Size 18 Shoe in your front door. Comcast conflating content & broadband.

A couple of days ago, Susan Crawford alerted us to the Congressional hearing held today in Washington, examining what she calls the “Comcast transaction”, Comcast’s bid to purchase NBC Universal.

(FWIW, calling it the “Comcast transaction” without explanation, Susan reveals how far we insiders have distanced ourselves from the real people – voters – who might have an interest in an issue and might exert real political power on an acquisition that affects our ability to use broadband and to be free to deploy the Internet on our own behalf without interference from our Internet provider’s vested interest in the content they want us to “consume”. Out here in the nocluesphere, we have no idea what the “Comcast transaction” might be.)

Susan is rightly exercised:

1. The transaction would give Comcast, the nation’s largest cable operator, control of one of the five large US content providers and about 30% control of Hulu.com.  If the transaction is approved, Comcast will be behind about one out of every five viewing hours in the U.S.  We are a nation of living-room watchers, and Comcast will be there.
2. Comcast is smart to be using control over content to guarantee dominance in broadband.  There are fewer competitors in broadband – usually two in any locality, a cable company and a telco – than there are in video.  Cable is already doing better than VZ/AT&T, and prices for high-speed Internet access are staying high and bundled.  NCTA says that cable modem service is “available” to 92% of homes.  We won’t be seeing VZ or AT&T fiber reaching more than 40% of households over the next few years.  Cable has a bright future.
3. Comcast says that this is a vertical transaction that should not trigger competition concerns.  They point out that both the Comcast and NBCU cable networks together will add up to just 12% of national cable advertising and affiliate revenue.  (Comcast wants the NBCU cable networks (CNBC, Bravo, Oxygen), which generate 60% of NBCU’s earnings.)  They also say that online video content is so wildly competitive that this deal will have no impact.

And Susan suggests the questions that might come up on Thursday:

• What power will Comcast have to shape the future of online video (or “Internet TV”)?  This transaction may make it less likely that people will cut the cord and disintermediate their cable provider, moving their online video-watching from their PCs to their large living room screens.  Comcast will have no incentive to make its content available online to non-subscribers.
• Online video/Internet TV is a new market.  Right now, it’s relatively small and confined to PC-viewing.  Comcast says we shouldn’t consider potential harms to a future market.  Is that right?
• What effect will this transaction have on the prices consumers pay for cable subscriptions and high speed Internet access?

But there is NO structural mechanism to ensure that those questions actually come up. Sure, on Thursday, under the currently trusted guidance of FCC Chair Julius Genachowski, the right questions might be heard. But would they have been heard under Dubya’s appointed tool, Genachowski’s predecessor, Kevin Martin? As citizens, can we afford to place our trust in the hope that the regulators will always have our interests in mind? How might we ensure that knowledgeable questions are asked in these crucial committee meetings? Since lobbyists can’t guarantee what questions are raised in a hearing, how might we?

“We” being, you know, actual voters. Maybe even *certified voters*, proven to be constituents of the representatives asking the questions and guiding the trajectory of the hearing. i.e., voters getting their democracy on.

Those are the kind of voters who drive politicians’ actions: the questions, comments and votes they express in committee hearings and on the floor of the Congress.

If there were a zoning hearing affecting your home, you’d damn well find out who’s on the Zoning Board and what their biases are. Likewise, if you want to affect a Congressional Committee Hearing, you need to know who’s on the committee. In this case, the committee is the House Subcommittee on Communications, Technology and the Internet, reporting to the House Committee on Energy and Commerce. So here’s the playing field of this particular subcommittee:

Rick Boucher, Virginia, Chairman

There they are, 34 Congresspeople, concerned mostly about being re-elected in nine months, jonesing for $3,000 per day so they can buy as many ads as needed to convince voters (whoever they are!) that they are listening to their voters. I can’t find the quote, but $3,000 per day is what I remember from Larry Lessig and that’s good enough for me. On any given day next fall, these representatives will drive 45 minutes out of their way to meet a dozen or so of their (presumed) constituents in a gym or diner to demonstrate how well they listen.

Given those imperatives, how hard can it be for a few third-party-certified* constituents to get a question asked in a hearing, the asking of which costs the representative nothing and which may line him up for grassroots campaign contributions that the lobbyists can’t promise and, amazingly, might explicitly pledged votes? Those being votes that no lobbyist would even suggest they could corral for you. They’re not in the Get-Out-The-Vote business. “GOTV” is the essence of “retail politics”, and that’s what political campaigns spend lobbyist money on. But what if we voters got into the GOTV business? Hmmm.

Welcome to the new math of citizen engagement. In the bargain, voters’ questions might actually make the representative look well informed. But wouldn’t that reduce the contributions they might get from the interested corporations? How much would it matter? According to a 2006 report from Freepress.net:

Between 1991 and 2006 major cable industry interests and their trade groups spent more than $105 million on campaign contributions to federal candidates and on lobbying in Washington. The five members of Congress who currently hold key positions on the crucial House and Senate Commerce Committees alone have received more than half a million dollars in contributions from major cable interests since 1991. Contributions went both to members’ candidate committees and their leadership political action committees (PACs).

It’s a lot of money, but how much might those fifteen years of contributions sway each representative? According to the FreePress report, Comcast has contributed $2,516,528 to Federal candidate committees and leadership PACs from 1991 to 2006. That amounts to $167,769 to ALL politicians through the period. Freepress notes that, in 2006, when Fred Upton, R-MI, was chair of the House subcommittee, he had received $118,997 from Comcast since 1991. Of course, it stinks, but it amounts to $7,933 per year.

Perspective: We hate the fact that our congresscritters, on average, must raise $3,000 per day to conduct a serious campaign. But shouldn’t we acknowledge that, for their apparent champion on the subcommittee, Comcast was only willing to provide 2.6 days of fundraising? Do we really believe that Fred Upton is willing to pervert his entire agenda for that mild level of support?

And Fred’s just the most highly compensated supporter of the Comcast devil. In fact, the other 33 committee members must be far less impressed, financially, with Comcast’s agenda. And you can bet that they also have broadband that sucks, and they know it.

So what’s the point here? American households, not corporations, have most of the money and all of the votes. Given the tools becoming available, we might be equipped to use them.