The EAS is actually a national system that also provides communications capabilities to the President to address the American public during a national emergency. It involves the resources of broadcasters, cable television operators, satellite radio providers, and direct broadcast satellite (DBS) providers.

On November 9, at 2:00 p.m. (EST), the FCC and FEMA have scheduled the first-ever test of the Presidential Emergency Action Notification (EAN) of the EAS. The test will last about 30 seconds.  During the test, cable customers will see a special EAS channel regardless of the cable channel they are watching (You can see an example of an alert here.).

As the EAS test runs, the audio feed will advise viewers that it is only a test. The onscreen text will simply state:  “This is an Emergency Action Notification,” and in some cases, “for the United States” or “for the District of Columbia,” depending on the equipment.

The EAN message itself is set by the federal government; cable systems are required to pass through the government’s message to their viewers.

The cable industry is taking action to assist the government in educating consumers about the test.  Our member companies are airing public service announcements from the FCC to raise viewer awareness (Copies of these PSAs are posted on NCTA’s website).  Cable systems are also using invoice messages to alert consumers to the upcoming test.  And cable operators and programmers are linking to websites with more government information about the test, such as this one from the FCC.

Our message is simple:  This is just a test of the system, and no action is required.

NCTA continues to inform our member companies about test developments and has briefed other groups, such as the Cable Center Customer Care Committee and state and regional cable associations. Cable programmers also have pledged support in educating consumers.

An end-to-end nationwide test of the system is critical to assess the reliability and effectiveness of the EAS as a public alert mechanism. Cable will be expending every effort to help ensure the test is a success.

UPDATE: You might also want to read this post at the Time Warner Cable Untangled blog.

The Chairman, the commissioners and the FCC staff all deserve a great deal of credit for bringing this item to completion.  Universal service and intercarrier compensation are some of the most difficult, complex issues faced by the Commission and adopting an item of this magnitude is a significant accomplishment.  That we have concerns about some of the decisions made by the Commission in this order in no way diminishes our respect for its efforts and accomplishments.

On the positive side, we believe the item establishes a reasonable and workable process for transitioning to a more rational intercarrier compensation regime.  The Commission acknowledged over a decade ago that the current intercarrier compensation rules were irrational and created an environment ripe for regulatory arbitrage and disputes.  We are optimistic that the rules adopted today will help put an end to the arbitrage and the disputes.  We are particularly pleased that the item commits to placing carriers of VoIP traffic on equal footing with legacy telephone companies with respect to intercarrier compensation.

We are less enthusiastic about the universal service components of the order, which are far less ambitious than was recommended in the National Broadband Plan and the Notice of Proposed Rulemaking.  At a high level, the Commission’s “new” approach to high-cost support through the Connect America Fund is to give the incumbent phone companies preferred or exclusive access to virtually all the money.  Cable operators will be able to receive broadband support only in areas where an incumbent price cap phone company chooses not to exercise its right of first refusal (or “state level commitment” as it is now called).  This overwhelming preference for incumbent phone companies violates the universal service requirement that support be provided on a competitively neutral basis, and is a step backward from the current regime, which gave competitors an opportunity to receive support in any area where they were willing to meet the Commission’s requirements.

The degree to which the Commission has granted special treatment to large price cap phone companies is particularly disheartening.  AT&T and Verizon are the two largest telecommunications companies in America and the so-called “mid-size” price cap companies (CenturyLink, Frontier, Windstream) pay out the highest dividends among S&P 500 companies.   Given the financial strength and size of these companies, it is unreasonable and unnecessary for the Commission to give them: (1) preferential access to $1.8 billion annually in high-cost support in 100 percent of their territory through a right of first refusal; (2) recovery of as much as 90-100 percent of their access charge losses from an Access Replacement Mechanism that will increase consumers’ phone bills; and (3) exclusive access to $300 million in new high-cost support, in addition to 100 percent of their legacy support (which is phased out for competitors) before the new Connect America Fund begins.  We look forward to reading the order to see if there is a reasonable explanation for this blatant favoritism.

Although the lack of competitive neutrality is a major concern, there are a number of bright spots in the USF reforms adopted.  The Commission proposes to eliminate support in some (but not all) areas where cable operators offer broadband without a subsidy, a policy that NCTA has advocated for many years.  The Commission also adopted a budget for the high-cost program for the first time, another long-standing NCTA policy recommendation.

Consequently, while the item is far from perfect, NCTA greatly appreciates the efforts the Commission has made to begin the process of modernizing the USF regime.

To be more technical about it, as industry observer Leslie Ellis put it:

…we’re moving to a world where stuff can be done without set-top boxes, at least as they exist in hardware. Now, it’s set-tops; next, it’s gateways that bridge between set-tops and cable modems, and ultimately, it’s video delivered completely over IP, from the network, to the end devices.

I bring this up because NCTA’s President and CEO Michael Powell sent a letter last week to FCC Chairman Julius Genachowski about these new developments and what they mean for our ability to achieve a fully competitive and innovative retail video device marketplace.

This issue has been discussed for some time, but 2011 has brought a host of services entering the marketplace.  See some of our previous posts:

• Consumers Reaping Benefits of Smart Video Device Revolution
• Connected TV… Here to Stay

All of that was before The Cable Show. As Michael Powell’s letter pointed out, the various demos and panels from our event help show how the cable industry “is providing American consumers with powerful, personal, and portable services and networks that support unprecedented mobility of content to multiple devices both in and out of the home.”

The Cable Show demonstrated that Congress’s and the Commission’s video device goals are already being achieved in the marketplace.  …there is broad-based momentum in the cable industry to deliver cable services to consumers on any device.

Today, consumers have more sources of video programming and content on more devices than ever before, and the choices are only growing through a variety of market-based approaches: smart TVs, iPads and other tablets, TV from the “cloud,” set-top boxes that can combine TV with Internet content, the growing role of home networking and connected devices. All of these approaches are playing a role.

As quoted in this write-up in Multichannel News, NCTA is suggesting that regulatory efforts intended to encourage innovation may instead impede.

“The problem that remains in this marketplace is not the need for a single guiding regulatory prescription,” like the FCC’s proposed AllVid solution, wrote Powell. “The marketplace is at a critical juncture, inviting participants to make major bets and even more major investments in technology to meet rapidly developing consumer demand with rapidly changing technological tools. This kind of innovation is about risk taking. The environment that invites the greatest risk taking is one with the certainty that regulators will not step in and displace new technologies or new investments.”

FOOTNOTE: There was a lot of activity at The Cable Show along these lines, but you get a taste of what’s happening in this area, watch some videos from The Park, such as the demos from Comcast, Cablevision and HBO.

We all have heard the Internet described as a “network of networks” but we generally give little thought to the remarkable logistics involved.  For the Internet to operate, thousands of networks – small and large, wireless and wireline, urban and rural, domestic and global – must establish arrangements to govern how they interconnect and exchange traffic.  While there are different types of providers (backbone, content delivery network (CDN), etc.) and different types of arrangements (settlement-free peering, paid transit) – see this White Paper for a good explanation – the key point is that these myriad of arrangements have developed over time, in the marketplace, without any legislative or regulatory intervention.  That the Internet works at all is amazing; that it works 24/7 to bring consumers content from around the world at lightning speed borders on the miraculous.

The FCC consistently has taken a “hands off” approach to these arrangements. It has not imposed any form of regulation on these arrangements, nor has it intervened in the periodic disputes that occur between backbone providers, like Level 3’s dispute with Cogent in 2005 – in which Level 3 insisted that Cogent pay a fee for transmitting content on Level 3’s network rather than peering on a settlement-free basis. Moreover, while the FCC has been considering net neutrality regulations for some time, it has never suggested that it was considering any change in the regulatory treatment of backbone and CDN providers. (Indeed, even the most fervent net neutrality advocates, like Free Press, have recognized the legitimacy of these commercial arrangements; see note 8 on pg. 17 in these comments).

So is there anything unusual about the dispute between Comcast and Level 3 that should cause the Commission to reassess its hands off approach to these types of arrangements?  No.  While some of the initial commentary, reacting solely to Level 3’s press statement, reflected a knee-jerk reaction that any dispute involving the Internet implicates net neutrality; as the day wore on, cooler heads seem to be prevailing, with most observers, including some net neutrality advocates, recognizing that this was nothing more than one party to a commercial negotiation trying to use the regulatory process to gain negotiating leverage (Also see this article from Multichannel News).

Nor can Level 3 credibly claim to be surprised by Comcast’s approach.  Comcast’s policy on settlement-free peering – including its expectation that any peering partner “maintain a traffic scale between its network and Comcast that enables a general balance of inbound versus outbound traffic” – is posted right on its website. When Level 3 approached Comcast and asked for a significant change in the parties’ physical interconnection arrangement, it should have fully expected that Comcast would seek a corresponding change in the parties’ business arrangement, consistent with the general practice across the industry.

Under the circumstances, Level 3’s plea for government intervention in this commercial negotiation is entirely unwarranted.

Both the government and particular speakers may have interests in regulating the media that are, arguably, at odds with the “public interest.”  Policymakers, for example, may favor particular viewpoints and/or particular speakers.  They may have an interest in maximizing the public’s exposure to those viewpoints, and they may have an interest in ensuring a soapbox for those speakers.  Correspondingly, they may have an interest in suppressing certain viewpoints and dampening the impact of particular speakers.

It’s not hard to see the danger to democracy and free discourse when the government attempts to promote the latter interests by directly targeting and suppressing particular content or particular speakers.  This is the most obvious of First Amendment offenses, and it was among the first to be successfully challenged by cable operators and programmers – most often in the context of state and local laws restricting nudity and “indecent” content on cable networks.

But the government also poses a threat when it puts a thumb on the scales of public discourse – a thumb backed by the force of law – by seeking to promote particular speech or speakers.  Public officials can artificially skew the marketplace of ideas and issues by forcing the media to carry particular programming that they would not otherwise carry.

For example, in 1996, a federal district judge expressed concerns when the City of New York pressured one of the city’s cable companies to carry the newly launched Fox News Channel on its system.  It was to prevent such intervention and interference with the speech marketplace that Congress prohibited state and local governments (and Federal agencies) from dictating the channels to be carried on cable systems – a prohibition that reinforces the interests and restrictions embodied in the First Amendment.  In this day and age, whatever one thinks of Fox News, presumably most observers would understand this concern when discussing programming that is itself often “political.”  But there is not a dime’s worth of difference (at least insofar as the First Amendment is concerned) if the program carriage decisions that the government wants to control are centered on the arts or cooking.

The issue becomes more difficult when the government seeks to intervene in the marketplace of speech in ways that purport to be “content neutral” insofar as the regulation does not expressly promote a particular speaker or viewpoint.  The ostensible purpose may, for example, be to prevent the media from promoting their own particular viewpoints or favored speakers while suppressing the speech of others.

One such approach is to require the media to be “fair” and to carry “opposing views on controversial issues of public importance,” as was required by the “fairness doctrine” that the FCC once applied to broadcasters and cable operators.  While it’s hard to argue that the public is best served when the media is “unfair” and presents a one-sided or lopsided view of important public issues, the problem is that, to enforce a rule of fairness, somebody needs to decide what’s fair.  Allowing public officials to make that determination is only a half-step away from allowing them to decide which viewpoints deserve more or less attention from the media.

Similar problems arise from “content neutral” regulations designed to prevent the media from unreasonably or unfairly discriminating against particular content or speakers.  There are a multitude of reasons why a cable operator (or a newspaper) might choose to carry a particular program network (or a particular columnist or comic strip) and not another.  Some of these reasons might seem reasonable, some unreasonable – but, again, who is to decide?

There’s a provision in the Communications Act that requires broadcast stations to provide all candidates for federal office with “reasonable access” to such stations during a campaign.  In the fall of 1979 – on the verge of the 1980 presidential election – the Carter-Mondale presidential campaign complained to the FCC that the (then) three major broadcast networks were not providing such “reasonable access” by refusing to sell a 30-minute block of time for use by President Carter.  The four Democratic members of the then-FCC found that the denial of access was unreasonable.  The three Republican Commissioners dissented.

The Federal Election Commission now consists of three Democrats and three Republicans.  The law that they are charged with interpreting is “party neutral,” yet they often divide 3-3 on party lines.  This isn’t a matter of bad faith.  It’s only confirmation that government officials, like everybody else, view fairness and reasonableness through their own prism.  And the First Amendment is meant to ensure that government officials cannot use the force of law to impose their views of fairness and reasonableness on public discourse.

This is true whether we’re talking about multichannel video, or the Internet.  More on that in the next segment.

While acknowledging these successes, the FCC’s Sixth Broadband Deployment Report – or 706 Report – nevertheless concludes that broadband is not being deployed to all Americans on a “reasonable and timely” basis because five percent of American households don’t have access to broadband with speeds of at least 4 Mbps.

It’s worth noting that the 4 Mbps threshold is new and represents a significant increase from the 768 Kbps used in the 2008 report, and the 200 Kbps used in the first four reports.  We have no problem using a 4 Mbps threshold for defining broadband:  I have argued for several years that 200 or 768 Kbps was an inadequate threshold for a policy definition of broadband (pages 5-6).  But if the 706 Report is to retain any value as a measurement tool, the Commission must heed its own advice and use the definition as “a relatively static point at which to gauge progress and growth… from one Report to the next.” If the Commission continually increases the speed threshold to reflect “current demand patterns” and “estimated future demand” as it did this year, it becomes a circular nullity and it will be a certainty that deployment never will be considered reasonable and timely.

While we respectfully disagree with the report’s overall conclusion, I do understand and agree with some of the policy implications embedded in it. Why?  Because the report plainly acknowledges that there is no reasonable business case to be made for extending broadband facilities to many of the unserved homes.  So instead of viewing the report’s finding as an indictment of broadband providers, it’s  perhaps better read as a statement of principle by the Chairman and two commissioners that, in their opinion, broadband already should be universally available, and, if there is no business case for that universal deployment, the government may have to step in to achieve it. So far as that goes, we agree.  For example, we support the report’s call to action on specific items that will speed broadband deployment to unserved communities.  Immediate FCC action on Universal Service Fund (USF) reform and pole attachment policy is critical to connecting unserved areas.

As explained in comments we filed last week, our industry strongly supports the USF reforms recommended in the National Broadband Plan (NBP).  To fund the FCC’s broadband USF proposals, we recommend adopting our proposal – filed in a November 2009 rulemaking petition – to reduce subsidies in rural areas where ample phone competition exists.  The sooner the Commission reduces unnecessary funding in the existing high-cost support program, the sooner it can direct funding to broadband deployment and adoption.

We also strongly support the recommendations in the NBP to establish low and more uniform rates for pole access, expedite the attachment process, and improve rights-of-way management.  As we’ve explained in numerous pleadings, lowering the cost and improving the process for attaching broadband network to utility poles will make a significant difference in the business case for broadband in rural areas.

We appreciate that the report did not point to the Commission’s pending “Third Way” or “Open Internet” proceedings as potential solutions for connecting unserved areas.  There has been, and will continue to be, extensive debate on the merits of the Commission’s proposals in those proceedings.  But no one could credibly argue that adding Title II regulation, in any form, will have the effect of encouraging providers to invest in remote areas that they are not serving today.

But we’re disappointed with the Commission’s use of data in the report.  The report relies almost completely on stale data, flawed data, or undisclosed data.

The key statistics in the report are drawn from Form 477 data for December 2008, data that was out of date when it was released earlier this year and is now 18 months old.  Broadband providers have made two subsequent Form 477 filings (with another one scheduled in a few weeks), so the reliance on stale data is frustrating.

Equally troubling is the Commission’s repetition of the NBP’s claim that “actual” broadband speeds are only half of “advertised” speeds.   After the NBP was released, we submitted an expert technical report demonstrating that the comScore data used was deeply flawed.  Since then, cable and telco ISPs have been working constructively with Commission staff on a hardware-based testing regime that should produce more accurate results.  Given the hard work that has been devoted to produce accurate speed measurements, it is disheartening that the 706 Report chose to perpetuate the NBP’s flawed speed data conclusions.

Finally, some of the data relied on in the 706 Report is not publicly available.  The report relies extensively on a cost model created for the NBP, but that model hasn’t been released, making it impossible to validate its results.  The Commission also repeatedly refers to an FCC staff report on international trends, but that report also has not been released.

The good news is that these data hurdles can be overcome, and the Commission is embarking on a major initiative to revamp its data collection and reporting processes.

As we continue to reflect on the findings of the 706 Report, keep in mind that broadband has been adopted faster than any other major consumer technology ever.  We still have some work left to ensure that every American can reap the benefits of this service but let’s not lose sight of our success.

This received a lot of coverage (see this Ars Technica post), but lost in all the hubbub were the findings on consumer satisfaction: 91% of home broadband users report being at least somewhat satisfied with the speed of their service.

• 50% of home broadband users are very satisfied with their home connection speed.
• 41% of home broadband users are somewhat satisfied with their home connection speed.

How Do We Measure Satisfaction?

So, people generally don’t know their speed, but they are largely satisfied. Are these findings at odds? I don’t think so.

I’m a pretty savvy Internet user, but I couldn’t tell you off the top of my head what the speed of my Comcast home connection is. We also have Comcast here at NCTA’s offices, so I can check Speedtest.net and tell you I’m getting 35.74Mbs down / 4Mbs up. A colleague checked it earlier today and got 45 down / 6 up.

But I had to check to get those figures, because I don’t really need to know the speed I’m getting. What I’m interested in is whether I’m having a satisfactory experience. Are web pages loading? Is my streaming video buffering too much?

As NCTA has explained (See this previous post: The Measure of “Measurement”), and the FCC has acknowledged, online speed tests can provide a measure of the speed that a user experiences, but they do not necessarily provide an accurate measure of the performance of a user’s broadband provider because the results also are affected by the performance of home networks and the public Internet.

Occasionally, I’ll download really large files, but I don’t use any low latency applications. Therefore, for email, web browsing and streaming media, a steady connection covers my needs. My Internet experience is also affected by the computer I’m using and the sites I visit, which can only load the content so quickly in any case.

And since my cable provider keeps periodically increasing the speed of my cable modem service at home, I don’t keep up with what it is at any given point (although I know I passed 10 Mps some time ago). As long as it works and I can do all the things I need to do, I don’t otherwise pay attention.

The FCC’s survey suggests that the vast majority of users may have a similar view. In that sense, it is worth noting that the survey seems to present a very different – and more accurate – picture than you would get if you only read the comments that are posted on blogs that cover this issue.

The Future of Fast

Some people need a super-fast connection or do need to worry about latency, such as gamers. And as such applications as telemedicine or high-definition teleconferencing become more prevalent, more people will fall into this category. In the future, I may pay much closer attention to the speed I receive.

Cable operators appreciate that different consumers may need different levels of service and that some customers may be more concerned with the specific details of their service than others. That’s why NCTA has been working closely with the FCC on the testing initiative announced on Tuesday. The SamKnows test should be a good starting point in developing a common method by which all broadband providers can measure the speed they deliver to consumers.

But the reason 80% of users don’t know the speed of their connection may be because that’s not how they measure satisfaction.

“The issues presented by the Comcast decision are a test of whether Washington can work—whether we can avoid straw-man arguments and the descent into hyperbole that too often substitute for genuine engagement.”

At NCTA, we couldn’t agree more and pledge again that our industry will work constructively with the FCC, Congress and all policymakers to create an appropriate framework that preserves an open Internet and achieves the goals of the National Broadband Plan.

But as this important dialogue moves forward, it’s critical that we at least have a common understanding of some basic facts – perhaps the most basic being a common understanding of what the Internet is.

Which brings me to the odd “rebuttal” that Free Press issued today to comments by NCTA and others on the Chairman’s “third way” proposal. It includes these phrases:

“The ‘Internet’ is not the wires that deliver the content and applications, but the content itself.”

“We trust that the NCTA will be reassured by the FCC’s repeated assertions that they have absolutely no plans to regulate the Internet.  Being the expert agency for communications, the FCC recognizes that broadband communications services are not ‘the Internet’, contrary to NCTA’s deliberately misleading statements.”

Perhaps Free Press should take a closer look at the Communications Act – specifically section 230(f)(1), which was added by the 1996 Telecom Act:

“The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.”

Nowhere in Congress’ definition does it describe the “Internet” as being the “content” provided over the networks rather than the networks themselves.  The Commission itself cited Congress’ network-based definition of the Internet in adopting its 2005 Policy Statement on Broadband Internet Access.

Congress used a similar network-based definition in the Broadband Data Improvement Act in 2008:

INTERNET.—The term ‘‘Internet’’ means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor successor protocols to such protocol, to communicate information of all kinds by wire or radio.

Likewise, the US Supreme Court has described the Internet as a “network of interconnected networks” (National Cable & Telecommunications Ass’n v. Brand X Internet Services) and as a “worldwide mesh or matrix of hundreds of thousands of networks, owned and operated by hundreds of thousands of people”(Reno v. ACLU).

Free Press may wish that the Internet was something else, but that does not make it true.  Let there be no doubt: When you regulate broadband networks, you are regulating the Internet.

[Editor's Note: Rick Chessen is Senior Vice President, Law & Regulatory Policy for NCTA. In addition, one sentence above was edited for clarity]

You can find a PDF of The Third Way: A Narrowly Tailored Broadband Framework online. It’s also helpful to read this statement from General Counsel Austin Schlick.

We’ve just released a statement from NCTA President & CEO Kyle McSlarrow.

“We firmly believe that the case for new regulation of the Internet has not been made. Today’s competitive and dynamic broadband marketplace already operates according to openness principles that have broad industry consensus and serve consumers well. We support the goals and many recommendations of the National Broadband Plan. And, as we have repeatedly made clear, we are prepared to work constructively with the FCC, Congress and all policymakers to create an appropriate framework that preserves an open Internet and achieves the goals of the Broadband Plan.

“Given that context, the proposal to ‘reclassify’ broadband services is disappointing. We fully acknowledge and appreciate that Chairman Genachowski has outlined an approach designed to avoid the full regulatory impact of a Title II regime and that he has asked for comment and constructive alternatives, including inviting a continuing dialogue about solutions under Title I. We also understand the challenging jurisdictional questions before the Commission. However, any Title II approach is still fraught with legal uncertainty and practical consequences which pose real risks to our ability to provide the high-quality and innovative broadband services that our customers expect, thus undermining the very investment and innovation goals we share with Chairman Genachowski and upon which the National Broadband Plan depends.

“Nothing has occurred either in the marketplace or in broadband technology to change the fact that our broadband services are ‘information services,’ and not ‘telecommunications services’ that are regulated under a model designed for a previous era and for very different services. Thus, as part of the process outlined today by the Chairman, we will continue to make the case that the better course is to develop a solution that reflects the longstanding and bipartisan view that all components of the Internet should be subject at most to limited regulation under Title I.”

Here is some news coverage of the announcement.

• FCC Officials Lay Out ‘Third Way’ of Regulation
• FCC to Adopt “Title II Lite” Approach to Web Regulation
• FCC Seeks to Reclaim Powers After Losing Court Case to Comcast