Marvin Ammori

For weeks, newspapers have reported in their business pages on a possible Comcast-NBC Universal merger (announced today), as a business story.  The merger is more than a routine business story.  The merger signifies massive media consolidation.  This consolidation gives one company—Comcast—enormous control over the speech shaping Americans’ lives and shaping our democracy. The merger puts Comcast in control of MSNBC (a 24 hour news channel with an enormous impact on public opinion), CNBC (which impacts public opinion about Wall Street, now a hotly debated political question), NBC network (whose nightly news show averages eight million viewers, many times that of cable shows like those on Fox News), and 27 television stations (which generally have programs covering local news).

Putting so much power in the hands of one company—and, specifically, its executives—is dangerous for a democracy.  There is a reason why autocratic regimes control the media—media shape public opinion and define what is “possible” in politics.  We have seen the problem of private media consolidation in many countries. In Italy, Silvio Berlusconi used his massive media empire to win elections and is now Prime Minister (Italy’s longest serving ever).  In Argentina, the government had to pass a media consolidation law because of the power of one media company that happens to be far smaller than a combined Comcast-NBCU.

How exactly is consolidation bad for democracy?  Without being exhaustive, I’ll list three ways—targeted private censorship, structurally closing out independents, and favoring one-way communications.

First, consider private censorship.  Big media companies can “censor” ideas they disagree with—they either don’t cover the censored ideas or cover them unfairly.  You may remember what a poorly job the big media did with the run-up to the Iraq War. Specifically with Comcast, Comcast has censored important political ideas it disagreed with.  For example, last year, cable and phone companies involved in the White House’s illegal, secret wiretapping program were lobbying for immunity from lawsuits.  [Clarification, and note below: Comcast did not itself lobby on the wiretapping legislation.]  While they lobbied to be above the law, some organizations took out advertisements criticizing the Congressmen collaborating with the phone and cable industry.  One Congressman was a Democrat in Pennsylvania (Comcast’s home) Christopher Carney; that Congressman had taken lots of campaign money from Comcast and supported their immunity.  While many media outlets ran an advertisement linking Carney and Comcast, Comcast refused.  Comcast came up with excuse after excuse, and then simply didn’t run the ad.  If Comcast had owned NBCU then, more outlets would have censored their advertisement—and people watching MSNBC, CNBC, NBC nightly news, and one of the 27 NBC stations would not have seen the ad on those outlets.  Of course, a key goal of free speech would be frustrated–to ensure that the public can debate and be informed about the decisions of Congressmen.  Keep in mind also that Comcast now owns MSNBC, the home of Keith Olbermann and Rachel Maddow, and is the company that paid people to sit at a government hearing (on net neutrality) and clap every time their executive spoke. We hope its newsmen don’t do the same.  But here are the campaign contributions of the Comcast CEO, which are worth studying, as he may soon have even more political influence than he has today.

Second, this merger may make it harder for independent voices.  When Comcast owns many TV networks, Comcast has incentives to favor the networks it owns and to carry them on cable TV.  Put simply, independent cable TV networks have fewer slots to be carried, as Comcast will use channel slots on networks owned by Comcast.  Already, independent networks argue that companies like Comcast discriminate against them and force the networks to give up some ownership of their company to be carried on cable.  The biggest content companies—like NBC before—can force Comcast to carry their biggest channels and can force Comcast to carry some less popular channels as a price for carrying the big ones.  So what happens in the end is a small independent network often has to sell itself to a Comcast or an NBC to get on cable TV and to survive.  That is not a good outcome for Americans.  Rather than having the option of cable channels owned by lots of different, independent groups, the speech is owned and controlled by a small club of companies.  That club gets much smaller with a Comcast-NBCU merger.  This club that would expand greatly if Comcast didn’t own TV networks.

Third, this merger favors one-way communications over open, two-way, “read-write” communications.  As I mentioned, Comcast has an incentive to favor its own networks (for the economics/law geeks out there, see here and here).  As a result, Comcast does not have an incentive to permit all forms of communication to flourish, but has incentives to favor its own programming, and to control other programming delivered over its cable TV and Internet access platforms.  Comcast has less incentive to support wide open two-way communications available on an open Internet—which is why the FCC had to punish Comcast for blocking Miro and other BitTorrent applications on the Internet, finding also that Comcast had an anticompetitive incentive to block online TV technologies.  It’s why Comcast has been spearheading something called TV Everywhere, which ties consumers’ ability to access online TV to payment for a Comcast cable TV subscription.

So, for three reasons, this merger is bad for democracy—private censorship, closing out independents, favoring one-way Comcast-controlled communications.  It is not routine business.  The public should take note of this affect on our democracy.

That is why organizations like Free Press and Media Access Project and Consumer Federation of America are working with allies in the StopBigMedia Coalition to oppose this merger (here’s a recent report).

It’s also why the Obama Administration, whose president  campaigned on a promise to promote media diversity, and whose campaign inspired democratic participation, should stand with the public and likely block this merger.

Note:  I added a clarification above that Comcast did not lobby on the wiretapping issue, according to their lobbying reports (which Comcast shared with me and are available here, here, here, here, and here).  To have implied otherwise was a mistake.  Comcast’s expressed problem with the proposed advertisement was that the ad was inaccurate by (a) implying Comcast lobbied for immunity and, apparently without evidence, that (b) Comcast would get a specific benefit from the specific bill at issue.  I thank the folks at Comcast for calling me to discuss that point.

More broadly, the principle is correct–media companies have the legal power to engage in private censorship, which is an important potential source of power over our discourse.  Moreover, stories of media companies altering reporting to benefit their own self interest are not uncommon (for some stories, see paragraphs 360-365 of even the controversial 2003 FCC Order relaxing broadcast ownership rules).

I have a lot of thoughts about the potential merger, which I hope to share when time permits.  For now–I agree with people like Tim Wu and Josh Silver that the government should block the merger.

A Bloomberg story by Todd Shields, which I’ll share here, included a few of my thoughts.

Today, I figured I’d catalog some of the recent press hits for the UNL Space & Telecom Program, a program with which I am affiliated as a law professor at the U-Nebraska College of Law.

We had a stellar conference last week in DC, which resulted in at least six news stories.

Four of them were in the Washington Post and the Post online, and pertained to statements and ideas mentioned in a Keynote Conversation at our conference, on Thursday Nov. 19, between Andrew McLaughlin of the White House and Tim Wu of Columbia Law School.  Numbers 2 and 3 mention the conference by name: (1, 2, 3, and 4).

The Hill covered the keynote opening address by Alec Ross, of the State Department.

I wrote a Huffington Post story about an issue in these stories.

Broadband Census also covered the conference.

Outside the conference, this month, my thoughts were featured both in the Post (about set top boxes) and the Hill (on online shopping and policy).

Apparently, the first Monday after Black Friday is a big online shopping day, as Americans go back to work … and shop online.  Whether CyberMonday is hype or not for retailers, it’s a good day to celebrate Internet openness.

For years, a debate has raged in DC over whether phone and cable companies should be allowed to block, discriminate against, or otherwise interfere with users’ access to everything online.  The millions of people and hundreds of groups favoring Internet openness advocate for a network neutrality law, ensuring this openness.  Many favor net neutrality because of free speech concerns.

But let’s not forget that an open Internet supports American business.  Any company, or person, can sell any products online without permission.  Any person can go to any site–not one with a special deal with the phone or cable company–to buy any gift for any loved one.

It’s for business reasons that net neutrality proponents include Amazon, EBay, Sony, Google, and Expedia. It’s why top venture capitalists argue that, in the 21st Century, investment in new businesses and entrepreneurs–and therefore job growth–rests on net neutrality.

So enjoy the open Internet today–and maybe interrupt your CyberMonday shopping for a moment of work for net neutrality–whatever your day job…

Last week, the University of Nebraska-Lincoln College of Law’s Space & Telecomm Program organized a conference in DC.

Discussions at the conference about  free speech, diplomacy, and foreign policy have resulted in quite a bit of press.  Government speakers mentioned the obvious: that if we don’t protect Internet freedom at home–from public or private gatekeepers–then we undermine our strength abroad in arguing for Internet freedom and for citizens’ increased access to participatory technology tools.

The Hill and Washington Post reported on some statements at the conference, and the Post covered the follow-up debates.

I wrote a post at the Huffington Post about the principle of network neutrality and its influence on our diplomacy and foreign policy objectives.

In addition to prompting this healthy public discussion, we at UNL were fortunate to have an exceptional lineup of influential speakers over two days and were excited that our LLM students could join us–and that an alum, who is now a legal advisor in the U.S. Air Force JAG on cyberwarfare law, was able to present.

Not many hints in the record, but hopefully the confirmation means good things.  I wrote a post about this over at HuffPost.

A CBC article about today’s hearing covered our panel.  The Chairman of Canada’s CRTC seems very bright, thoughtful, and careful, and we received some good questions from members of the CRTC.

I testify on a panel before the Canadian Radio-television and Telecommunications Commission on Internet issues and network neutrality on Tuesday.

Just want to highlight a study from a few weeks back, since this issue comes up to often.

As you already know, the study concludes,  phone and cable carriers continue to raise your rates on Internet access.  Phone and cable companies also complain that you use the Internet too much so they have to block, slow down, or charge you even more for the online software you love.  But, it turns out, as is the case in high-tech industries, their costs are going down.  Technology gets better, so producer costs go down, and so consumer prices should go down with them.  In fact, abroad, broadband prices went down around the world by 37%, according to the study, while increasing here.  What’s the matter with US?

It’s not technology but policy and market structure.  The study shows that areas with more competitors benefit from lower prices–competitors have to charge less, rather than soak up fat profits.  As their own costs fall, the carriers have to pass those savings onto consumers or be killed in the market.  In the US, thanks to FCC “deregulation” under the Bush administration, we have little competition, high prices, and threats to network neutrality, rather than high-speed, open, competitive offerings.  The magic of the unfettered, concentrated market.

The FTC wants to know how phone and cable companies are using tools to monitor Internet traffic, called deep packet inspection or DPI.  DPI has been used secretly to block Internet applications in the US, spy for advertisers in the US, and crack down on dissent in Iran and China.