The House Subcommittee on Telecommunications and the Internet will hold a hearing tomorrow on H.R. 5353, the Internet Freedom Preservation Act of 2008, also known as the Markey-Pickering net neutrality bill. In looking over the written testimony of the witnesses (not yet posted online), the most intriguing is the written statement of RIAA CEO Mitch Bainwol (PDF.)
First, the RIAA seems to be wavering in its traditional opposition to network neutrality regulations. Even though the record industry still doesn't like net neutrality regulations, Bainwol seemed to leave open the idea that if ISPs won't do something about music piracy, the RIAA might switch sides.
We continue to believe, at least right now, [italics added] that a marketplace solution with the ISPs to the piracy problem is viable, and certainly such a solution could be devised and implemented far more quickly than a regulatory proceeding. As the numbers tell you, however, the state of our industry requires action. If we cannot resolve this problem quickly in the private sector, regulation may be a necessary alternative.
The record companies seemed to have rallied around the legislation because it makes a distinction between "lawful" and "unlawful" content, thereby forcing ISPs to focus on the issue of piracy. Not that the RIAA hasn't been busy trying to get broadband service providers to otherwise pay attention.
Bainwol says that negotiations with ISPs have been underway for months, with varying degrees of success.
RIAA and our member companies have been engaged in constructive discussions with a number of ISPs about ways to address the piracy problem, including mechanisms like graduated response policies, longer-range technological approaches, and business solutions through negotiations between individual music companies and ISPs that can capture the value of the music being consumed by subscribers.
These discussions aren't always as fruitful as the RIAA would like, a fact that might be the motivation behind the record industry's seeming, subtle shift on network neutrality.
At the same time, however, we note that too many ISPs have turned a blind eye to online theft, all the while benefiting from the many subscribers who pay for broadband access primarily to steal music and other content. These ISPs would just as soon pretend that congestion was not fundamentally a problem directly connected to theft. And some prefer to cure congestion with greater efficiency – solving their problem but compounding ours.
What seems to particularly irk the RIAA is that network management practices, such as P2P throttling by Comcast, seem solely aimed at video content, with the implication that cable operators are less concerned by pirated music because web-based video -- but not web-based audio -- is a competitive threat.
At the same time, however, actions taken by the ISPs to deter piracy should be applied evenly over all types of pirated content to the extent technologically feasible. Just as ISPs should not unfairly discriminate against lawful traffic for anticompetitive purposes, ISPs should not be able to target only certain forms of piracy that may compete with their legitimate content offerings and not other forms of piracy.
Other written testimony from tomorrow's hearing seems par for the course. Aside from Bainwol, the witnesses include:
Ben Scott, policy director, Free Press (PDF)
Scott Savitz, CEO and founder, Shoebuy.com (DOC)
Steve Peterman, executive producer, Hannah Montana, representing Writers Guild of America, West (DOC)
Kyle McSlarrow, president and CEO, National Cable and Telecommunications Association (PDF)
Michele Combs, vice president for communications, Christian Coalition of America (PDF)
Walter McCormick, president and CEO, US Telecom Association (DOC)
Christopher Yoo, Professor of Law and Communication, University of Pennsylvania (DOC)
(Update: Reaction from Verizon Wireless at end of post.)
On Friday, Google urged the FCC to block Verizon Wireless' $4.7 bil. successful bid for the C Block band of spectrum in the recently completed 700 MHz auction unless Verizon is forced to agree that open access rules apply to handsets it provides its own customers. Specifically, Google claims that Verizon Wireless has no intention of abiding by the open access rules governing the C block spectrum for devices it gives to its own customers and that the FCC should condition Verizon's grant upon a clear commitment that Verizon will not exclude these handsets from the requirement.
In a petition filed at the Commission (PDF) -- technically a petition to deny Verizon Wireless' winning bid for the spectrum -- Google said
Verizon has taken the public position that it may exclude its handsets from the open access condition. Verizon believes it may force customers who want to access the open platform using a device not purchased from Verizon to go through “Door No. 1,” while allowing customers who obtain their device from Verizon access through “Door No. 2.” As Google previously made clear, Verizon’s position would completely reverse the meaning of the rule such that the open access condition would apply to none of Verizon’s customers, and thereby render the condition a nullity. Because this “two-door” position espoused by Verizon is contrary to the plain meaning of the rule, as well as the Commission’s public interest findings and policy objectives set forth in the 700 MHz Second R&O, it must be rejected.
Google all but accuses Verizon of planning to ignore the portion of the C Block open access requirements that say that C Block licensees "may not disable features on handsets it provides to customers." Google says that Verizon has never strayed from its initial position that open access requirements do not apply to handsets that it gives its own customers.
Indeed, when the FCC announced the open access requirements, Verizon asked the the U.S. Court of Appeals for the D.C. Circuit to find those conditions unlawful and only withdrew its appeal after that court denied Verizon's request for an expedited review and after the wireless industry's trade association, CTIA, filed a similar appeal, Google says.
Instead of interpreting the rule to mean "Any Applications, Any Devices," Verizon thinks it means "Any Applications, Except on Verizon Devices," Google claims. To make sure Verizon upholds the open access conditions, Google asks the FCC to adopt a condition that
affirmatively rejects Verizon’s stated position regarding its open access obligations, and requires Verizon to affirmatively acknowledge, and agree to comply with, the Any Apps, Any Devices obligation as a condition to the grant of the licenses.
Google was the main proponent of the open access rules and was a bidder for the C block spectrum.
Update: I heard from a Verizon Wireless spokesperson regarding this petition and here's the company's reaction: "Google's filing has no legal standing."
Posted by Cynthia Brumfield at 9:07 AM | Print | Comments (4)
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