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Cable Access Gets Slammed, Time Porner Gets the Land

This is a guest post, authored by Jay April. Jay is a strong supporter of local authority and community media. He is a documentary filmmaker, video journalist, and new media innovator who now happens to find himself running a community TV and radio station in Maui, Hawaii.

There is a new land grab in Hawaii whereby the government is giving away valuable public land to private business without getting anything in return for the people. Sound familiar? It has happened before in Hawaii – with agriculture, with beaches, with water and now, with the public airwaves. This time the difference is that the land in question is in the form of public electronic real estate, the electromagnetic spectrum. These are the frequencies you pay for to watch cable TV, use the internet or talk on the phone.

Most people don’t know this, but in exchange for using public rights of way - airwaves, telephone poles, electric wires and underground conduits - cable monopolies like Oceanic Time Warner have to pay “rent” in the form of community access channels like Olelo on Oahu, Akaku on Maui, Na Leo on Big Island and Hoike on Kauai. Now, because of new technology, the frequencies or space these channels occupy have suddenly become extremely profitable to cable companies. (Not unlike how lands once granted to indigenous people by treaty became more valuable once minerals were discovered.) That is why Time Warner wants to take over this public property and move these channels to inferior locations while vastly reducing the amount of non-commercial electronic real estate. That is why, if you are an Oceanic Time Warner Cable subscriber, channels are disappearing from your channel line-up altogether, or re-appearing someplace else. So far, instead of holding your land in public trust, the state is falling for the Time Warner plan - hook, line and sinker.

Maybe that is not such a bad thing after all. Oceanic says this techy move will free up more space on the cable for them to bring us all kinds of goodies like High Definition (HD) channels, video on demand channels, enhanced services and the holy grail of faster, better and more affordable internet for all. That’s a good thing, right? We all want to believe. We really do. The thing Time Warner forgot to mention was…well…the several new adult services that have recently appeared as a result of moving your access channels to cable no man’s land.

Akaku Maui Community Television

On Wednesday, April 4, the naked truth behind this land grab was revealed at the State of Hawaii Cable Advisory Committee hearing in Oahu. The members, made up of appointees from each county, did not like what they saw. Let’s just call it, Oceanic Time Warner’s dirty little secret.

The meeting started out innocently enough. Director of the Department of Commerce and Consumer Affairs (DCCA) Keali’i Lopez, announced that she was inclined to grant a “waiver” Oceanic Time Warner had requested, to strike the definition of the word “channel” from contracts that govern cable operations on neighbor islands. This little change would allow the cable company to legitimize “after the fact” a contract violation it had already committed months ago, when it moved educational access channels from their current analog location (55 and 56) to an area on the cable dial, commonly referred to as “digital Siberia” (355 and 356)

This action allowed Time Warner to reclaim twelve megahertz (12MHz) of dedicated non-commercial spectrum for unrestricted commercial development. Former two-digit, full service, publicly owned, analog channels disappeared and were replaced by three-digit “digital channels” in hard to find locations. Replacement digital channels represent a tiny fraction - perhaps 10% or less - of their former electronic land value and are viewable only by subscribers who obtain special equipment.

In defense of DCCA Director Lopez, her motivations were perhaps well meaning, even altruistic. Who doesn’t want faster, better, affordable internet? Time Warner broadband speeds on neighbor islands are truly pa-thet-ic. Last time we checked on Maui, they were about 5 megabits down and less than 1 megabit up. Public testimony at the CAC hearing revealed, however, that even though a huge amount of dedicated public spectrum was taken away in December and in January, cable subscribers on Maui, Molokai, Lanai, Big Island and Kauai did not get faster, better, more affordable internet. What they got was a rate hike, a slew of expensive digital channels, and a big fat bunch of additional adult services like Playboy Interactive, Playboy TV on Demand, Penthouse on Demand, Hustler on Demand and Manhandler on Demand.

Time Warner Cable Logo

Putting the Porn Warner switcheroo aside, it was also revealed during public testimony that DCCA has no guarantee or quid pro quo from Time Warner to ensure that any of us will ever get faster, ubiquitous, more affordable broadband. On the contrary, Wall Street analysts at Sanford Bernstein are reporting that Time Warner has recently announced that they will be applying overcharging schemes to broadband customers, charging all customers usage fees to boost revenues and profits. The street predicts that these charges will become the rule and not the exception in the near future.

After these and many other unsavory facts were revealed, several CAC members questioned the character of Oceanic Time Warner, a company that protects all local broadcast channels on analog and repeats them over again on digital; protects Oceanic owned channels such as OC 16 and dozens of non-local channels like QVC, MTV and Shop NBC by keeping them on analog - yet finds it necessary to kick your local Community Access Channels off these more profitable and desirable locations in order to steal the public’s bandwidth.

No one disputes that someday all channels will be digital. How that transition occurs and what happens to public electronic real estate in the process is an important discussion to have with cable subscribers and cable access providers on each island. Before the state gives it all away, we have a right to say how our land will be used.

To its credit, for the time being, the Cable Advisory Committee has taken a stand against the DCCA waiver of the definition of channel pending further review. It remains to be seen which is more obscene – the Time Warner lie itself or the state’s willingness to
believe it at the expense of neighbor island Public Access channels and Community Broadband development.

Louisiana Leg uses Porn Excuse to Target LUS Community Network

We occasionally see big cable and phone companies getting creative in their efforts to shut down community networks. In socially conservative communities, restrictions on providing adult content is a common approach.

This technique came up several times in North Carolina, where TWC-sponsored elected officials proposed disallowing public providers from offering the same adult content channels that private providers offer. The reason has nothing to do with morals, but rather with the substantial revenue adult content generates. Incumbent providers know that if community networks cannot offer adult content to those who wish to purchase it, they will be deprived a significant source of revenue needed to pay the debt from building a modern network.

Bear in mind that no one is forced to see this content or even a scrambled channel (as was common in the "old" days). Community networks allow each family to decide for themselves what content is appropriate -- to the extent community networks differ from private providers in this regard, they provide more tools to filter out content that some may find inappropriate.

Last week, the Louisiana House briefly considered a bill to limit Lafayette's authority to make adult content available to subscribers that request it. House Bill 142 exists solely to put LUS Fiber, an impressive muni FTTH network, at a disadvantage.

John at Lafayette Pro Fiber has excellent coverage of the situation, with both an initial post featuring eyes-a-rollin' as well as an in depth followup "Lafayette delegation kills anti-LUS bill."

LUS Fiber Logo

The latter is essential reading for those new to understanding how any legislature works. And anyone building a network that will compete with big companies like AT&T, Cox, Time Warner Cable, et al. had better know how legislatures work because those companies live in the Leg. Their competitive advantage lies in lobbyists, not providing superior telecom services.

Apparently, the Legislators pushing this bill (on behalf of Cox - there is no other rational explanation) first claimed it was about banning the use of state credit cards from buying adult content (or services) when officials were traveling… but John notes that is already prohibited.

Legislators defending Lafayette (and all the citizens of Louisiana who have suffered enough at the hands of AT&T and Cox) sought a compromise that would have ensured a "level playing field" for adult content by applying the law to all providers equally. This killed the bill. But John wonders if there was something more at play:

Extra Credit: Decide whether the real point of this exercise was purely PR — was it never intended to pass, only to try and lay on LUS (again--this ploy fizzled badly during the fiber fight) the onus of selling "porn?" Or was the hope to impose another long, embarrassing and distracting lawsuit on Lafayette? (This worked pretty well during the fiber fight.)

Community networks and defenders, be prepared for similar fights at a legislature near you.

Time Warner Cable Bill his Senate Floor, Chaos Ensues

As Time Warner Cable's bill to limit competition from community networks nearly finished its exciting journey through the North Carolina Legislature, it found itself in a madhouse where the sponsor of TWC's bill (Senator Apodaca) accused another Senator of allowing his children to watch adult content.

Stop the Cap! wrote up the details, including a discussion of why Senator Apodaca's amendment to deny adult programming to publicly owned networks violates federal law. This is yet another "level playing field" requirement that handicaps publicly owned networks but does not touch Time Warner Cable -- no surprise given TWC's influence with the current group of Legislators in Raleigh.

One of the most frustrating aspects of this ongoing saga is that it does nothing to help people and businesses get the access to the Internet they need for economic development, better health care and education outcomes, and more. This absurd debate is just about how fast North Carolina can walk backwards. Time Warner Cable and CenturyLink want Time Warner Cable to sprint backwards to protect the monopoly revenues. We are working with North Carolina's communities to stop it from moving backward at all. But nothing in here is helping communities to move forward and be competitive in the digital economy.

There is still time to oppose this bill - contact information here at Stop the Cap!.

Once again, we have some audio clips from the Legislature below.

Adult Content on Community Networks

Fibrant has decided to offer premium adult content to subscribers that choose to receive it. Salisbury's approach and response offer a window into the benefits and responsibilities inherent in building a triple-play network that offers services directly.

As a gesture to those who are publicly opposed to such content being available, the channel listings do not show up to the subscriber by default -- which is to say that you cannot even see the scrambled channel unless you take action to tell Fibrant you would like the option of purchasing adult content.

The reason for offering the adult content? Much like the reason most community networks get involved in television at all: it helps pay the bills. The margins on premium content are high and competitors also offer these options locally.

However, a number of people are morally opposed to such content -- this has been a particularly sensitive issue in both Utah and the South more generally. Opponents to community networks generally take this opportunity to rally some opposition to the network in general.

Years ago, we wrote about a similar situation in Burlington, Vermont, because they carried the Al-Jazeera English international news channel.

The lesson we draw from these situations is that running a community fiber network is not all about creating economic development and educational opportunities. There are many issues that may be confronted, and some are messy First Amendment discussions. When a community takes responsibility for its future, it really has to take responsibility for its decisions.

When Comcast or Time Warner Cable chooses the channels, these problems may lurk under the radar because no one expects TWC or Comcast to take community needs or desires into account when they choose their channel lineup.

But when the network is owned locally and accountable to the public, the public has a voice in the decisions governing the network. Controversy on adult content on television may well subside over time, as few are actually proposing to censor the same content delivered via words, photos, and video over the Internet. The Salisbury Post editorialized a similar point:

While there’s no perfect choice here, there is this reality: Even if Fibrant declined to offer these channels, it would still be a conduit for pornography, just like any other Internet provider. The online world is awash in porn, with literally hundreds of millions of websites available. Rather than suggest Fibrant should assume the role of blocking access to such sites — an intervention that would rightfully provoke civil-liberties outrage — subscribers fully expect to decide for themselves what online sites they will patronize or shun. The same should hold true for their TV viewing options.

On the flip side, an opponent of carrying adult content on Fibrant's TV services noted that the community makes the rules for itself and they can simply decide that adult content is inappropriate in their community.

One philosophical problem with this approach is that the U.S. has a strong tradition, embodied in the Bill of Rights, of protecting speech -- and that included everything from dollars to videos nowadays. Nevertheless, the reason is sound: to protect the minority from the majority.

Communities could just as easily choose to ban all violent content… or content that does not directly represent certain religious views. Liberal communities may ban Fox News, and Boston could ban MLB for showing the Yankees winning the penant.

Rather than banning some content, it seems that the best approach has been broadly allowing content and letting individuals making those choices of what to view themselves. Nonetheless, we do believe these are important conversations in which communities should engage.

Communities that are considering building networks and offering services directly should figure out what television carriage policy they will use. Who will ultimately make the decisions? Staff? A citizen committee? A city council that allows day-to-day politics to influence decisions? An appointed board that is somewhat removed from the pressures of politics?