Policy Blog Entries by Gigi Sohn

Late yesterday afternoon, Sirius and XM filed a letter with the FCC that lays out the “voluntary commitments” the companies will abide by in exchange for the FCC approving their merger. As I predicted yesterday, the commitment to provide 4% of channel capacity set-aside for noncommercial, educational and informational programming falls a good bit short of what PK and others have asked for. While we’re disinclined to fight over 1% of capacity (PK is asking for a 5% set-aside), there are other parts of this and other “commitments” that need change and clarification:

1. Channel capacity, not live, “full-time” channels, should be the metric for the non-commercial set-aside.

The Washington Post is reporting that FCC Chairman Kevin Martin is circulating a draft order that would permit the merger of XM and Sirius Satellite radio subject to six conditions. Under these conditions, the merged entity would

• place a price cap on programming (the AP is reporting that these would be three-year caps);

• offer a la carte programming choices;

• open the standards for satellite radio receivers so that any device manufacturer can make satellite radios;

• set aside 4% of their spectrum capacity (what now amounts to 12 channels) for non-commercial educational programming;

• lease another 4% to groups like minorities and women who are underrepresented in broadcasting; and

Ever since my policy blog and Huffington Post responses to Larry Lessig’s New York Times op-ed on orphan works last week, I have received a large number of fairly unfriendly comments and emails. I won’t quote them here for fear of being sued for copyright infringement (I wish I was kidding). Rather than respond to each one individually, I address the vast majority of the arguments raised in this speech, which I will be giving today at a conference at the University of Maryland University College. I look forward to a new barrage of comments.

I never like to disagree with my friends in public; particularly friends like Larry Lessig, who I greatly admire and who, through his 24-7 work as the first populist copyright reformer, made the existence of organizations like Public Knowledge possible.

NOTE: My original blog post on this topic stated that the Tennessee state legislature was on the verge of passing SB 3974, a copyright industry-supported higher ed filtering bill. As discussed below, SB 3974 has been replaced with a different (and weaker) version. I regret the error.

This Monday, April 14, is the deadline for submitting reply comments to the FCC on the issue of whether wireless phone companies should be able to block text messages based on their source or content. Several months ago, Public Knowledge, Free Press and a number of other organizations filed a petition asking the FCC to declare such practices to be illegal. The petition arose out of two incidents involving wireless companies: 1) Verizon refused to give a “short code” to the National Abortion Rights Action League to disseminate an action alert text message its members asked to receive, but which Verizon determined to be too controversial; and 2) Verizon, T-Mobile and Alltell refused to carry the text messages of competitive Voice over Internet Protocol (VoIP) providers.

Today, FCC Chairman Kevin Martin announced at the Cellular Telecommunications Industry Association (CTIA) conference that he is circulating an order at the FCC that would dismiss the petition (pdf) filed by Skype that sought an FCC ruling requiring a wireless network provider to allow the use of any non-harmful device and application on its network.

The rationale behind this decision is one we have heard many times over the past few months: Verizon announced that they are going to be open to third party devices and applications; the FCC already has required the C block of the 700 MHz spectrum recently auctioned to be open (again, controlled by Verizon); the wireless industry is headed in the direction of openness, etc. It’s done, so why do we need a ruling?

As has been well documented, Public Knowledge did not take a position on the merits of the antitrust law issues arising out of the XM-Sirius merger. But one need not be an antitrust expert to be a bit shocked at last week’s perfunctory three-page decision by the Department of Justice approving the merger. After over a year of deliberation, the Department concluded that the merger would not lessen competition and that the parties could not profitably increase prices because 1) the parties did not compete with each other in important market segments; 2) there are alternative services available to consumers and technological change is expected to make those alternatives increasingly attractive; and 3) efficiencies are likely to flow from the merger that could benefit consumers.

Sam Gustin of Portfolio.com reports that Warner Music group has given recording industry veteran (and friend of PK) Jim Griffin a three-year contract to develop a plan that would allow consumers to have access to all the online music they want for a monthly fee that would be bundled into their internet service bill.

Griffin has been urging the industry for years to move in this direction, arguing that suing customers and attacking technological innovation were dead ends that would not lead to any additional sales or fans. Why not try a fee of this type and get something for music shared online, as opposed to the nothing that they receive now? Griffin was right then, and he is right now. But the industry, faced with precipitously dropping CD sales and download sales that while robust, will never make up the difference, is finally listening.

Next up in our campaign for open phones and an open Internet is the Public Knowledge-Free Press petition that seeks to ensure that wireless phone companies do not block your text messages. Here are the facts: Verizon wireless blocked its customers from receiving NARAL Pro-Choice America action alert text messages – messages that Verizon customers had asked to receive - because it deemed those messages to be too controversial. While Verizon reversed its decision in the NARAL case, the company still maintains that it can decide who their customers can communicate with. And although Verizon promised Congress that it would develop a new text message policy some five months ago, we have yet to see it.