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Will Mike McCurry be called as a witness for consumers in their class action lawsuit against Comcast for blocking and degrading its broadband customers’ access to legal Internet content downloaded via BitTorrent?

Here’s why I ask: in response to my earlier Huffington and SaveTheInternet blog post, Does Big Media’s One-Two Punch Knock Out the Internet?, “Hands Off the Internet,” the mega-bucks anti-Net Neutrality lobbying group co-chaired by McCurry and funded by Verizon, AT&T, etc., writes:

Jonathan Rintels writes this week at SaveTheInternet that Net Neutrality is “a requirement that broadband Internet consumers be permitted to access the lawful content of their choice.” We agree. But if that’s the definition, then this Net Neutrality fight is over since consumers already have that right.

But Comcast was caught red-handed blocking and degrading ALL content using the BitTorrent service, including a file containing the very legal, public domain, un-pirated King James Bible, as well as legit un-pirated legal video from Big Media stalwarts Viacom, Fox, Warners, and others.

It’s not very comforting that McCurry’s “Hands Off the Internet” now claims that consumers already have the right to access the lawful content of their choice over the broadband Internet, so that additional government consumer protection is not needed, when Comcast’s actions so obviously demonstrate the very opposite.

What Comcast did to BitTorrent proves that without further government action to mandate Net Neutrality, consumers are at the mercy of the broadband ISPs and do not have the right to access the lawful content of their choice over the broadband Internet.

So, if McCurry is called to testify on behalf of consumers’ rights in their class action against Comcast, would he be what lawyers call a “hostile witness?”

One of SavetheInternet.com’s very own, Free Press Policy Director Ben Scott, is profiled in Friday’s Washington Post.

Check it out: Net Neutrality’s Quiet Crusader

What a surprise to open today’s Wall Street Journal (well, click on it anyway) and see that Comcast and BitTorrent are suddenly BFF.

Apparently, all Comcast’s blocking, lying, blocking, denying, blocking, seat-filling, blocking, snubbing its nose at the FCC, and more blocking was just a big misunderstanding.

According to the companies’ joint press release: “Comcast Corporation and BitTorrent, Inc. announced today that they will undertake a collaborative effort with one another and with the broader Internet and ISP community to more effectively address issues associated with rich media content and network capacity management.”

Oh, and did they mention? “Both BitTorrent and Comcast expressed the view that these technical issues can be worked out through private business discussions without the need for government intervention.”

Not to look a gift horse in the mouth, but there still might be a few loose ends.

Here’s Marvin Ammori, general counsel of Free Press, who wrote the complaint that sparked the FCC investigation:

This agreement does nothing to protect the many other peer-to-peer companies from blocking, nor does it protect future innovative applications and services. Finally, it does nothing to prevent other phone and cable companies from blocking. Innovators should not have to negotiate side deals with phone and cable companies to operate without discrimination. The Internet has always been a level playing field, and we need to keep it that way.

And he’s far from alone in questioning the Comcast-BitTorrent love affair. Here’s Nicholas Reville of the Participatory Culture Foundation, whose Miro Internet TV application is one of the fastest-growing BitTorrent clients in the world:

Comcast is taking a page right out of the auto industry playbook: Car companies deny the importance of global warming while using announcements of future technology to block meaningful environmental protections. Comcast can see that public demands for Net Neutrality protections are growing — this announcement is a transparent attempt to distract from that debate. The announcement from Comcast and BitTorrent Inc has absolutely nothing to do with the need for Net Neutrality protections, and BitTorrent Inc certainly does not speak for other torrent technology companies.

And even FCC Chairman Kevin Martin seems skeptical of the new P2Peace agreement:

I hope that the negotiations to which Comcast commits today will result in a solution that preserves consumers’ ability to access any lawful Internet content and applications of their choice. That ability is fundamental to preserving the open marketplace and innovation that characterizes the Internet.

I am concerned, though, that Comcast has not made clear when they will stop this discriminatory practice. It appears this practice will continue throughout the country until the end of the year and in some markets, even longer. While it may take time to implement its preferred new traffic management technique, it is not at all obvious why Comcast couldn’t stop its current practice of arbitrarily blocking its broadband customers from using certain applications. Comcast should provide its broadband customers as well as the Commission with a commitment of a date certain by when it will stop this practice.

The FCC is holding a hearing at Stanford on April 17. Be sure to get there early!

So much for a cheaper, faster and more open Internet?

With news that AT&T and Verizon have just won the most significant chunks of available wireless spectrum, Americans face a future of more of the same: slower Internet speeds for prices that are far higher than what many people pay in Europe and Asia.

Photo: futureofthebook.org

And without action to restore Net Neutrality protections, the Web we get may be blinkered by phone and cable companies’ ability to restrict the content and applications we may want to use.

Earlier this year, Verizon and AT&T plunked down a combined $16.3 billion for the largest blocks of licenses to use the public spectrum up for sale on the “700 band.”

When Congress authorized this auction, their stated intention was to pry open our cell phone and broadband markets to consumer choice and new competition. But having Verizon and AT&T control the most significant chunks of the spectrum — including the so-called national C Block — means more of the same for Internet users.

At the moment, U.S. Internet users face a broadband duopoly where nearly 99 percent of all residential connections are provided by incumbent cable or phone companies. The wireless spectrum that went up for bid represented a new way to get high-speed Internet services to millions of Americans.

And it couldn’t come at a more crucial time. The cost of broadband in other countries continues to drop dramatically while speeds have increased. But U.S. consumers still pay more — 10 to 25 times more on a price per megabit basis than broadband users in Japan — and get less.

Verizon and AT&T are already among the most dominant providers of “wired” broadband access in the U.S. Their victories over the bulk of 700 MHz licenses leave slim prospects for genuine Internet competition via a wireless “third pipe.”

The Mobile Web on Hold

The popularity of the iPhone gave us a limited glimpse of the democratic potential of a mobile Internet. Imagine a time when people are able to connect to the high-speed Internet wherever they are and without any restrictions to the content they chose to pull off and push onto the Web.

The technology is already available — and so are the airwaves that could connect people on the go. But the giant incumbents would rather erect more toll booths and roadblocks than let us have a truly open Internet in our pockets. Sadly, our bureaucrats and elected officials seem content to let them have their way.

With the auction news, we just lost an opportunity to take the mobile Web to the next level and do something really innovative with our last, best spectrum.

Verizon’s stance against Net Neutrality — combined with its censoring of cell phone text messages “for any reason or no reason” — means the newly won C Block will likely not become the haven for free speech and openness that many had hoped to see.

And don’t expect either Verizon or AT&T to do anything in the wireless space that threatens their status quo of control over the wired broadband market. Why would they build cheaper and more open mobile networks that could cannibalize their legacy land-line businesses?

What’s Next

In response to public pressure, the Federal Communications Commission will require Verizon to allow any device or software application on its network.

This is a positive first step toward new wireless innovation and openness. And the billions brought into the Treasury by this auction – double congressional estimates — prove wrong the industry Cassandras and shills who claimed that open spectrum protections would dampen demand, drive down the price and scare away bidders.

But Verizon and AT&T likely paid so much for this spectrum for other reasons. They didn’t do so to bring to the market new and open innovations at low prices; they did it to protect their market power from a new ideas and competitive threats.

To keep pressure on the incumbents we need to continue to press for openness and innovation — not just via this new spectrum but over all of our wireless networks.

Last year, the Internet phone company Skype filed a petition at the FCC today asking that the agency ensure that any users of mobile devices has the freedom to communicate over all wireless networks.

This petition has important ramifications for all of us who want to carry the Internet in our pockets via hand-held devices that connect us to broadband in the same way we do via our home computers — without the interference of wireless gatekeepers who can unilaterally determine what devices and applications can function on available wireless networks.

This is a revolutionary idea. But without public and political pressure, I expect very little change to the closed and predatory approach taken by the likes of Verizon and AT&T.

Moreover, these deep-pocketed incumbents will always win access to our public airwaves under these sorts of auctions.

We need to rethink the ways we dole out licenses in ways that will allow upstarts and innovators to enter the marketplace and break up the slow-moving broadband cartel. It’s time we unlocked our spectrum so users can enjoy the future of the Internet today.

Last week saw Big Media deliver a powerful one-two combination of punches that may knock out today’s wide open Internet. First, in a speech delivered by Motion Picture Association of America President Dan Glickman, the nation’s media conglomerates vowed to fight increasingly vocal calls from policymakers and the public for “network neutrality” — a requirement that broadband Internet consumers be permitted to access the lawful content of their choice.

Guest post from Jonathan Rintels of Center for Creative Voices in Media

That’s hardly a revolutionary concept, unless you’re a broadband gatekeeper like Comcast that makes its customers’ choices for them by discriminating against some websites and favoring others.

To justify allying with Comcast, ATT, and their ilk in a mega-million dollar lobbying campaign to beat back government action that might prevent such anti-competitive, anti-consumer discrimination, the media congloms cited the need to combat piracy of their valuable content over broadband networks.

But as much as we also support fighting piracy, the MPAA’s invoking that fight here is a diversionary smoke screen for what’s really going on. The existing FCC policy principles that call for network neutrality, as well as every proposal to turn those principles into enforceable rules, speak to ensuring that broadband providers allow consumers “to access the lawful Internet content of their choice.”

By definition, pirated content is not “lawful content.” Big Media’s claim that Net Neutrality rules will prevent it from combating piracy goes way too far, as evidenced by Comcast’s recent blocking and slowing of its customers’ access to content distributed by BitTorrent. In kneecapping BitTorrent, Comcast didn’t just block pirated content, but all BitTorrent content, including legitimate un-pirated content such as a file containing the text of the King James Bible, and video that BitTorrent was distributing on behalf of its clients Fox, Time Warner, and Viacom - all card-carrying members of the MPAA!

Now consider the second powerful blow Big Media leveled against the open Internet last week. On Wednesday, Hulu.com went “live” after months in beta, streaming video of film and television produced by most of the media congloms that make up the MPAA.

[BTW, as Nikki Finke asked, how is it that this NBC-Universal and News Corp. (FOX) “joint venture” to distribute via Internet content owned by these companies, plus that of Sony, Warners, MGM-UA, and others, doesn’t violate antitrust laws? After all, not even the Bush administration’s “anything goes” antitrust regulators would allow these same alleged competitors to create a “joint venture” to distribute their content via movie theaters or a Dish Network-type satellite system.]

Allowing Comcast, ATT, and other broadband gatekeepers to discriminate against video content delivered by the BitTorrents of the Internet world vastly strengthens Hulu’s competitive position as the leading and “safe” web distribution method for video.

And can there be any doubt that as a condition of Big Media’s allying with the broadband providers to fight net neutrality that there is a clear understanding between them that Hulu will never be discriminated against in the way BitTorrent was? Look for all the Big Media companies currently using BitTorrent and other distribution over the Internet to sign up soon with Hulu.

Following that, to ensure they are not discriminated against by broadband gatekeepers and placed at a competitive disadvantage, look for many more video content creators to place their content on Hulu. In a world without Net Neutrality, linking up with Big Media’s Hulu — and its insulation from Comcast-style discrimination and degrading — will be a matter of self-preservation.

Kudos to the Independent Film and Television Alliance (IFTA) for immediately calling out the MPAA and exposing its anti-competitive collusion. Writes the IFTA:

That openness [of the Internet] is threatened by the power of a small number of broadband providers to discriminate unilaterally against some categories of users or types of traffic or to accord preferential treatment to certain content providers over others, all under the ambiguous claim of “network management.” While these providers may have some legitimate issues related to the technical management of their networks, there have already been cases of different treatment of users and it is clear that there must be transparency, equal treatment and an avenue of redress when the providers’ private decisions trespass fair rights of others and the public interest. Thus, the issue is not whether government should regulate the Internet, but whether there will be effective oversight to prevent a handful of corporate giants from imposing their own version of private regulation to the public’s detriment.

Last week’s opening of Hulu and the MPAA’s vehement denunciation of net neutrality are intimately related, a double-barreled shot aimed at the heart of the open Internet. With its back-to-back denunciation of Net Neutrality and its launch of Hulu as its anointed site for streaming TV, films, and video, Big Media’s goal is nothing less than to turn today’s wide open Internet into a closed system more akin to cable television.

The likely result: as we’ve documented in cable, independent and diverse voices and their content will be inexorably marginalized or silenced.

To prevent this Big Media alliance with Big Cable/Telco from cornering and controlling the Internet, it is time for the government to implement reasonable network neutrality oversight that protects consumers and content creators, and preserves the open Internet we enjoy today.

Internet phenom OK Go swept through Washington earlier this week urging their fans and Congress to support Net Neutrality — the longstanding principle that protects our ability to go where we want, watch what we like and connect to whomever we choose on the Internet.

The band’s success is a testament to an open Internet. OK Go was propelled to national fame via the popularity of their YouTube videos. One, a treadmill dance along to the song “Here It Goes Again,” has been viewed more than 31 million times.

“If people wonder whether the music industry will benefit from Net Neutrality they can look no further than us,” said OK Go’s lead singer and guitarist Damian Kulash in testimony before the House Judiciary Committee on Tuesday.

“There really is some consensus here that Net Neutrality is good for music and good for musicians… I’m here to ask you today to preserve Net Neutrality and the openness of the Internet. I believe it’s critical to the future of music.”

OK Act

After the hearing Kulash and OK Go keyboardist Andy Ross did a brief video interview and called for support of the Internet Freedom Preservation Act (HR 5353). “Call your Congress person, write to him … and let him know how important it is,” Kulash said.

More than 1.6 million Americans have already taken action on behalf of an open Internet. Still, Congress has yet to pass a law to protect this fundamental freedom — at a time when our Internet rights are under attack from politically powerful phone and cable companies.

OK Go met with Senate and House members to discuss the importance of taking action on Net Neutrality to help foster musical creativity and independence. While sitting down with Rep Ed Markey (D-Mass), co-sponsor of the bipartisan House bill, Kulash and Ross spoke more about their YouTube success.

“This video certainly would not have gotten out if it weren’t for Net Neutrality,” Kulash Said. “We’re a hard working band. We’ve played over a thousand shows in America over the last 10 years. The [video] really was the turning point for our visibility. If we hadn’t had this opportunity, we wouldn’t be here today. There really is some consensus that Net Neutrality is what the music world needs for it to thrive and continue to innovate.”

“We really appreciate the work that you have done on the issue, the leadership and the bill that you’ve sponsored in the House,” Ross told Markey. “We hope lots of people get behind it and our fans support it.”

Rocking the Net

The band came to Washington to support Rock the Net, a coalition of more than 800 bands that have joined together to support Net Neutrality. The Coalition is a project of the Future of Music Coalition – a SavetheInternet.com member — which has been active organizing musicians and independent labels in support of an open Internet and against corporate interference.

Future of Music’s Jenny Toomey and Michael Bracy have written that for musicians Net Neutrality means “they should have the unfettered ability to make their work available to potential fans without undue interference from corporate gatekeepers.”

At Tuesday’s House hearing, Committee Chairman John Conyers (D-Mich.) said: “Congress should act to preserve Net Neutrality. I am concerned that if Congress stands by and does nothing, we will soon find ourselves living in a world where those who pay can play, but those who don’t are simply out of luck.”

The bipartisan Internet Freedom Preservation Act is major first step in a forward-thinking communications policy.

Without being strongly regulatory, it modernizes existing media policy to ensure that Net Neutrality protections apply to new broadband services, just as they did to dial-up. It ensures that economic innovation, democratic participation and free speech will continue to flourish across the Internet.

“The Internet has always been a place where innovation and new ideas can thrive, Kulash said while on the Hill. “It’s only recently that it’s become legal for the big telecommunications companies to try to decide what we can or can’t do on the Internet. I think it’s important to make sure that we enshrine the level playing field in law so that the Internet will always be the great source of Internet and openness that it has been.”

In no uncertain terms, John C. Dvorak takes apart the latest broadside against Net Neutrality by the modern-day red baiters at the Wall Street Journal’s editorial board.

You would think Journal editors know public policy well enough to pull their writers’ frequent rants against it into line with the facts.

Net Neutrality’s No. 1 Supporter?

Not so.

“I’m suspicious of op-eds talking up the horrors of Net Neutrality, especially when the facts are never made clear,” Dvorak writes. “Instead, we have an out-and-out attempt to befuddle the public and confuse the reader.”

The piece in question, by Andy Kessler, highlights the shady logic of the anti–Net Neutrality faction.

Kessler writes in the Journal: “With Net Neutrality, there will be no new competition and no incentives for build-outs. Bandwidth speeds will stagnate, and new services will wither from bandwidth starvation.”

Dvorak responds:

This is funny, since until just a while ago, we had been operating under a de facto Net Neutrality.

Using Kessler’s logic, we should still be using 300-baud modems since there’s no incentive to do anything different. How does he — or anyone else, for that matter — explain the progress from 300-baud modems to fiber to the home during this period of genuine net neutrality? It’s only recently that the phone and cable companies have decided to futz with bandwidth, with packet sniffing, bandwidth shaping and ceiling limitations.

… Net Neutrality is nothing new. It’s the way it has always been. How does codifying it into a law change anything, except to foil the scheming of the phone and cable companies that have — during the era of net neutrality and genuine deregulation — competed very well?

It wasn’t until 2005 that Net Neutrality protections were stripped from the law. Our efforts here at SavetheInternet.com and elsewhere are simply to restore them — especially at a time when companies like Comcast, AT&T and Verizon are making moves to block, filter and censor digital communications.

Lacking any real arguments the anti-neutrality folks resort to tired and overly simple scare tactics.

At the Journal, Kessler plays the red card (a tactic familiar to other telco shills) when he writes, “the Internet will only expand based on competitive principles, not socialist diktat.”

Dvorak again responds:

I love the way these guys throw in the ugly term “socialist” when they want to trigger a 1950’s-style knee-jerk reaction from the American public. And in case you didn’t notice, he also throws in a Communist term “diktat” so you dummies will be totally repulsed and imagine Stalin lurking.

…We have no socialist diktat going on, and we are falling behind other countries like crazy in broadband speeds and connectivity. Countries that mandated universal high-speed connectivity (aka socialist diktat) have all zoomed ahead of us.

We are in 16th or 17th place and falling fast. This tells me that we are doing something wrong. We’re kowtowing to the wishes of the big telcos — mega corporations that have no real interest in progress, just profits.

Indeed. But don’t just listen to us. Read Kessler vs. Dvorak and decide for yourself: Support Net Neutrality or follow phone and cable logic?

The choice is clear.

= = = =
UPDATE: Please also read John Quarterman’s dis-assembly of Kessler.

If you thought Comcast looked ridiculous trying to explain why they had to hire people to applaud for them at last week’s hearing in Cambridge, you should see the things its lawyers are telling the FCC.

When it’s not misconstruing the claims of their critics, Comcast is peddling technical-sounding nonsense that’s mostly irrelevant or invalid. We’ll save you the aggravation of actually reading it. Here’s the bottom line: Comcast is blocking the Internet and claiming the FCC can’t do anything about it.

On Thursday — while Comcast was trying to contain a PR disaster — Free Press and members of the SavetheInternet.com Coalition filed “reply comments” with the FCC about blocking by Comcast and other Internet service providers.

You can read the full comments here.

Here’s a summary of the arguments (thanks to Marvin Ammori and Adam Lynn):

• We clarify that we do not oppose all network management. Many methods exist that do not violate the principles of Net Neutrality — traffic control doesn’t have to include discriminatory targeting.
• We point out that Comcast has completely reversed its position on delaying Internet traffic from stating its opposition to the practice in 2006 to supporting and implementing the practice in 2008.

Here’s the congressional testimony of Comcast Executive Vice President David L. Cohen in 2006: “If Comcast were to try to deny, delay, or degrade the Internet experience that our more than nine million cable Internet customers have paid for, how can we possibly expect to keep them as customers…Any provider that does not meet the needs of users will suffer from a serious backlash from consumers and policymakers.”

Here’s what Cohen said last Monday: “Comcast may on a limited basis temporarily delay certain P2P traffic.”

• We argue that upgrading the network is the only network management option that serves consumers and our economy and also follows the mandates of Congress and the FCC. Further, we explain how these network upgrades are badly needed to catch up to our international counterparts.
• We refute claims that the “market” is providing an adequate check on Comcast or any other provider. Most communities in America have just one cable company and one phone company to choose from.
• We detail the ways that Comcast has abused its power and misled Internet customers, consumer groups and the press repeatedly about its deceptive and discriminatory network management practices.
• We reject the argument that the FCC lacks jurisdiction to deal with the issue of blocking. The FCC, the Supreme Court, the White House and many industry players have all recognized the FCC’s clear authority over this matter.

You can read it all for yourself here >>

If you’ve been following the news of Monday’s FCC hearing at Harvard on Comcast’s Internet blocking, you’ve probably heard the story of how Comcast hired people to fill up the hearing room — which left everyone else out in the cold.

You might think you know the story, but you ain’t heard nothin’ yet.

This week’s Media Minutes podcast includes more responses from the audience — both Comcast employees and the seat-fillers. And we hear from those who were shut out of the hearing.

Listen to Media Minutes >>