Press Release

Public Knowledge Tells FCC To Protect Web Video, Re-Think Broadband Benchmarks

September 2, 2009 , , , ,

In testimony to FCC workshops, Public Knowledge President Gigi B. Sohn will recommend tomorrow that the FCC use its National Broadband Plan to protect consumer access to “over-the-top” video services like Hulu. Legal Director Harold Feld will recommend today that the Commission expand its set of broadband benchmarks while using new data-collection techniques to include a wider “broadband ecology.” Sohn will testify tomorrow on the panel dealing with Internet TV issues, scheduled for 11:15 a.m. Feld will testify today at the session on benchmarks, scheduled for 1:30 p.m.

In her prepared testimony, Sohn said that more and more consumers are embracing “over-the-top” video — that is, video that goes directly from a source to the consumer, such as Hulu, rather than programming provided by a cable or similar company.

The Federal government “must help foster an Internet video ecosystem that is competitive, open to new entrants and accessible to all Americans,” Sohn said, at the same time incumbent providers have even more of an incentive now than in the past to unfairly disadvantage over-the-top video services vis-à-vis their own offerings.

“For this reason, the Commission must closely scrutinize practices by 1) a network provider that competitively disadvantage over-the-top video; and 2) a content provider that competitively disadvantages both over-the-top video and network providers, particularly smaller network providers,” Sohn said in her prepared statement. Among the threats to over-the-top video are TV Everywhere, in which subscribers to video programming services are given privileged access to online content; bandwidth caps, which could be used for anticompetitive purpose; requiring Internet Service Providers to pay for access to certain web content in order for their customers to see it, such as ESPN360, and discrimination against some mobile video applications, such as AT&T blocking Sling Media online.

The Commission should enforce non-discrimination and openness principles for Internet video, Sohn recommended, telling the Commission that:

  1. No provider should be allowed to use a network management technique that privileges or discourages access to lawful content;

  2. The Commission should closely scrutinize initiatives such as TV Everywhere and ESPN360.com, as well as the use of bandwidth caps and should ensure that these practices are not used to anticompetitive ends;

  3. The Commission should encourage innovation in the Internet video hardware and software marketplace by rigorously enforcing the sections of the Communications Act, to ensure that “cable Carterfone” protections allow Internet video content to be delivered to the television set without interference;

  4. The Commission should ensure that over-the-top video providers have the same safeguards against anti-competitive activity, and the same access to programming, as do other video provider;

  5. Consumers should be able to buy video service or broadband service separately, without being penalized if they don't want to buy one or the other.

In his prepared testimony for Sept. 2, Feld called for the Commission to take a more comprehensive look at collecting information than it had so far. He said the Commission should move “from a simple 'broadband marketplace,' focusing exclusively on producers and consumers, to a 'broadband ecology,' in which broadband deployment and availability have wide reaching impacts on diverse sets of stakeholders and are in turn impacted by developments in these different stakeholder communities.”

Feld said the National Broadband Plan the FCC is directed to construct should include:

  1. an analysis of the most effective and efficient mechanisms for ensuring broadband access by all people of the United States;

  2. a detailed strategy for achieving affordability of such service and maximum utilization of broadband infra-structure and service by the public;

  3. an evaluation of the status of deployment of broadband service, including progress of projects supported by the grants made pursuant to this section; and

  4. a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.

The full statements are available at: