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Fox Steps Over the Internet Line; But There's Nothing To Be Done

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Over the weekend, Fox committed what should be considered one of the grossest violations of the open Internet committed by a U.S. company. Unfortunately, there was no one to call them on it.

Two media giants, Fox and Cablevision, are embroiled in yet another of those disputes (retransmission consent) in which the company with content (in this case Fox) wants to raise the amount of money to be paid to it by the company with the distribution network (in this case Cablevision, with 3 million or so subscribers around New York City and Philadelphia).

The two sides usually negotiate to find a settlement. If they can't agree, it gets nasty. There are no winners in this process. The losers are the customers of the cable or satellite company who through no fault of theirs, are deprived of access to the channels under discussion (for which they have paid, of course) while the big business deals are being cut.

There's an impasse in the Fox-Cablevision discussions, so Fox yanked its TV channels from Cablevision systems just as the National Football League season was entering its sixth week and the major league baseball playoffs are the league-championship series.

In this case, however, Fox went over the line. It not only pulled its TV channels, it blocked Cablevision subscribers from accessing Fox content online, from fox.com web sites or from Hulu. Even if a customer received only Internet service from Cablevision, and TV programming from another company like DirecTV or Dish, that Internet user trying to reach a Fox online was redirected to www.keepfoxon.com -- a Fox site that gives Fox's side of the negotiations and even has a couple of helpful links to Cablevision competitors like AT&T's U-verse, Verizon FiOS and DirecTV.

As Broadcasting and Cable reported, the theory behind the Internet blockage was to keep Cablevision subscribers from watching Fox content online, and thus taking away a Cablevision incentive to negotiate. Never mind that some Cablevision Internet access subscribers might want to do something else on the great big Internets. Keeping them away from Fox content was paramount.

Fox's Internet firewall on Oct. 17 lasted only a few hours before the company reversed position. Public Knowledge and Free Press protested the policy, and someone at Fox saw the error of their ways. (Cause and effect? Who knows?)

Until this spring, the 2005 Federal Communications Commission (FCC) policy statement held that Internet users had the right to access lawful content of their choice. There was no exception in that policy for customers who happened to have their Internet provider caught up in a nasty retransmission battle with a broadcaster.

Said policy statement that was struck down on April 6 by the U.S. Appeals Court, D.C. Circuit, when Comcast challenged the enforcement of the policy against the company for blocking users of the BitTorrent.

The policy statement was based on the assumption that if there were a bad actor in preventing the consumer from seeing online content, it would be an Internet Service Provider (ISP) blocking or otherwise inhibiting access to content. In this case, of course, it's the content provider that was doing the blocking. It's a moot point now, but it shouldn't matter who is keeping consumers away from the lawful content.

Chances are someone will use the "no harm, no foul" argument to say that because Fox restored access to its sites, there would be no need for any regulatory oversight. That's true if one accepts that access to the Internet is based on the whim of a private company. If one values the open Internet, however, there should be rules against that sort of thing, whether the blocking is done by the ISP or by a content provider.

Imagine a truly gigantic media conglomerate like, for example, Comcast owning NBCU. It boggles the mind to think of what leverage that megalith could bring to retransmission consent negotiations, and how it could play with access to any number of Internet sites, regardless of whether those sites provide video content that competes with, or complements, NBCU or Comcast content properties.

Yes, it would be nice if someone could step in and tell Fox that it is unacceptable to block Internet content. Unfortunately, there isn't that someone around to protect consumers. And that's truly the "harm" here, and why a referee is needed to call the "foul."

Any number of commentators from all sides of the political spectrum praise the Internet as a truly open medium, even as they differ on ways to keep it open. Leaving it to the discretion of Big Media, however, is a sure path to failure. This time Fox backtracked. Next time? Who knows? If only there were a Federal agency with jurisdiction over broadband service, or an agency that could enforce the rights of consumers online.

Oh, right, the FCC should be that agency. Unfortunately, the current leadership has not shown any inclination to protect consumers online from misbehavior by gigantic media conglomerates that view the Internet as just another property to be used as leverage. It would take an agency with jurisdiction over that type of thing to act boldly to protect consumers, and this FCC is anything but bold.

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