December 2012

"Common Carriage" and the Open Internet after the DC Circuit's Data Roaming Decision

The Federal Communications Commission won a big legal victory when the DC Circuit denied a challenge by Verizon to its data roaming order. The data roaming order itself is important, since it updates the FCC's long-standing voice roaming rules to include wireless Internet access services. It allows smaller carriers to offer nationwide service, and it makes it so that all users can travel around the country without losing service or incurring high bills. But many people immediately starting thinking about what the implications of this decision are for the FCC's Open Internet rules.

The ‘Mad Men’ Economic Miracle

Cliffhangers may have been around for more than a thousand years — since at least the composition of “One Thousand and One Nights” — but no one has monetized them as brilliantly as cable networks.

In order to get paid, Charles Dickens had to sell the next chapter of his serialized novels; in order to sell advertising, ABC had to order more episodes of its hit show “Lost.” But for the next several months, AMC is converting our eagerness to see “Breaking Bad” into millions of dollars without showing a single new episode. Cable TV has developed one of the most clever business models in our modern economy. Until recently, AMC was a basic-cable backwater known for “Three Stooges” marathons. But a few years ago, it tweaked its business and began offering two or three hours of original programming on a few dozen nights a year. Starting with “Mad Men” in 2007, the network landed hit shows that developed small but obsessive followings. Soon after, it began making larger financial demands of the cable and satellite providers, like Comcast and DirectTV, that carry the network. AMC now charges these providers about 40 cents a month for each subscriber, including the millions who will never watch “Mad Men” or “Breaking Bad.” These providers can refuse to pay up, but doing so would infuriate legions of vocal viewers. AMC collects $30 million a month in fees alone on a base of 80 million subscribers, which is pretty good considering that the last episode of “Breaking Bad” had fewer than three million viewers. This business model, perhaps as much as artistic creativity, is responsible for TV’s current golden age.

Mary Meeker sees Web trend toward consumer access

CD wallets, bookshelves, DVD towers and even garages may be fading away as a new generation lets technology affect the way it thinks about ownership.

Citing the rise of services such as Spotify, ZipCar and Netflix, venture capitalist Mary Meeker of Kleiner Perkins Caufield & Byers is calling attention to what she says is a trend being embraced by the “asset-light” generation. Using these kinds of services frees up time and physical space in users’ lives, Meeker said in her annual Internet Trends report, which she presented at Stanford University. Stepping into the shoes of a 25-year-old, Meeker sketched out the life of a consumer who is more focused on services than goods. In an asset-light lifestyle, she said in her report, “it’s easier for people to get what they want when they want it by buying for access to a vast range of goods and services — such as all the movies on Netflix — rather than for ownership of a particular object or title.

Facebook voting is open; majority voting to keep existing proposals

The latest Facebook privacy policy changes are up for a vote Dec 4, including whether or not to continue to allow Facebook users to vote on new proposals. The social network announced proposed changes to its Statement of Rights and Responsibilities and its data use policy late last month.

In an explanation of the changes, Facebook said that it would like to change how it shares anonymous user information with its affiliates. Part of the reason for this change, the company explained, is to deal with its recent acquisition of the photo-sharing site, Instagram. “This provision covers Instagram and allows us to store Instagram’s server logs and administrative records in a way that is more efficient than maintaining totally separate storage systems,” according to a company blog post. “We’ve added additional language to this proposal to clarify that the sharing of information among our affiliates is and will be done in compliance with all applicable laws, and where additional consent of our users is required, we will obtain it.” Other changes include adding language to clarify the difference between privacy settings and timeline visibility settings and updating the advertising policies to make it clear that user posts can be used in ads for political or religious views.

Facebook 'Sponsored Stories' settlement wins judge's approval

A federal judge gave preliminary approval to a negotiated settlement of a class-action lawsuit over Facebook's use of its members' names and photos in online advertising, while a public interest lawyer vowed to continue pressing objections that the deal fails to protect minors.

Under the settlement, Facebook would set aside $20 million to provide a cash payment of up to $10 each to Facebook users who objected to their names being used in so-called "Sponsored Stories" advertisements. Facebook also agreed to create new user controls that will let people opt out of the program. US District Judge Richard Seeborg ruled that the settlement meets the requirements for preliminary approval, adding in a written order that it "has no obvious deficiencies" and "appears to be the product of serious" negotiations between lawyers for Facebook and a group of users who filed suit against the ad program. Both sides told the judge last month they felt the agreement was a fair settlement. But attorneys for the nonprofit Center for Public Interest Law had argued that Facebook should be required to get affirmative consent from parents before using the name or photo of any Facebook user who is under 18. Center attorney Robert Fellmeth said Monday that he will file a further objection to the settlement and vowed to take the case to appellate court if Judge Seeborg grants final approval.

Sinclair Broadcast closes on TV station deals

Sinclair Broadcast Group said that it closed on a number of deals to acquire and sell television stations nationwide.

The roughly $459.7 million in acquisitions adds two new markets for the company and additional stations in four markets where Sinclair already has a presence. Sinclair purchased seven stations from Newport Television. These include the following: WKRC in Cincinnati, Ohio; WOAI in San Antonio, Texas; WHP in Harrisburg, Pennsylvania; WPMI and WJTC in Mobile, Alabama; KSAS in Wichita, Kansas, and WHAM in Rochester, New York. The company also acquired Newport's rights under the local marketing agreements with WLYH in Harrisburg, Pennsylvania, and KMTW in Wichita, Kansas, as well as options to acquire the license assets. Sinclair also acquired WTTA in Tampa, Florida, which was previously operated by Sinclair as part of a local marketing agreement. It also purchased KBTV in Beaumont, Texas, which was previously owned by Nexstar Broadcasting. Sinclair also said that it closed on deals to sell its assets to Deerfield Media Inc. at KMYS in San Antonio and WSTR in Cincinnati, WPMI and WJTC in the Mobile market and KBTV in Beaumont. Sinclair will provide sales and other non-programming services to each of these five stations under shared services and joint sales agreements.

Free Press Takes Aim at Lake's Defense of Ownership Change

Free Press policy director Matt Wood took issue with Federal Communications Commission Media Bureau Chief Bill Lake's defense of his chairman's media ownership item.

"[B]ased on what we do know, it is flat-out wrong to suggest that the top four ranking exemption would prevent ownership of a top TV station and a major newspaper in the same market," Wood said. Lake had said that suggestions the item would make it easier to own a top TV station and a major newspaper were off base. "Reports that the order would make it easier to own a top TV station and a major newspaper in a market are wrong," he said. "In fact, the order would strengthen the current rule by creating an express presumption against a waiver of the cross-ownership ban to allow such a combination." Wood said the FCC may be trying to put a damper on News Corp. buying the L.A. Times or Chicago Tribune, but even that "misses the mark," he said, since the Fox stations in L.A. and Chicago often are not in the top four in their markets due to the strength of the Univision stations there. "So, [News Corp. chairman] Rupert Murdoch could still target those flagship newspapers thanks to the rule change this chairman is proposing," he said.

"As for claims that the proposal is stronger than the current rule," said Wood, "what we have currently is a ban on newspaper/broadcast cross-ownership. We believe the Genachowski proposal for the top 20 markets is the same as the Kevin Martin proposal, which was thrown out by the court and rejected by Congress. All that the new proposal strengthens is the likelihood for increased media consolidation."

MPAA Study Gauges Economic Impact of NY Tax Credits

The Motion Picture Association of America released a study of the New York State Film Production tax credit and concluded that it generated $6.9 billion in economic spending and supported 28,900 jobs across all industries. The tax credit has been in effect since November 2004, and the MPAA study found that since then, spending in the state by producers has grown from $600 million in 2004 to $1.5 billion in 2001, up 155%.

California to app developers: get privacy policies or risk $2500-per-download fines

They had a month—and now it's over. Any California mobile-app developers who don't have a privacy policy obviously available to consumers need to get one and fast. If they don't, they could be facing potentially massive fines: up to $2,500 per app download.

On October 30, California Attorney General Kamala Harris started notifying dozens of mobile-app developers that they weren't in compliance with a state law that requires all "commercial online services" that gather personal information to have a clearly displayed privacy policy. State lawyers are going to send out a wave of "up to 100" letters warning the developers to get in shape or face those fines.

Nurses using smartphones to fill IT gaps

More than two-thirds of hospitals surveyed for a new study reported that their nurses use their personal smartphones while on the job for personal and clinical communications. Still, IT support for those devices is lacking.

The report, from Spyglass Consulting Group, showed 69 percent of hospitals indicating that their nurses use their personal mobile devices. They're often used to fill in communication gaps with the technology provided by hospital IT departments – which some nurses find difficult to use and complain has limited functionality, researchers found.

According to Spyglass' "Point of Care Computing for Nursing" report:

  • Nurses aren't using tablet computers. Ninety-six percent of hospitals interviewed believe that first-generation tablets weren't a good fit for bedside nursing. Specifically, it pointed to the iPad, which was hindered by issues related to durability, infection control, limited data entry and lack of native applications.
  • Wireless network problems persist. Twenty-five percent of care providers interviewed were dissatisfied with the quality and reliability of the wireless network within their facilities, the report found, with researchers finding that hospital IT must provide a more reliable and scalable wireless infrastructure to support an increasing number of wireless users, devices and applications required at point of care.