EDITOR’S NOTE: Earlier this week, we were invited to submit something to Ars Technica on the hot topic of the SOC waiver, addressed previously here. The following day, they followed up with a counter to our thoughts. We’re grateful for any opportunity to continue a meaningful dialogue, so we’re posting our response back.

First, I appreciate Ars giving me the opportunity to provide a guest post on the issue of Selectable Output Control.  And, like someone lost in the desert, I suppose I should just be grateful for a cup of water and take Ars’ agreement that this issue really isn’t about “hobbling” consumers’ equipment – despite what SOC opponents have been arguing for months.

But Matthew Lasar’s response now shifts the debate from hobbling existing TVs to the inevitable slippery slope: If the FCC grants a waiver for early release movies, Ars argues that next will come use of SOC for the “Big Game” (which won’t likely involve my Washington Redskins), a key episode of Mad Men (perhaps where Don divorces Betty and moves in with Peggy because she has a TV that works with SOC), and, Lord knows, it will then be used to provide exclusive showings of a film of the JFK assassination  that will prove that the Zapruder film was part of the “cover-up.”

But the truth is that there is no studio-cable-DBS cabal to deny consumers viewing opportunities; rather, we’d like to give our customers content they would not otherwise receive without our ability to use SOC.  Forgotten now is that the cable industry supported the adoption of the FCC ban on SOC as part of a compromise with the consumer electronics industry in which both industries recommended one-way Plug & Play rules to the FCC. We did so while recognizing – as did the consumer electronics industry and the FCC – that waivers would be granted upon a showing that the public interest would be served by waiving the rule, for example where the waiver proponent demonstrates that the content is a “new business model” advantageous to consumers. Therefore, the FCC must decide in each particular case whether SOC should be permitted. To me, it is crazy that the government is in this business of deciding outputs/inputs at all.  But the FCC’s role ensures there isn’t a slippery slope; the proponent of a waiver must prove each time that the proposed service is something beneficial to consumers.

Putting aside the debate over the use (or abuse) of SOC, I have a particular concern with the claim that our television services are part of some “public network” akin to the public switched telephone network and therefore subject to some special regulation which restricts our business in ways not allowed with regard to other businesses. To be sure, our video services are subject to government regulation – at the federal, state and local levels – but we aren’t like telephone companies (which built their systems with captive ratepayers and a government-guaranteed rate of return) or even radio and television broadcasters (who were given public airwaves for free, but in return had to adhere to certain “public interest” requirements).  Our industry had no government-guaranteed return or government-granted public airwaves – to the extent we used any public resources, we paid for our rights-of-way with local franchise fees. Indeed, the cable industry built analog networks, our new digital networks, our cable modem and digital phone services with private risk capital with no assured return.

If the goal is innovation to meet rapidly-changing consumer demands, the old-style public utility model is exactly the wrong way to go.

Again, I appreciate the opportunity to engage in a discussion with Ars and its readers and look forward to more in the future.

NCTA’s Executive Vice President, James Assey, will be participating tonight in an Oxford-style debate on net neutrality, presented by Tech Debate as part of Web 2.0 Expo New York.

The participants will debate the motion “A network neutrality law is necessary.“ Arguing for the motion will be Professor Tim Wu, venture capitalist Brad Burnham and Professor Nicholas Economides. Presenting the case against the motion will be James Assey, Robert Quinn (AT&T’s Senior Vice President of Federal Regulatory) and Professor Christopher Yoo.

The event will be streamed live this evening at 8:00 p.m. A podcast will be available afterwards at Tech Debate’s website.

James Assey did a bit of debating on net neutrality and other telecom topics at the Personal Democracy Forum back in July. You can read a write-up of that conversation or watch a video of the proceedings.

More than a year ago, I put up a post expressing my pleasure about how the “net neutrality” discussion had evolved over time . Specifically, I focused on the comments of Vint Cerf between 2006 and 2008, when he seemed to move from arguing that the Internet must be “open and neutral,” to saying that “the real question… is not whether [broadband networks] need to be managed, but rather how.”

My thoughts on the argument were confirmed for me by a panel at CES this past January, entitled “The Internet – How Do We Keep The Road Open.” If you read this account, you’ll note agreement among the panelists that managing networks is important, but so is transparency.

I understand that, as the FCC examines the issue of “net neutrality” (or the “Open Internet”), it isn’t just about network management, but I welcome having a more sophisticated, complex discussion.

So, imagine my dismay when two of my favorite cable shows – The Rachel Maddow Show and The Daily Show – recently took on the net neutrality issue and described it the way it was described back in 2006.

All About Blocking?

On October 23rd, Maddow said, “Telecom companies want to be able to slow down access to some parts of the Internet and to block some others. Essentially, they want the right to privilege the content that they want to privilege for their own telecom corporate purposes.” Maddow’s guest, Boing Boing editor Xeni Jardin, said that net neutrality is about everyone having equal access to all Internet content: “No cable companies, no telcom, should be able to slow that down because what you want access to is against their competitive interest.” [Watch the whole Maddow/Jardin segment here.]

The following Monday, October 26, Jon Stewart devoted a whole segment on The Daily Show to the same topic. He said, “The Internet Service Providers – your Comcast, your AT&Ts – would like net neutrality not to happen so they would have the ability to decide which content and websites get the preferential treatment.”

Let’s start right there. The charge is leveled that cable companies will slow down content that competes with their interests. FCC Chairman Julius Genachowski, in his September 21 speech at the Brookings Institute, listed reasons that he thought net neutrality regulation might be necessary. Blocking competitive content was not one of those reasons. Nor am I aware of any instance of a cable company ever doing such blocking. NCTA’s President & CEO Kyle McSlarrow has said on a number of occasions that our member companies don’t block and won’t block lawful content.

All Bits Are Not Treated Equally.

In addition, Xeni Jardin is being disingenuous and Jon Stewart (I presume) doesn’t know any better. Jardin says, “All packets are created equal.” Stewart says, “Currently everything moves through those tubes at pretty much the same rate. Like, if you’ve got a packet of information from a major corporation like Google that information gets exactly the same treatment as, say, a packet from a little startup company…”

But, in fact, all packets aren’t the same. You wouldn’t want a voice packet, a video packet, an e-mail packet or an image packet to be treated the same. TCP/IP isn’t neutral and never was. There are times when you need to prioritize different packets.  George Ou at Digital Society has done some great work explaining the difference between low-bandwidth and high-bandwidth applications. If you want a dumb pipe, with every bit treated the same, that will significantly affect telemedicine and other advanced services which may require priority treatment. If creating some method of optimized delivery was such a terrible thing, what does this say about services like Akamai, that help make content distribution more efficient, benefiting both consumers and content producers?

Stewart posed the question, “Why are all these people so opposed to this innocuous, populist legislation?” If all that was being discussed was the right of consumers to visit any website they want, or use any legal Internet service they desire, there would be no problem. NCTA has gone on the record many times that our member companies are in favor of this. When Chairman Genachowski proposed the two new principles in his Brookings speech, we applauded efforts to preserve an Open Internet. The trick is that the conversation is more about how and when networks can be managed.

Jardin proposes, “Whenever there’s a fight on the Internet, it’s always good to side with the geeks who actually built the Internet, rather than, sort of, fat-cat telcom lobbyists. You have guys like Vint Cerf… he’s coming out, saying this is a dangerous thing.”

• Point One is that Mr. Cerf has worked for Google since 2005; that company is hardly a little garage start-up, nor are they a disinterested party in telecommunications.
• Point Two is that Professor David J. Farber (the “Grandfather of the Internet”) thinks that net neutrality is not such a good thing.
• Point Three is that we agree that network management is an issue best addressed by engineers rather than policymakers. The cable industry has a lot of engineers of its own. For the past 15 years, cable companies have been able to offer high-speed Internet access thanks to the hard work of these engineers, who still have to manage these networks on a daily basis. Let’s cast our minds back to 1994 and remember that it’s those cable engineers that helped drive all the broadband we currently enjoy.  It was cable that developed the DOCSIS standard and first laid significant amounts of fiber out in the field, ahead of the phone companies.

(It’s ironic that Maddow, who is so publicly a fan of infrastructure, seems to miss this last point.)

The Challenges of Creating Neutrality Rules

As long-time telcom reporter and industry analyst Gary Kim pointed out, the need for management is exactly why net neutrality poses some difficulties:

It is very hard to define and covers a range of business discrimination issues, network management and performance practices as well as potential future services that consumers might very well want to buy, that provide value precisely because they allow users to specify which of their applications take priority when the network is congested.

Kim notes that it’s a good thing for ISPs not to discriminate against the competition, but he is concerned “whether ‘affirmative’ packet handling, as opposed to ‘negative’ packet handling, will be lawful in the future.”

Swing too far in one direction and you create broad draconian rules that stifle innovation. Swing too far the other way and you end up with vague principles that don’t let anyone know for certain what’s allowed and what isn’t.

Finally, let me observe that there is a lot of hubbub about what might happen without net neutrality. I am reminded about a recent tweet from Blogads.com Founder & CEO Henry Copeland.

RT @nickbilton What life w/out Net Neutrality will look like: http://j.mp/2UYL2H ++Umm, wait, there’s no NN law right now.

As he says, when you imagine what life might be like without net neutrality, you might want to remind yourself that we have no such regulation right now.

In a blog post last Friday afternoon, NCTA’s Kyle McSlarrow highlighted cable’s support for a waiver of the FCC’s so-called “selectable output control” rule which would encourage movie studios to provide cable subscribers with access to first-run movies much sooner than today’s often lengthy release window.

It seems that post has now garnered the attention of Ars Technica in a larger missive that puts the Motion Picture Association of America at the heart of a vast conspiracy to Take Over the Internet (or something like that).

I’d like to tackle their comments, and dive a bit more into the benefits that selectable output control brings to consumers.

It seems that Public Knowledge and Ars would like us to focus on the number of people who would be unable to view content protected by SOC.  We’re optimists, we prefer to focus on the entertainment options available to everyone else.

Let’s look again at Kyle’s iPod analogy:

When Apple introduced the “Classic” iPod with the ability to rent movies, earlier generation iPods still functioned well, played music, and (for 5G iPods) played video, but they didn’t play rentals. Apple’s release didn’t suddenly render your older version useless, but you needed to purchase the Classic to get access to the video rental library. So while your “older” device may not have all of the features of the latest model, it certainly still works as intended when you bought it and isn’t “screwed up.”

If you follow the argument made by Ars/Public Knowledge, there would have been a massive outcry against the new iPod and its rental feature.  Instead, here is what Ars itself had to say on the subject:

Apple has answered the calls of consumers and critics with a slick, friendly movie rental section. After playing with it for a week, I’m still inclined to say that it’s off to a strong start. Though other services may have a superior catalogs (for now) or integration with other living room devices, none reach iTunes’ signature ease-of-use or integration with the world’s most popular digital media players.

And what did Ars say about restrictions on the use of the new iPod?

As for why movie rentals have these specific new DRM rules applied to them, they’re clearly conditions enforced by studios interested in locking down their rental content in every way possible. A crack for iTunes DRM is a scary prospect for execs interested in protecting their content and getting paid their dues, and a movie that typically sells for $15-20 at retail getting cracked for as little as $2.99 must be even more insomnia-inducing. These were likely some of the compromises Apple had to make in order to score all the major studios, and perhaps to launch a digital rental section in the first place.

Ars clearly recognizes that protection of content played a critical role in content owners being open to providing that content via the iTunes store.  They are exactly right that such protections were likely a prerequisite for iTunes rentals launching at all.  What Ars is now arguing against, however, is exactly the same protection being afforded to exactly the same content but just on a different platform, Video-on-Demand (VOD).

Movie studios are unwilling to make blockbuster movies available  prior to DVD release  if they don’t have some assurance that the movie won’t be copied and widely distributed.

That fact, however, does not “break” all the TVs now being viewed any more than the iTunes rentals “broke” previous versions of the iPod.

I had a 5G iPod when the Classic came out.  I now have a Classic iPod (I like to watch rental movies on it when I travel).  My kids now have a 5G iPod.  It still plays purchased movies. It still plays music. It still plays games.  It’s not broken at all.  In fact, since Apple makes many of the movies in its library available for sale before they’re available for rent, that old 5G can actually play more content than my Classic.

The world of selectable output control works exactly the same way.  That TV in your den that’s connected with analog cables can still view most of the vast array of “on demand” content.  It can still play all the TV programs you’re used to.  It can still be connected to your DVD player, your TiVo, and even your PC.  What it won’t be able to do is play certain new content offerings without an HDMI connection.

Does that sound broken to you?

Over the last decade, we’ve witnessed an amazing transformation in the video marketplace as the ways in which consumers watch video programming has exploded.  Despite the multitude of new options – whether it’s a choice of several different providers or technology like DVRs, VOD, broadband video, mobile video, etc. – the media industry continues to explore new ways to bring consumers more content when and where they want it.

Delivering the latest movies to consumers’ homes – far earlier than they can watch those movies at home today – should and can be the next big idea.  Why shouldn’t you be able to watch the latest movie in the comfort of your own living room (and on your own schedule) months before you can now buy it on DVD or watch it through conventional video-on-demand?  We think you should be able to and are working with the movie studios to make it happen.

Consumers, content companies and distributors all benefit if more content is out in the marketplace sooner.  Imagine, for example, what this would mean to those who can’t even get to the movie theater for health or other reasons.

However, delivering this high-value content has to be done properly or the system that produces content won’t be able to financially survive.  High-quality content (most movie productions take years from start to finish) is expensive to create and content owners rightly need adequate protection against indiscriminate and unauthorized distribution of their content to take this next step. While content producers already make some less expensive independent movies available to cable at the same time they are in theaters, it’s clear that major studios will not release their blockbuster films early unless we can guarantee proper protection. (To a certain extent, mid-level budget movies benefit even more from being protected from piracy.)

Some people think copyright protection doesn’t need to be taken seriously. For example, note this comment: “Piracy is like a cockroach – you can’t stop it.” If you think it’s not a problem, forget the street vendors selling bootleg DVDs – go to your favorite search engine and type in the name of a movie, plus the word “torrent.”

Getting Content Out Earlier Through SOC

The FCC has, as it happens, set up a process for approving the use of something called Selectable Output Control (SOC) that can provide content owners with the confidence they need to distribute their high-value content sooner.  In 2008, the Motion Picture Association of America (MPAA) asked the FCC to support SOC for this purpose.  NCTA met with Commission officials back in September to express our support for the waiver and filed this letter afterwards.

Somewhat surprisingly, the SOC waiver has run into opposition by some who are concerned that it would limit choice for consumers.

For example, the group Public Knowledge (PK) has been very active on this issue. See their letters here, here, here, and here, as well as this alert urging consumers to “Tell the FCC to Say ‘No’ to the Cable Kill Switch.”

PK includes a link to this video with Harold Feld, in which he argues that SOC “breaks 25 million television sets,” and causes your personal devices – such as your TiVo or Slingbox – to no longer function.

In the video, Feld says that movie studios, as well as cable operators and DBS providers, would “like to be able to remotely turn off your Slingbox, turn off your DVR, turn off anything that’s coming out of the TV set that we don’t directly control.”

As an additional example, see this Ars Technica post, which says that the “output changes [MPAA] wants could, in fact, hobble some home video systems.”

SOC Does Not Break Your TV

We addressed the charge that SOC “breaks” devices when we filed Reply Comments last summer on the waiver. We noted that the Consumer Electronics Association and its affiliated group the Home Recording Rights Coalition made the argument that such a move would “put at risk… very ‘early adopters’” and that it was important to maintain “the value of devices in which consumers invested earliest and most heavily.”

We noted that existing devices are not harmed.  If you have a TV set that doesn’t support SOC, then you wouldn’t be able to order these new movies releases anyway. But nothing prevents your TV from doing all the things it can do now.

The situation is analogous to any early adopter who acquires new equipment which, with the passage of time, cannot access as easily or at all new services coming down the road. From computers to cell phones to televisions, that has been and likely always will be the case. The important point is that nothing is being taken away from those consumers, and other consumers with more capable devices will have more viewing options. Indeed, there can be no public interest justification for denying new choices to a majority of consumers simply because a small minority cannot avail themselves of those choices.

Both Public Knowledge and Ars Technica have argued that the MPAA’s bid for selectable output control could force some consumers to buy new home theater equipment. But that isn’t even close to accurate – both MPAA and NCTA have demonstrated that an SOC waiver simply means that a consumer’s current gear without protected connectors will work exactly the same way it does today, and newer generation devices with protected connectors (including devices in homes today) will be able to take advantage of the earlier release of movies under an SOC waiver.

When Apple introduced the “Classic” iPod with the ability to rent movies, earlier generation iPods still functioned well, played music, and (for 5G iPods) played video, but they didn’t play rentals. Apple’s release didn’t suddenly render your older version useless, but you needed to purchase the Classic to get access to the video rental library. So while your “older” device may not have all of the features of the latest model, it certainly still works as intended when you bought it and isn’t “screwed up.”

Technology changes all the time.  And the pace and intensity of innovation across the board in technology, communications networks, and consumer electronics is undoubtedly going to raise these types of issues with greater frequency.  I don’t pretend that these issues are necessarily easy.  But it does strike me that in order to continue providing consumers more services, more choices and the opportunity to do things they currently can’t do today . . . we shouldn’t let the perfect be the enemy of the good.

Not all consumers are going to be first adopters; not all technology changes are going to instantly, seamlessly and magically work on every device currently in the marketplace.  Taking practical steps, like approving the SOC waiver, that move us down the path of greater consumer choice is a far better policy choice than standing pat, or pretending that creators of content are going to accept unnecessary risks with their investment.