There ought to be a law: If you own the conduit, you can’t own the content. But fat chance it’ll ever happen, and those who call for one are going to have better luck spitting into the wind. In the immortal words of Creedence Clearwater Revival: "There’s a bad moon on the rise."
Of course the most hyped mega-merger in recent months is that of America Online and Time Warner. When this marriage is complete, AOL will become the 80-pound gorilla of content and carriage on the Internet. And despite the touchy-feely good vibes of AOL CEO Steve Case during the news conference announcing the deal—where he said that all competitors would be welcome on the AOL–Time Warner system—I have grave doubts.
Time Warner’s vast media empire isn’t going to accept equal or lesser footing with competing content. With the cable delivery system it has to push content onto the computer screens of millions of consumers, there’s little doubt that Time Warner content will receive preferential, if not exclusive, treatment.
The mainstream voices will become louder and the independent voices, well, they will simply fade into the digital noise of the Net, harder to find, harder to access; seen and heard by an increasingly smaller audience.
These fears aren’t unfounded. You only have to look at lesser marriages of content and conduit to see what will come of the AOL–Time Warner deal.
Microsoft co-founder and billionaire Paul Allen’s Vulcan Ventures made a substantial investment in High Speed Access Corporation, a company supplying high-speed Internet service to small and mid-sized cable systems, and HSA signed deals with two Allen-owned cable companies.
Sounds straight forward enough, until you dig into the S-1 filing of HSA for the details of its so-called "Network Services Agreement" with the Allen-owned cable companies. Under that agreement, the company warns investors that one of the risks they face is that cable companies can terminate their agreement, thus robbing HSA of vital revenue, if certain content restriction agreements aren’t kept.
Those content restrictions say that Allen’s Vulcan Ventures can "prohibit us from providing content that competes with content it chooses to provide."
The HSA filing also notes that "[u]nder our programming content agreement with Vulcan Ventures, Vulcan has the right to require us to carry, on an exclusive basis in all cable systems we serve, content it designates."
When companies own the content and the conduit, they believe they have the right to play dictator and moral compass for your online life. Does content compete with a Time Warner brand? Block it! Is content too controversial for the corporate suits? Restrict access to it!
Apparently not satisfied with dictating what content HSA can and can’t carry, Vulcan also wants to control the initial look and feel of the user experience when a cable-modem subscriber of HSA first signs on: "Vulcan content may include start-up and related Web pages, electronic programming guides, other multimedia information."
That provision sounds eerily close to the Microsoft start-up restrictions that bar computer makers from mucking around with the start-up screens in the boot-up process of the Windows operating system, restrictions that came under fire in the antitrust case against the software giant.
And finally, as if the digital handcuffs aren’t tight enough, HSA also says Vulcan can prohibit it from providing telephone services over its cable platform.
Benevolent Dictator
It is hard to imagine that AOL’s Case could perpetrate such a blatant act of high-stakes gamesmanship on the public and expect to get away with it, yet that is exactly what he’s done.
AOL previously led the charge on the national stage and in court, pushing AT&T to open its cable modem access platform to all comers. Until recently, AT&T had an exclusive deal to provide the ExciteAtHome cable modem service to its cable subscribers. AOL and its OpenNet coalition fought AT&T in the courts and in public forums, arguing that any ISP should be allowed on that cable Internet on-ramp.
AT&T is working on the situation. Its exclusive contract with ExciteAtHome ends in a couple of years, and it has claimed that a recent deal to carry Mindspring on its cable systems will be followed by other such deals.
Case assured the public he would continue to support the open access issue and all competitors would be welcome on the RoadRunner cable system, now partly owned by Time Warner and a property of AOL once the merger goes through.
Case’s comments were received with a healthy dose of skepticism from critics, myself included. "The devil is in the details," and it remains to be seen just how democratic the access rules for the aforementioned "all competitors" will be.
In the meantime, AOL has all but abandoned its call for open access, though it is, for the moment, still a member of the OpenNet coalition, a group it helped organize and fund.
AOL has begun telling its lobbyists at the state and federal level to stop pushing legislation that mandates open access for cable companies. AOL now says "the market" can best make those decisions and lawmakers only muck up the process.
Does that mean that AOL will resort to being a "bad actor" when it comes time to pony up fair and equitable access rules for its competitors? No, but it does mean that AOL can’t be held to a firm position.
It also means if AOL decides to completely deep-six the philosophy of open access, there will likely be no laws on the books to stop it from discriminating, and any move to reenergize the open access cause will have to start from ground zero.
Of course, the OpenNet coalition has vowed to carry on the fight. And although OpenNet is fronted by a bulldog lawyer named Greg Simon, who was formerly a member of Vice President Al Gore’s staff, the fact is, OpenNet’s biggest dog in the fight—AOL—has clearly lost its appetite.
And then there is this niggling little issue called "privacy" that AOL will have to deal with once the merger goes through; more likely, it will simply overlook it.
As a subscriber to the RoadRunner cable modem service, I received a document that outlines, in very small type, the basic legal agreements between myself, Cox Communications, the cable provider in my area, and Time Warner.
In a paragraph headlined, "Monitoring" it states that Time Warner and the cable company "each have the right, but not the obligation" to monitor the content on the RoadRunner service that resides on its computers. This includes chat rooms, forums, and so forth. What is disturbing—no, heinous—is that Time Warner tells me in this paragraph that it has the right to monitor both home pages and email messages that live on its servers!
And the company can do this without notifying me because, well, they’ve apparently already warned me in the small print that my constitutionally guaranteed rights to free speech don’t mean squat in cyberspace. The company says it can edit or remove any such material it deems to be "objectionable" including "indecent or obscene words or material; obstructive or disruptive communications; epithets and the like." Whatever "and the like" is supposed to mean; the contract doesn’t specify.
Bottom line is when these companies own the content and the conduit, they believe they have the right to play dictator and moral compass for your online life. Does content compete with a Time Warner brand? Block it! Is content too controversial for the corporate suits? Restrict access to it! Is a rabble-rousing columnist using his RoadRunner email account to stir up trouble? Monitor his email and remove it if need be!
Owning the content and the conduit: there ought to be a law against it. Fat chance. And yes, that’s me outside your window, spittle on my chin.
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