The Free and Open Internet: 1989-2014?

This is the way net neutrality ends: not with a bang, but with a whimper.

That’s my takeaway from the FCC’s unveiling a little over a week ago of its proposed new net neutrality rules, the replacement for the rules the courts threw out this past January, that effectively undermine the core premise of net neutrality by allowing ISPs to charge content providers for “priority” service to their customers. While ISPs could not outright block service, and FCC Chairman Tom Wheeler says he would not allow any company to use the rule to quash potential competitors or otherwise discriminate, such a rule would still advantage moneyed interests and make it harder for newer, smaller content providers to compete, especially those engaging in bandwidth-intensive services like video, which already have high capital and maintenance costs.

The truth is, though, this is the culmination of a series of moves that have slowly chipped away at the open Internet. AT&T has already flirted with making certain sites effectively cheaper for its customers, and the Comcast/Netflix deal may have been a bellwether for ISPs to impose such tolls with or without new rules. Moreover, over the past decade the Internet itself has undergone numerous changes as people have been increasingly filtering their Internet experience through social media and apps, both of which have the potential to undermine the open Internet and thus degrade support for it. We’ve reached the point where people within the industry are openly trying to argue against net neutrality – sometimes claiming in Orwellian fashion that ending or degrading net neutrality will somehow help preserve Internet freedom – and for “smarter” networks, with the chief of staff for an FCC commissioner arguing for networks that can “discriminate” between “vital healthcare info” and “a YouTube video of John Travolta mangling Idina Menzel’s name at the Oscars.” Of course, it should not be the place of ISPs or government to determine what is “vital” or not, but we may fast be approaching the point where that is precisely what they do.

Earlier this year, we marked the twenty-fifth anniversary of the World Wide Web. Before the Web came along, the Internet consisted primarily of expensive terminals at college campuses, and a series of walled gardens that effectively represented the Internet to the few people able to access it at home. Over the course of the 90s the Web effectively crushed all the walled gardens that had been built up and became synonymous with the Internet in most people’s minds. Now we may be drifting back towards an Internet landscape of walled gardens, under the aegis of ISPs, social media sites, and apps, where independent voices become harder and harder to be heard.

If one image could explain how we got to this point, it would probably be the one that accompanied Chris Anderson’s infamous 2010 Wired piece declaring “The Web is Dead”. It didn’t quite say what he wanted it to, but it did show that by 2010, video made up 51% of all Internet traffic in the United States. Keep in mind, this was over a year before Netflix’s Quikster fiasco, when the company tried and failed to split off its DVD distribution service, let alone Netflix’s major venture into original content with House of Cards and the like; YouTube was probably the biggest engine of all that video traffic in 2010.

As Anderson’s critics pointed out, this wasn’t because people were spending half their time on the Internet watching video, but simply because of the massive amount of bandwidth video consumption chews up. Now imagine video consumption double or triple, or even more, what it was in 2010 – that is to say, imagine all the other uses making up half, a third, or even less what it was then relative to the rest of the Internet. Imagine every ounce of video consumption that currently takes place on traditional broadcast and cable television moving to being carried over the Internet – a future that looks increasingly plausible. It’s easy to see how the Internet could become, from the perspective of the ISPs, first and foremost a video delivery service, even as all the other uses could easily make up half or more of its popularity, with the vast majority of the traffic on its wires coming from a small number of services. At that point, charging those services for the traffic coming down their pipes would make too much sense (even if ISPs were more willing to upgrade their networks on their own than they are now). Net neutrality would seem a quaint notion ill-suited to the realities of the modern Internet. (Better compression technologies will help, but those gains could be wiped out by demands for 4K and other high-end video technologies.)

The Internet may technically be able to absorb the intense demand for video coming its way over the course of the rest of the decade, but it’s looking likely that net neutrality will suffer greatly, if not be an ultimate casualty – unless we have some way to take some of the demand for video off of the Internet, or at least reduce the strain it might cause. The answer to that could come from a surprising source – a blast from the past flirting with its own complete obsolescence. This week I’ll have a series of posts on how sports is increasingly traditional linear television’s main reason for being, and how that’s warping both industries – and what that says about the Internet-centric future video is starting to transition to, as well as the role different technologies could have in saving net neutrality… if it isn’t killed off first.

2014 NFL TV Schedule

Here is the schedule of games on Fox, NBC, CBS, ESPN, and NFL Network for the 2014 season, which will kick off with the Packers visiting the Seahawks.

There are several changes to the NFL’s TV landscape this season. ESPN will air a Wild Card playoff game for the first time, while NBC will trade in one of its Wild Card games for a Divisional round game (the full postseason schedule will be announced at a later date). NBC will be able to flex in games as early as Week 5, but will be able to flex in no more than two games before Week 11. CBS and Fox will be able to air games from the other network’s conference, allowing this year’s Thanksgiving slate to consist entirely of NFC divisional matchups. Finally, CBS will simulcast the first half of the Thursday night slate with NFL Network, in addition to producing the entire slate.

Games marked with an asterisk (*) may be flexed out for any of the CBS or Fox games earlier in the day. Games marked with a cross (†) may also be flexed out, but no more than two games with a cross may be flexed out in this fashion. Follow the SNF Flex Scheduling Watch category for more information throughout the season. Games may also move to the network marked with a 4:25 ET start time. Networks in bold are cable. All times Eastern.

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2014 MLB TV Schedule

With the Major League Baseball season about to begin in earnest, here are all the games currently scheduled on Fox, FS1, ESPN, and MLB Network, not counting last weekend’s games in Australia. Additional games will be added on ESPN on Sunday nights, Mondays, and Wednesdays; MLB Network on Sunday afternoons, Saturdays, Tuesdays, Thursdays, Fridays, and select daytimes; and TBS on Sunday afternoons later in the season as the season progresses, plus Fox and FS1 the last two Saturdays of the season. Alternate games will be shown in local markets of MLBN games. All times Eastern.

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Is Aereo Legal? Should It Be?

(Disclaimer: I am not a lawyer, and I could very easily be talking out of my ass here. Take everything you read here with a grain of salt.)

The Supreme Court is set to decide, at least in part, the fate of Aereo; plaintiffs’ amicus briefs were due Monday, Aereo will present its opening argument by March 26 with amicus briefs in their favor due by April 2, and oral arguments will begin on my birthday, April 22. For those not familiar with it, Aereo is the service that has set up tons of tiny antennas and rents each one out to each of its customers. Customers can view free, over-the-air TV from their personal antenna over the Internet on whatever Internet-connected device they wish, and record said over-the-air TV on Aereo’s cloud DVR. Aereo claims that it is merely helping people access the free, over-the-air TV they’re entitled to, but if you think the foregoing description sounds like an unnecessary technological kludge, you’d be right. Broadcasters have been suing Aereo in any court they can, convinced that Aereo is getting away with not having to pay retransmission-consent fees cable operators are subject to, and fearful that cable operators might decide to do the same thing to get away from retransmission consent fees themselves.

That this is the issue is important, because the issue being presented to the Supreme Court is the notion that Aereo is engaging in a “public performance” in violation of copyright law. And as kludgey as the foregoing description is, it would be ridiculous to argue that it is based on it; Aereo isn’t engaging in any sort of “public performance” beyond what broadcasters are already doing with their free over-the-air signals, and any notion that what people do with their personal DVR service constitutes any sort of “public performance” is ludicrous, not to mention contradictory to past court decisions. In fact, it’s been argued that a decision against Aereo on this count could set a dangerous precedent that could preclude other technologies such as Slingbox.

Let’s be clear here. Aereo is clearly trying to take advantage of a loophole in the retransmission consent (not copyright) rules, and if it keeps winning in the courts Congress is going to have to step in, if only because it could render the retransmission consent regime unenforceable. Given that Congress is likely to close the loophole on which Aereo rests anyway, the Supreme Court doesn’t need to step in in order to kill Aereo. As such, it should avoid a decision that results in any sort of unintended consequences just to kill Aereo. The Supreme Court could rule on whether or not the loophole Aereo claims to have found exists, but it’s not its place to legislate it out of existence.

Broadcasters have argued that an earlier court decision in favor of Cablevision’s cloud DVR service doesn’t apply here, because Cablevision paid for the copyrighted content. But what about someone with an over-the-air antenna hooked up to a Slingbox? What has that person done to “pay for the copyrighted content”? Nothing, at least not to the broadcasters. Yet it’s obvious that such a situation is fully legal and within the intent of the law: Congress has mandated that television signals broadcast over-the-air be available free for anyone with an antenna to pick up, and the Betamax decision established the legality of recording content for personal use.

To close the loophole on which Aereo rests, Congress would need to figure out what differentiates the above situation from what Aereo is doing. One way it could do so is by noting that Aereo is charging for access to free over-the-air TV. In other words, Aereo is making money off of broadcasters’ free over-the-air signals, and so is bound to kick some money back to them. If Aereo were really interested in just helping people access the free over-the-air TV they’re entitled to from their own personal antenna, they wouldn’t be charging rent for access to that antenna (which implies that Aereo, not the consumer, actually “owns” that antenna). But that has nothing to do with copyright, and if that’s not what retransmission-consent law says already, that’s not the place for the Supreme Court (or any court) to decide that it does.

2014 NASCAR TV Schedule

On the eve of the Daytona 500, here is the TV schedule for every NASCAR Sprint Cup Series race this season. The Daytona 500 is in bold, race names in italics are Chase races, and networks in bold are cable. All times Eastern.

Countdown Time Net
NASCAR: Daytona 500 2014-2-23 13:00:00 GMT-05:00 2/23 1:00 PM FOX
NASCAR: The Profit on CNBC 500 2014-3-2 15:00:00 GMT-05:00 3/2 3:00 PM FOX
NASCAR: Kobalt 400 2014-3-9 15:00:00 GMT-04:00 3/9 3:00 PM FOX
NASCAR: Food City 500 2014-3-16 13:00:00 GMT-04:00 3/16 1:00 PM FOX
NASCAR: Auto Club 400 2014-3-23 15:00:00 GMT-04:00 3/23 3:00 PM FOX
NASCAR: STP 500 2014-3-30 13:00:00 GMT-04:00 3/30 1:00 PM FOX
NASCAR: Duck Commander 500 2014-4-6 15:00:00 GMT-04:00 4/6 3:00 PM FOX
NASCAR: Bojangles’ Southern 500 2014-4-12 18:30:00 GMT-04:00 4/12 6:30 PM FOX
NASCAR: Toyota Owners 400 2014-4-26 19:00:00 GMT-04:00 4/26 7:00 PM FOX
NASCAR: Aaron’s 499 2014-5-4 13:00:00 GMT-04:00 5/4 1:00 PM FOX
NASCAR: Name TBD (Kansas Motor Speedway) 2014-5-10 19:00:00 GMT-04:00 5/10 7:00 PM FOX
NASCAR: Sprint Showdown 2014-5-16 19:00:00 GMT-04:00 5/16 7:00 PM FS1
NASCAR: Sprint All-Star Race 2014-5-17 21:00:00 GMT-04:00 5/17 9:00 PM FS1
NASCAR: Coca-Cola 600 2014-5-25 18:00:00 GMT-04:00 5/25 6:00 PM FOX
NASCAR: Name TBD (Dover International Speedway) 2014-6-1 13:00:00 GMT-04:00 6/1 1:00 PM FOX
NASCAR: Pocono 400 2014-6-8 13:00:00 GMT-04:00 6/8 1:00 PM TNT
NASCAR: Quicken Loans 400 2014-6-15 13:00:00 GMT-04:00 6/15 1:00 PM TNT
NASCAR: Toyota Save Mart 350 2014-6-22 15:00:00 GMT-04:00 6/22 3:00 PM TNT
NASCAR: Quaker State 400 2014-6-28 19:30:00 GMT-04:00 6/28 7:30 PM TNT
NASCAR: Coke Zero 400 2014-7-5 19:30:00 GMT-04:00 7/5 7:30 PM TNT
NASCAR: Camping World RV Sales 301 2014-7-13 13:00:00 GMT-04:00 7/13 1:00 PM TNT
NASCAR: Brickyard 400 2014-7-27 13:00:00 GMT-04:00 7/27 1:00 PM ESPN
NASCAR: GoBowling.com 400 2014-8-3 13:00:00 GMT-04:00 8/3 1:00 PM ESPN
NASCAR: Cheez-It 355 at the Glen 2014-8-10 13:00:00 GMT-04:00 8/10 1:00 PM ESPN
NASCAR: Pure Michigan 400 2014-8-17 13:00:00 GMT-04:00 8/17 1:00 PM ESPN
NASCAR: Irwin Tools Night Race 2014-8-23 19:30:00 GMT-04:00 8/23 7:30 PM ABC
NASCAR: Name TBD (Atlanta Motor Speedway) 2014-8-31 19:30:00 GMT-04:00 8/31 7:30 PM ESPN
NASCAR: Federated Auto Parts 400 2014-9-6 19:30:00 GMT-04:00 9/6 7:30 PM ABC
NASCAR: Name TBD (Chicagoland Speedway) 2014-9-14 14:00:00 GMT-04:00 9/14 2:00 PM ESPN
NASCAR: Osram Sylvania 300 2014-9-21 14:00:00 GMT-04:00 9/21 2:00 PM ESPN
NASCAR: AAA 400 2014-9-28 14:00:00 GMT-04:00 9/28 2:00 PM ESPN
NASCAR: Hollywood Casino 400 2014-10-5 14:00:00 GMT-04:00 10/5 2:00 PM ESPN
NASCAR: Bank of America 500 2014-10-11 19:30:00 GMT-04:00 10/11 7:30 PM ABC
NASCAR: Geico 500 2014-10-19 14:00:00 GMT-04:00 10/19 2:00 PM ESPN
NASCAR: Goody’s Headache Relief Shot 500 2014-10-26 13:30:00 GMT-04:00 10/26 1:30 PM ESPN
NASCAR: AAA Texas 500 2014-11-2 15:00:00 GMT-05:00 11/2 3:00 PM ESPN
NASCAR: Quicken Loans 500 2014-11-9 15:00:00 GMT-05:00 11/9 3:00 PM ESPN
NASCAR: Ford EcoBoost 400 2014-11-16 15:00:00 GMT-05:00 11/16 3:00 PM ESPN

What does the Comcast-Time Warner Cable merger mean for you?

It certainly doesn’t sound good when the two largest cable operators, substantially bigger than any of their non-satellite rivals (a year ago TWC had 12.2 million subscribers; even counting telco companies Verizon had only 4.7 million), announce they’re going to merge. As part of the deal, Comcast announced it would sell off systems representing 3 million subscribers to other parties, getting to 30 million and under a former 30% cap that had been thrown out by the courts. Were it not for that, the combined Comcast-Time Warner monolith would have had control over fully a third of the market, over seven times that of the next largest cable company, and nearly as big as DirecTV and Dish Network combined. But what would that actually mean?

Cable operators are natural monopolies; with the exception of a few “overbuilders” (none of which have more than a million subscribers), in most places you only have the choice of one cable operator if you don’t want to get a dish or Verizon or AT&T aren’t available. There’s basically nowhere where Comcast and Time Warner Cable were in direct competition with one another. The fear of a Comcast-TWC merger, it seems, is that such a behemoth could basically set up shop wherever it wanted and keep other cable operators from growing, but even then it’s hard to see how realistic that is. (Or maybe that Comcast could afford to rest on its laurels in terms of service, making it even more Comcrap.) Comcast’s purchase of NBCUniversal had the potential to be far more detrimental to the consumer in this light.

The image that comes to mind when it comes to horizontal integration on this scale is the former AT&T telephone monopoly, but even that was not broken up so much because of its overall reach but because of its vertical integration with AT&T’s business selling telephones and using its control of the phone network to undercut rival phone sellers. Perhaps the analogous fear is that Comcast will use its broad reach to show preferential treatment to NBCUniversal networks, crippling rival programmers by denying them access to 30% of the country or subjecting them to onerous conditions to get there, but it’s not clear that’s actually possible, certainly not as cable providers increasingly become Internet providers first and foremost – especially given the conditions Comcast agreed to as part of the NBCU deal, including abiding by net neutrality even after the courts threw the FCC rules out last month. If anything a larger Comcast (which, if it continues negotiating for Bright House Networks as TWC had, will be negotiating on behalf of 32 million subscribers) might actually lead to positive outcomes for consumers in the long term, standing up to increasing rights fees asked for by other programmers, especially ESPN – though of course Comcast’s own stake in content production might still give them an edge that results in worse outcomes for rival content providers and consumers. (Time will tell if the new Comcast’s approach to sports networks will be more like that of Comcast – which has largely avoided rocking the boat with anyone en route to a portfolio it proclaims as “your home for the most live sports”, legal wrangling with Tennis Channel excepted – or Time Warner Cable, with its high-profile showdowns with the likes of NFL Network, MSG, Viacom, and broadcast networks like CBS and Fox.)

Of course, where those fears might be well founded is in how much leeway Comcast has had even under net neutrality rules, including engaging in its own carriage disputes with bandwidth providers, throttling traffic on video sites, and imposing broadband data caps. A monolithic Comcast/TWC union could still conceivably, without restrictions imposed by Congress or the FCC or agreed to voluntarily by Comcast, create winners and losers in the Internet marketplace, to the point of being able to throttle cord-cutting for a substantial number of Americans. That underscores the importance of allowing as much video as possible to be transmitted over the air where it can lie outside of Comcast’s reach.

Making sense of the Thursday Night Football deal

After over two years of speculation, the NFL has finally sold half of its Thursday Night Football slate… in a way no one could have anticipated.

As the NFL started ramping up the bidding process for the new package over the past month, some of the details that started coming out were head-scratching. The NFL expressed its preference to put the games on broadcast, not cable, which eventually grew to the point of basically insisting on it. The NFL also expressed its desire to simulcast the games on NFL Network.

Neither of these made any sense to me. The whole point of selling the games, I would have thought, was to get networks like NBCSN or FS1 to pony up the subscriber-fee-backed dough to take on programming that could boost those subscriber fees to the moon, to say nothing of ESPN protecting its own turf or Turner propping up TruTV or giving a boost to TNT. Broadcast networks have started catching up to cable with their retransmission consent fees, but the possibility of cord-cutting, or technologies like Aereo, could always be lurking in the background, and their owners continue to put their emphasis on cable wherever possible; the first twelve years of the college football playoff, after all, will still be on ESPN. Certainly the big four broadcast networks would fall over themselves to get the package, though it’s still the bank of crappy games NFLN has had for the past two seasons, but they wouldn’t pay nearly as much as cable networks would. And what did the NFL expect to gain by simulcasting games on NFL Network? Did they really think Time Warner Cable and Cablevision were so stupid they would treat NFLN as though it still had a full-season schedule despite the fact they could get 6-8 of its games anyway on a broadcast network? The NFL seemed to want it both ways.

I wonder if the key to the NFL’s thinking was the fact that this was a one-year deal (although the eventual deal also contains an option for a second year). I wonder if the NFL was floating a trial balloon to see how much money the Thursday package was worth, while also seeing what the reaction of cable companies might be to NFLN losing a bunch of games without actually having NFLN suffer too much – perhaps not wanting to lose people used to turning on NFLN on Thursday nights. The NFL might also want to see how much of TNF’s ratings, which are substantially behind those of the NFL’s other packages, are because of NFLN’s limited distribution or the crappy bank of games, while trying to build an audience for the games on the broadest distribution platform available and get more people used to watching the NFL on Thursday night. Perhaps they floated out feelers to Comcast, Fox, Turner, and ESPN and didn’t like the potential bids they got, so they decided on a different approach that could boost the value of the package and help them determine what balance of rights fees to boosting NFLN to strike. Depending on what the ratings are on CBS and NFL Network for each half of the package, as well as what the reaction of cable companies will be, the NFL may decide to sign a longer-term deal with a cable network, or keep more games on NFL Network again, or something else entirely.

But I can’t help but wonder if this marks a turning point in the bigger picture. The last few years have seen more and more events move from broadcast to cable and the accompanying explosion of the sports TV wars. Now the kingpin of American sports has seemingly moved in the opposite direction, and put a package on broadcast that might otherwise have seemed destined for cable. It may be a small step, but I hold out hope that when we look back, it marks the point the tide started to turn in broadcast’s favor – though the NBA could end up having a bigger impact on that later this year.

(I am surprised at CBS’ win, not because of their strong Thursday primetime lineup, but because of the same reason I didn’t see FS1 winning the package: it was just too awkward for CBS to take on a conference-agnostic package alongside having all the non-primetime AFC games. I thought NBC was the favorite, more because of synergy with their Kickoff and Thanksgiving night games than because of their weak Thursday primetime lineup, with ABC being second favorite by default.)

The Studio Show Scorecard for Week of December 16-22

PT Rnk

MM Rnk

TD Rnk

Nov Distr.
(000)
PT Vwr
(000)
LW/LY TD Vwr
(000)
TD HH TD Vwr
LW/LY
MM Vwr
(000)
MM HH

1

=

1

=

1

=

97370

3060

-12%

1161

0.8

-2%

624

0.5

=

=

84%

3060

-14%

1161

-3%

-10%

624

-5%

2

+1

2

=

2

+1

97407

656

+70%

307

0.2

+26%

249

0.2

=

=

84%

656

+32%

307

+19%

+5%

249

+9%

3

-1

3

=

3

-1

72066

206

-84%

135

0.1

-61%

115

0.1

+1

=

62%

278

+17%

182

-55%

-11%

155

-15%

5

+2

6

+4

4

+3

74882

157

+17%

85

0.1

+34%

46

0.0

=

+2

65%

204

+1%

111

+51%

+31%

60

+31%

4

+1

7

=

5

-1

78139

187

+11%

76

0.0

-8%

45

0.0

+5

+3

67%

233

+217%

95

-1%

+81%

56

+2%

6

-2

5

+2

6

-1

59078

153

-27%

68

0.0

-6%

49

0.0

-3

-1

51%

252

-29%

112

-7%

-7%

81

+11%

8

=

4

+2

7

+2

74685

106

-10%

62

0.0

+6%

57

0.1

=

=

64%

138

+22%

81

+17%

+13%

74

+24%

9

=

8

-4

8

=

81751

104

+17%

53

0.0

-13%

43

0.0

-2

+1

71%

124

+13%

64

-18%

+37%

51

-17%

7

-1

9

=

9

-3

88556

144

-7%

52

0.0

-26%

37

0.0

-1

-5

76%

158

+14%

57

-43%

-33%

41

+3%

10

=

10

-5

10

=

70036

53

-26%

36

0.0

-31%

33

0.0

+1

=

60%

74

+56%

50

-62%

+30%

46

-31%

I’ve added a new metric of my own devising to the table above, which I call the median minute, and represents a crude attempt at measuring the viewership level at which half the minutes of the week are above that point and half below. I think this better represents the top-to-bottom health of a network, especially its studio shows, compared to the primetime and total day metrics that can be unduly influenced by live events. Generally, you would expect that, while the primetime viewership is usually higher than the total day viewership, the median minute is the reverse (and more reliably so), and a network that ranks higher in primetime than in total day will rank lower in median minute than total day and vice versa. Because I’m calculating median minute entirely on my own, comparisons to a year ago will not be available at first.

Also, when I’m taking the average of a repeated studio show and the result comes out to something with a .5 at the end, I’m going to mark it by including a “½” in the recorded number, rather than blindly rounding up as normal rounding rules would suggest, because it’s impossible for me to know what side of the line the average would actually be on. Finally, because a substantial number of (especially ESPN) studio shows took the holidays off, I may skip the next two weeks in order to catch up.

All numbers are in thousands of viewers and are from Son of the Bronx.

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