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Tuesday, April 22, 2008

Justine Bateman, Net Neutrality & Celebrity Witnesses
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So there's another Net neutrality hearing today. I'm beginning to think we'll have to endure one every week for the rest of time. Anyway, today's took place in the Senate Commerce Committee and it featured the testimony of 1980s TV star Justine Bateman, who was in the sitcom "Family Ties."

Before I get to the "substance" of her arguments, I have to say that celebrity testimony has long been a fascination of mine. Whenever a celebrity or pop star shows up in the hollowed halls of Congress, the collective knees of lawmakers simply melt like butter as they fawn over them and all rush to get snapshots and autographs for their office walls.

It would be tough for me to single out my favorite celebrity testimony moment. Kim Basinger on banning animal research? Meryl Streep on banning Alar? Kevin Richardson of the Backstreet Boys on coal and water regulation? While those were all certainly great moments in the history of our republic, my favorite celebrity testimony of all-time had to be from 1993, when Sheri Lewis and her sock puppet "Lamb Chop" testified in favor of the Children's Television Act, a law regulating educational TV programming. What made is so special was not that Ms. Lewis testified alone. Lamb Chop testified too! I wish I had the video of that to post here. I mean, there was a woman with a hand in a sock making it talk to elected members of Congress... and they were listening. Awesome.

Anyway, if you ever want to read a fun paper about the softball treatment these celebs get when they go up to the Hill to impart their wisdom on the masses, you'll want to check out Harry Strine's "Your Testimony Was Splendid: The Treatment of Celebrities and Non-Celebrities in Congressional Hearings." After studying celebrity testimony over the past few decades, Strine concluded that:

* almost 25% of the questions or comments made to celebrities are statements showing hospitality, sympathy, and high regard whereas only 8% of the non-celebrities receive similar comments at the hearings. Ironically, most of the non-celebrity witnesses appearing in these hearings are well educated and accomplished individuals, clearly deserving of praise, while the celebrities are in attendance simply because they are famous, or are from Hollywood.

* members of Congress use celebrity hearings as an opportunity to speak to their constituents or other members of Congress because of the added media attention. Here, the results suggest members are more likely to use these hearings (or, more precisely their face time with the celebrity) as an opportunity to present themselves and their viewpoints to others.

* that committee hearings are largely strategic enterprises because most celebrities are not policy experts and will not have much policy content in their testimony. The members of Congress give celebrities an opportunity to provide information that will ultimately not be helpful in drafting public policy. The second implication of this finding is that the experts are given as much of an opportunity to provide policy or other information to the panel as the celebrities. This is just fascinating.

Indeed it is, but not altogether surprising, unfortunately. Anyway, back to Justine Bateman and Net neutrality...

In her testimony this morning, Ms. Bateman begins not with Net neutrality, however, but an older rant that I have referred to in my work as the "neo-conspiratorial theory of mass media domination." We've all seen this myth at work before, but Ms. Bateman is elevating myth-telling to high art here:

When I started acting in the early 1980s creativity in TV and film was still rampant and innovation of ideas and performance were exalted. The demise of this creative setting is directly proportional to the increase of media consolidation, which is in large part due to the repeal of the financial interest and syndication rules. Now we have too many executives and too many notes given until there is no artistic voice, no point of view, and little entertainment value left in the projects we work on. On top of this there are fewer jobs. In today’s TV market a show like Family Ties, may never make it to TV. Media companies not only have a monopoly over distribution, they then insist on ownership and control of content which strongly interferes with the production of hi-quality, creative product.

Wow. That sort of drivel is on par with statements previously uttered by someone else Ms. Bateman was testifying with today, Stanford Law School Professor Lawrence Lessig. In his book Free Culture, Lessig actually says that: "Today, another Norman Lear with another 'All in the Family' would find that he had the choice either to make the show less edgy or to be fired." (p. 165). And Lessig blamed the supposedly nefarious corporate media conspirators for snuffing out all high-value and "edgy" programming on television.

Statements such as those Bateman and Lessig make in this regard don’t even pass the laugh test. It's 100% pure bunk. Indeed, if we are to believe many of the other critics of media today, quite the opposite is the case. For many media critics—especially conservative critics—today’s network dramas and sitcoms are too “edgy” and push the envelope in ways few would have imagined or tolerated when All in the Family hit the airwaves in the early 1970s, or even when Family Ties aired in the mid-80s. Desperate Housewives, NYPD Blue, CSI, ER, 24, Seinfeld, Friends, and Will and Grace are just a few examples of provocative network programs from the past decade that call the Bateman-Lessig thesis into question.

Moreover, even if there was any merit to their argument about All in the Family or Family Ties not being able to find a home on network television today, there are countless cable networks would be happy to take such shows. The Sopranos, The Shield, Nip/Tuck, The Wire, South Park, Sex and the City, Deadwood, and Queer as Folk would seem to prove that point quite well. Indeed, broadcast television networks would likely develop even "edgier" programs if not for fear of government censorship and indecency fines. This is one reason cable television programmers are receiving so much praise and audience attention today.

And don't feed me any BS line about television having limited options or being controlled by "gatekeepers." Absolutely poppycock. Indeed, if TV operators are supposed "gatekeepers" in the video programming marketplace, then they’re not doing a very good job at shutting down independent programmers! Here are the facts if Ms. Bateman and Prof. Lessig care to listen, and they are taken directly from FCC reports. As the exhibit below illustrates, the overall number of video programming channels available in America has skyrocketed since 1990, from just 70 to a whopping 565 in 2006. In other words, there is no longer any need to talk about a proverbial “500-channel universe;” we are living in it today. Clearly, therefore, TV distributors have not restricted the amount of video programming options. We have more options than ever before.

Video marektplace choice and integration

But–the critics claim in response–even if the overall number of channels has been increasing, cable operators have still limited the ability of independent voices to get a slot on cable distribution systems. Hogwash! In fact, as shown above, the numbers tell the exact opposite story. The greatest share of the growth in the multichannel video marketplace has come from independently-owned video networks. Since 1990, the number of cable-owned or affiliated channels has increased slightly, but it it pales in comparison to the growth of independently-owned and operated video networks. In real terms, therefore, the percentage of the overall video marketplace controlled (i.e., owned and operated) by cable has plummeted–from 50% in 1990 to just 14.9% today! Therefore, as far as vertically integrated industries go, it is impossible to conclude that this one could be characterized as being controlled by “gatekeepers.”

OK, the critics say, so perhaps there are more channels, and perhaps most of them are being created by independent programmers. But it’s all just the same crap! This argument just kills me. Seriously, have the critics spent any time flipping through the lineup of channels on TV? My finger usually gets sore after the first 150 or so channels, but I sometimes like to see how long it takes me to scan all the stuff out there just to see if there is any human interest or hobby that is NOT currently covered by some video network.

And then, of course, there's the Internet! For God's sake, every man, woman and child on the planet today can have the equivalent of their own 24-hour-a-day broadcast channel on You Tube or other video sharing sites if they want. There is absolutely no shortage of places to put your content today online. No one is stopping you from creating or distributing anything you want. Of course, no one may be watching your productions either, but that doesn't mean there's some grand conspiracy by "The Man" to hold you down or limit your creative output. It just means you need to create more appealing art that the masses will enjoy. Ms. Bateman, are you listening?

Apparently she is, to some extent, because she has recently created a new venture called FM78.tv that aims "to make and distribute professional, high-quality content directly for the Internet." Although the site is not up and running yet, it looks quite promising since the placeholder at the top of the current website reads: "This site currently brought to you by drunken college students." I very much look forward to seeing what that project yields! Anyway, the point is that FM78.tv has a home on the Internet and no one is going to block it or remove it from the Net.

So, what's the problem again, Ms. Bateman? Could it be that you just a little bit sore because your content no longer enjoys the limelight and that your star status has fallen a bit? If so, don't make a federal case out it. Just make better content and do you best to elbow your way through the competitive clutter and information overload of modern times to find yourself an audience. Of course, whatever audience you do manage to attract will never be as big as the one you had in the days when your corporate daddies at NBC were pulling in massive ratings thanks to the lack of competition they faced from other video providers. Those "good 'ol days" of the 1980s you are waxing nostolgic about weren't really so good for the rest of us who didn't have as many places to turn the channel when you were on!! Believe it or not, some of us did not watch "Family Ties" by choice, but rather for a lack of better (or any) alternatives.

OK, enough about that, let's turn to Ms. Bateman's Net neutrality arguments. Sadly, we've heard these before, too. There's still more conspiratorial, Chicken Little theories spun. Here's a particular gem from her remarks:

In entertainment, I believe we are on the verge of a creative renaissance and the Internet is the new grid upon which this renaissance can rest, because unfortunately the business grid of TV and film today cannot support that. Traditional media is now like a pool over which a pool cover has been placed causing those wild ducks that used to swim around in your pool to go elsewhere. (True story about my pool. I’m sorry we don’t see those ducks anymore.) Those ducks now I’m sure have found an open body of water in which to swim, much like we content creators have been found open distribution on the Internet. And the idea of your site succeeding or failing based upon whether or not you paid the telecom companies enough to carry your material or allow quick access is appalling. Honestly, I can’t help but think of extortion when I imagine that kind of arrangement.

Hmmm... so is the moral of the story that no one should ever put covers on pools in the name of giving ducks more places to swim? If so, someone will need to explain to me how this this translates into regulation of the Internet and broadband networks.

But wait, "net neutrality is NOT government regulation," Ms. Bateman says in her testimony. Frankly, I am getting sick and tired of Net neutrality advocates making the absurd argument that it is not regulation. After all, if it is NOT regulation, then we do NOT need to pass a law enforcing it, right? So why is it that NN advocates all are quite explicitly seeking a law or stepped-up FCC oversight of broadband networks? Hey, you can't have your cake and eat it too, folks. (Although Lessig apparently thinks so). If you want Net neutrality on the books, then you are in favor in Internet regulation. Period. End of story. Do not try to play word games and disguise your true intentions. At least have the guts to just come out and say what you want stop playing these games.

As I pointed out in my essay on the "leap of faith" that so many people appear willing to take when it comes to Net neutrality regulation: "once we open the door and invite government in to regulate Internet architecture, business models, and pricing decisions, it's only a matter of time before they up the ante and propose regulating a whole lot more." And that includes many other forms of online commerce and online expression. You NN advocates can smirk and brush off that threat all you want, but it is real. If you don't believe it, read the history of broadcast regulation in this country. Once the government had an opening to regulate the medium, they regulated everything done and said on that platform. And so today, 70 years after broadcast regulation was put on the books, we are fighting over licensing regulations, speech controls, educational programming mandates, campaign finance rules, and much much more. Is that what you want for the Internet?

NN regulation is more than just the camel's nose on the Internet tent; it is an open invitation for unelected FCC bureaucrats to comprehensively regulate the entire super-structure of the Internet and the modern digital economy. Shame on those who hold the door open and invite the government in to do so.

posted by Adam Thierer @ 8:51 AM | Generic Rant , Net Neutrality

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