these groups plan to target with an eye towards Mid-Atlantic opportunities. At your own papers, you might check out this fantastic resource if you’re interested in proactively selling advertising for US House races: Center for Responsive Politics’ OpenSecrets.org — click top left button, “Politicians & Elections” and scroll down to “Congressional Elections.” From there, it’s a snap to find every contest by district and each has top corporate and union donors revealed by clicking the “Contributors” tab. After your jaw drops, the list you’re looking at are your prime targets, those with serious coin in the game now — and this is their first chance to openly exercise their First Amendment Rights with political advertising in your publication.

As always, please feel free to contact me anytime about this or any other issues or concerns.