Laws written even a few years ago are ill-equipped to deal with changing technologies.  Here are two related items that caught RoadMAP’s eye during its vacation that show some of the problems.  How do the Hatch Act’s restrictions on federal employees’ political activities apply to telecommuters with Twitter accounts and a home computer?  Does the right of opposing litigants to access your Facebook data depend on your privacy settings?  There are more questions than answers here.

MORE:
Federal Workers’ Use of Internet Social Media Has Limits Under the Hatch Act
Washington Post

Is ‘Private’ Data on Social Networks Discoverable?
National Law Journal

Saying the issue has been studied long enough, public interest groups Wednesday called on the FCC to proceed with action on network neutrality rules that would bar broadband providers from discriminating against or prioritizing Internet content.

The groups made the call in response to the public notice issued Wednesday by the commission related to its open Internet proceeding. It has called for additional public comment on whether open Internet rules should be applied to wireless broadband and “specialized” services. It comes less than a month after Google and Verizon released a proposal that called for exempting such services from net neutrality rules, while applying them to wireline broadband.

“The FCC continues to kick the can down the road and prolong this process, but the longer the FCC ponders the politics of net neutrality, the longer consumers are left unprotected,” Free Press Research Director S. Derek Turner said. “It is time for the FCC to stop writing notices and start making clear rules of the road.”

Public Knowledge President Gigi Sohn said the public notice should not stop the commission from moving forward on FCC Chairman Julius Genachowski’s “third way” proposal aimed at solidifying the FCC’s authority over broadband providers by reclassifying some aspects of broadband as a telecommunications service. That proposal would allow the FCC to proceed on its open Internet rules. The commission’s authority over broadband providers was put in doubt in April after a federal appeals court ruled the FCC went too far when it tried to enforce network neutrality principles against Comcast.

“Nothing in this public notice prevents the FCC from taking prompt action on its ‘Third Way’ proceeding, which would make certain all Americans have affordable access to broadband, and to make sure it can deal with public safety and other crucial issues that are broader than the narrow issues on which the Commission seeks comment,” Sohn said in a statement.

Media Access Project Associate Director Matt Wood added that the FCC has sought and received information on the same questions it asked in the latest public notice. “The record demonstrates already that the same framework and openness principles should apply to all broadband access services, even if the rules differ on the basis of legitimate technological differences,” he said. “The record also shows that the commission must retain authority over specialized services.”

Industry players were more supportive of the FCC’s lastest move on the issue.

“We are happy the chairman and the commissioners realize that wireless is different,” CTIA President and CEO Steve Largent said in a statement. “We will continue to work with them to explain why these rules are unnecessary and should not be applied to the wireless ecosystem.”

AT&T Senior Executive Vice President Jim Cicconi said his company has “worked hard to find common ground on these difficult issues and feel good progress has been made. In particular, we feel a path can be found that addresses concerns about Internet openness, while at the same time preserving jobs and protecting needed investment.”

The work of the Federal Communications Commission (FCC) is never easy, but lately the agency seems to be eliciting more negativity than usual.

The agency’s most recent request for information, issued today (Sept. 1), has irked several public interest groups, including Public Knowledge, Free Press and Media Access Project. The notice is an extension of the FCC’s analysis of open Internet rules for the telecommunications industry.

This particular survey asks two questions: whether to continue to allow cable and telecom companies to offer “specialized” services (beyond basic access) over their networks and what policies, if any, should be applied to wireless networks in the U.S. A decision could affect a number of service providers, including Comcast, Time Warner Cable, Cablevision, AT&T, Verizon and Qwest Communications.

The broader issue is often called “Net Neutrality” because it hinges on whether broadband operators should give equal treatment to the applications and services that traverse their networks. The Commission first solicited comments on the topic in late 2009.

It is this leisurely timeline that is agitating some organizations. In written remarks, Public Knowledge, Free Press and Media Access characterized the FCC’s investigation as hesitant and inefficient.

Gigi B. Sohn, Public Knowledge’s president and co-founder, said: “We note that both of the issues on which the FCC seeks public comment, dealing with specialized services and the status of wireless services in an open Internet, were extensively explored in not one, but two proceedings pending at the Commission in which comments were submitted.”

Free Press Research Director S. Derek Turner chimed in with this statement: “The FCC continues to kick the can down the road and prolong this process, but the longer the FCC ponders the politics of Net Neutrality, the longer consumers are left unprotected. It is time for the FCC to stop writing notices and start making clear rules of the road.”

And Matt Wood, Associate Director of Washington, DC-based Media Access Project, which describes itself as a nonprofit, public interest law firm, noted: “…The Commission asks the same questions time and time again about wireless broadband services and specialized services, instead of providing basic answers on the basis of the robust record it already has compiled. MAP, other public interest groups, companies, trade associations, and other commenters on all sides of the issue have provided great detail on these topics, both in the Open Internet and Broadband Framework dockets.”

To be sure, much of this backlash is predictable. These public interest groups have stated for months that they want the FCC to draw up rules that would give it oversight of broadband networks in the U.S. Once that authority is established, they want the FCC to marshal it to preserve the “open” nature of the Internet.

Accordingly, these groups don’t see a need for the Commission to solicit more opinions about Net Neutrality–not even related to “specialized services”–because they believe the FCC should monitor anything related to broadband access.

Service providers have tended to disagree, characterizing additional regulation or oversight of their networks as heavy handed. That position was confirmed on Wednesday by CTIA-The Wireless Association, a trade group that represents the wireless communications industry.

In a statement, CTIA President and CEO Steve Largent said, “We are pleased the FCC has put out the Public Notice for comment on the application of open Internet rules for our industry. …We will continue to work with them to explain why these rules are unnecessary and should not be applied to the wireless ecosystem.”

The diverging viewpoints mean any action the FCC takes related to Net Neutrality will be criticized. That’s a persuasive reason for the Commission to solicit as much data as possible and thoroughly examine the issue. But the interest groups have a legitimate point as well: at some point, the FCC must stop asking questions and commit to a policy that addresses access to and usage of the Internet.

That may not happen until 2011. In a Sept. 1 research note, Stifel Nicolaus analysts Rebecca Arbogast and David Kaut predicted that the FCC would accept comments until the end of November, pushing any decisions regarding network classifications to even later in the year.

The Federal Communications Commission (FCC) released a document on Wednesday spelling out mandates it is considering that would limit how broadband service providers may treat wireless traffic and sell “specialized” services.

The two issues constitute the most contentious areas of the net-neutrality debate. Industry stakeholders have failed to reach an agreement on these sticking points in talks at the FCC and at a trade association.

Requesting comment on possible new mandates, the FCC revealed new details on what it sees as possible ways to apply net neutrality rules in these contentious areas.

The FCC noted that an agreement between Verizon and Google issued this month “would exclude wireless, except for proposed transparency requirements.” The agency made it clear that other options are on the table.

“If providers were to be prohibited from denying or restricting access to applications in their capacity as network providers, should they nevertheless have discretion regarding what apps are included in app stores that they operate?” the document asks.

It also questions whether usage-based data models, such as those rolled out by AT&T this year, mitigate concerns about scarce network capacity, a pillar in providers’ arguments for why wireless services should not be regulated.

The FCC also lays out possible mandates to rein in the nascent practice of selling “managed services” that give content providers paid access to a throughway that is faster and more reliable than the “public Internet.” Content providers could pay to send high-bandwidth applications and content via these services.

The commission said concerns about the growth of these services center around the following fears: that these services will undercut open Internet rules, supplant the Internet and lead to anti-competitive conduct.

If these fears are realized, “the open Internet may wither as an open platform for competition, innovation and free expression,” the document said.

The FCC lays out possible solutions for preventing managed services from swallowing the Internet as it is today.

The FCC could limit what managed services broadband providers may offer, mandate that providers make capacity available for the public Internet and create rules for how providers advertise managed services. It could also force providers to offer the same rates to all content providers.

The notice received positive feedback from NCTA, the cable association. Chief Executive Kyle McSlarrow said it “raises important and complex issues and we will provide our input.”

Media Access Project’s associate director, Matt Wood, saw the document as repetitive. “The commission asks the same questions time and time again about wireless broadband services and specialized services, instead of providing basic answers on the basis of the robust record it already has compiled,” he said.

Consumer-interest group Public Knowledge (PK) echoed that the FCC is not breaking ground.

“We note that both of the issues on which the FCC seeks public comment, dealing with specialized services and the status of wireless services in an open Internet, were extensively explored in not one, but two proceedings pending at the commission in which comments were submitted,” said PK President Gigi Sohn.

Matt Wood, Associate Director of Media Access Project, issued the following statement:

“Recent events prove that giant companies left to regulate themselves will craft rules full of loopholes and exceptions that benefit their own interest, not the public interest. The Commission asks the same questions time and time again about wireless broadband services and specialized services, instead of providing basic answers on the basis of the robust record it already has compiled. MAP, other public interest groups, companies, trade associations, and other commenters on all sides of the issue have provided great detail on these topics, both in the Open Internet and Broadband Framework dockets.

“The record demonstrates already that the same framework and openness principles should apply to all broadband access services, even if the rules differ on the basis of legitimate technological differences. The record also shows that the Commission must retain authority over specialized services.”

Throughout years of debate on open Internet protections, cable and telecommunications carriers have continually argued that strong net neutrality rules will hurt investment. They maintain that regulation to forbid discrimination in network management would cause them to back away from building and upgrading broadband infrastructure nationwide. These flawed arguments are intended to deter FCC Chairman Genachowski from imposing nondiscrimination rules for fear that investment will decline or even come to a halt, leaving the U.S. even farther behind in broadband penetration than it already is. So far, the arguments have worked.

But this is far from the first time the FCC has shown a lack of political courage or will to protect consumers in the face of powerful industry pressure. History shows us that the FCC has presided over a progressive decline in investment and competition in the Internet space over the last decade, due to deregulation brought on by the agency’s willingness to bend to pressure from the cable and telecommunications lobby Goliath. From placing broadband Internet access under a weak regulatory regime in 2002 and 2005, to weakening infrastructure build-out requirements from communications franchising rules in 2006, the FCC has erased more and more important policies that ensured competition and innovation in the Internet marketplace.

It is time for the FCC to end this downward spiral of deregulation, and to stand up for what is best for the economy, the public, and the future of competitive business. Contrary to the agency’s actions earlier this decade, it is not the absence of regulation that will ensure investment and consumer protection. In fact, without the strong likelihood of a financial return, companies cannot be trusted to spend funds strictly for the benefit of the public without adequate regulation. (I wish I had a penny for the number of times this was proven true.) An effective government demonstrates the leadership necessary to ensure that the free market system operates fairly. It proactively eliminates opportunities for companies to place the bottom line before the public interest.

The following review of Internet policy deregulation in the last decade should be a significant cause for alarm.

From Competition to Duopoly

The 1990s was the age of dialup Internet, with its myriad of Internet service providers vying for the attention of consumers. America Online, Earthlink, NetZero – many of these companies still serve low-income and rural households.

The kind of intense competition available for dialup, but not for cable, DSL, FiOS, or mobile wireless, is due to “common carriage” rules imposed on carriers by Title II of the Communications Act of 1934. Among other things, Title II requires these companies to open up their networks to competing Internet service providers. Telephone service has had to abide by these requirements for a century or more (and thus, dialup does too).

Cable carriers soon entered the Internet service provision market – but in 2002, their massive lobbying might convinced the FCC not to impose the same requirements for cable modem service. Cable carriers used the same threats about investment to avoid common carriage that they are using today to avoid net neutrality rules: they said competition from other Internet service providers would place too much of a financial burden on them to carry out upgrades and build-out needed for increased bandwidth capacity, or would diminish their incentive to invest if they cannot monopolize the returns on that investment.

The result of this harmful FCC decision is evident in today’s cable broadband market: subscribers in most markets can receive cable Internet only via one incumbent cable carrier. The carrier gets to name the price for its services, and unsurprisingly, Internet users pay much more for slower service than those in other nations do. They also receive about half the broadband speed advertised by their providers.

In 2005, in another radical policy departure in support of large incumbents, the FCC extended the same treatment to telephone company broadband offerings. The agency reclassified DSL, which is transmitted via the same phone lines used to provide dialup, removing it from Title II of the Communications Act. The ruling thus removed common carriage requirements on DSL providers, diminishing consumer protections for the vast majority of high-speed Internet service users.

Today, DSL carriers offer similarly high prices for snail-like speeds compared to the broadband offerings of other developed and even developing nations. They also fail to provide consumer choice for DSL service in most regions.

In 2006, deregulation continued when the FCC dramatically eased build-out requirements in local franchising laws across the United States. Franchise agreements are made between local and state governments on one hand, and providers of video services like cable television on the other. The agreements dictate the terms by which companies build their video systems, which typically are the same systems they use to provide Internet service. The Bush-era FCC’s decision limited state and local governments’ ability to require companies to connect underserved and unserved regions in their own communities. Instead, it permitted carriers to cherry-pick lucrative areas to provide broadband service.

The Investment Scare Continues

For a few short months, current FCC Chairman Genachowski gave the public impression that he understood the importance of an effective regulatory agency. He asked an independent team to develop a National Broadband Plan. He spoke in support of strong network neutrality rules applicable to both wireline and wireless networks. Later, in response to new challenges, he developed an agenda to “reclassify” broadband under Title II, albeit with some new limitations on FCC authority.

He even commissioned the Berkman Center for Internet & Society at Harvard University in 2009 to study “open access” in the broadband context, tipping his hat to the Telecommunications Act of 1996, which encouraged line sharing to ensure broadband competition.

The Berkman study came out with strong, compelling evidence, based on international comparisons and economic analysis, that line sharing is a critical component of a country’s strong broadband development. In the countries studied, the report stated,

“open access policies – unbundling, bitstream access, collocation requirements, wholesaling, and/or functional separation – […] provided an important catalyst for the development of robust competition which, in most cases, contributed to strong broadband performance across a range of metrics” (13).

But after asking for public comment on the Berkman report, the FCC did not follow through on the report’s recommendations. Blair Levin, former director of the National Broadband Plan team, poured cold water on any hopes of FCC action on the issue in an interview earlier this year.

Many recommendations made by the National Broadband Plan were similarly underwhelming, proposing universal broadband speed targets lower than those proposed or already achieved in many other nations. And the agency still has not moved to reassert its authority over broadband access, so that it can implement strong network neutrality protections.

Instead, the FCC hosted closed door meetings without public interest involvement to develop a watered-down industry compromise on what only the carriers could believe passes for network neutrality. Worse, because the agency has not acted to make sure that it can oversee broadband access, it is unclear how any net neutrality rules it creates could be enforced. All because some large providers threaten to withhold investment in their infrastructure if the FCC dares impose any tangible regulations on them. (Yet somehow, Comcast, AT&T, and Verizon can afford to pay for expensive commercials, billboards, sponsorships, and outdoor advertising like virtually no other commercial industry in business today.)

Time for a Stronger FCC

When carriers warn of the looming downfall of investment due to network neutrality rules or broadband reclassification, their scare tactics should rouse considerable feelings of déjà vu in any historian or longtime advocate of communications policy. These are not new arguments. They are tried-and-true weapons used to weaken the FCC’s political will. And the long-term memory loss of the Washington policy world provides a perfect excuse for their continued use.

The solution to the FCC’s rightful concern about investment is not the abandonment of net neutrality protections. Doing so would leave carriers free to discriminate against or block traffic on the Internet, gutting free expression, technological innovation, and competition in online commerce. Doing so would also fail to provide any concrete assurance that carriers will in fact invest to expand and upgrade broadband networks, as they promise to do.

If the FCC is truly concerned with investment, it will strengthen its competition policy, not weaken it. It will create rules to ensure consumer choice and infrastructure development, instead of bowing to carriers’ intimidation tactics by enacting diluted, unenforceable network neutrality provisions.

Kamilla N. Kovacs is communications and development director at Media Access Project, a DC-based nonprofit, public interest law firm working to advance policies that promote freedom of expression, independent media, and low-cost, universal access to communications services.

Follow Kamilla: www.twitter.com/kamillakovacs

Follow Media Access Project: www.twitter.com/mediaaccess

But there is something odd going on right now in Washington. Representatives of some of the nation’s largest technology companies have been summoned to the K Street offices of the Information Technology Industry Council, a venerable industry organization that lobbies the government on behalf of a wide variety of tech giants, including Microsoft (MSFT), Oracle (ORCL), Cisco (CSCO), Apple (AAPL), Hewlett Packard (HPQ) and Dell (DELL).

The ITI is hosting an apparently hastily-convened series of discussions led by industry lobbyists on the future of national broadband policy, and specifically the red-hot issue of net neutrality: the concept that broadband providers shouldn’t discriminate against rival content. The meetings, first reported on by The Wall Street Journal, follow a failed attempt by the Federal Communications Commission to achieve a consensus between powerful Web and telecom companies, which foundered after Google (GOOG) and Verizon (VZ) bailed on the agency’s closed-door talks and struck their own deal.

The Google-Verizon proposal in its most basic form is this: Net Neutrality applies to the wired Internet, but not the wireless Internet. And it would create a separate, non-public “managed services” network that would not be bound by net neutrality — a private, high-speed broadband system for high-paying customers. Critics say the next Google, YouTube, Facebook, or Twitter could never afford to be hatched on such a private network.

A “Pep Rally” to Bolster Industry Support

The ITI is “the premiere voice, advocate, and thought leader for the information and communications technology sector,” according to Dean Garfield, the organization’s president and CEO. Founded nearly a century ago, a Google search refers to ITI as a “lobbying agency that advocates rewarding IT innovation and supports free-market policies.”

The ITI is hosting the meetings, but it appears they’re being held at the request of Verizon, AT&T, (T) and the National Cable and Telecommunications Association, the giant industry trade group. The ITI is an an odd venue, because most of its member companies have steered clear of the net neutrality debate, including industry giant Microsoft, which has been quite muted during the broadband policy wars. Microsoft is, however, attending the meeting. Others ITI members, including giants such as Kodak (EK), Sony (SNE), and Corning (GLW) have been completely absent from the debate.

One industry source speculated that AT&T and Verizon, having failed to sell the Google-Verizon deal to the FCC, let alone the public, are using these meetings as “a pep rally” to bolster support among other tech industry giants before pushing for legislation. AT&T has recently offered comments supportive of the Google-Verizon deal.

An ITI spokesperson confirmed the talks are ongoing, and described the closed-door meetings as “a series of focused discussions, with ITI serving as facilitator, aimed at developing Internet openness principles that can achieve broad cross-sector support.” The spokesperson refused to confirm the meetings’ participants. The talks will continue Monday, according to a source with knowledge of the matter.

No One Representing Consumers

Public interest groups, including Public Knowledge and Free Press — among the most vocal pro-net neutrality advocates — were not invited to the meetings. The Open Internet Coalition, a group which includes Google, Facebook and Amazon (AMZN), is not participating at present. Neither is Google, which is still smarting over the PR drubbing it took over its deal with Verizon.

Also not participating is the FCC, which is charged with regulating the communications industry in the U.S., although it said it’s “glad that there is ongoing dialogue” — which could be interpreted as tacit approval of the process.

Public interest groups say there is no one representing consumers at the talks.

“These ‘negotiations’ are illegitimate,” Media Access Project Policy Director Andrew Jay Schwartzman said flatly. “They do not involve representatives of people who use the Internet for free expression and commerce, and they lack representation from the infant businesses that depend on an open Internet to build the future Ciscos, Microsofts, and Skypes.”

On the Outside, Looking In: A Q&A with Harold Feld

DailyFinance spoke with Harold Feld, an expert in Internet law and the outspoken legal director of Public Knowledge, one of the excluded groups, for a looking-in-from-the-outside perspective.

DailyFinance: Your group wasn’t invited to these broadband policy meetings convened by ITI that include Verizon, AT&T, the NCTA, Microsoft, Cisco, and others. Any guess what’s going on in there?
Harold Feld: These guys have reached more of a consensus than anything that came out of [FCC] Chairman [Julius] Genachowski’s office because they all agree with each other. It is likely that they come up with something that is utterly unacceptable. Either Chairman Genachowski tries to embrace it, in which case he takes a real hit. Or there is something like the public reaction to the Google-Verizon deal, and they continue to just sit there like nothing happened. Or when he gets presented with something that is obviously inadequate he can say, ‘This is obviously inadequate and we need to act decisively.’

A key part of the Google-Verizon proposal refers to “managed services,” a non-public Internet where the major content companies could buy prioritized, high-speed access to consumers. What impact would have that have on Web startups?
The cable TV universe provides an excellent example of what might happen. The big boys can take care of themselves and now there are really no more independents left. And that’s the universe we’re looking at if we can do “managed services” and call it that instead of prioritization.

How would a separate, “managed services” Internet change the economics, particularly the investment incentives, of the business?
If I’m the provider and all I’m going to get is the subscription fee, am I going to invest in public broadband, or am I going to invest in managed services where I’m going to get the subscription, plus payment from the content companies for the managed service?

Google, a Web company, and Verizon, a telecom giant, are traditional rivals on net neutrality. Why do you think they came together to make that deal?
We’ve seen Google and Verizon working closer together, particularly as Verizon has come to see the Droid as an answer to the iPhone. So there’s a strong business interest there. Google may have just become frustrated. They might have concluded, “Nothing is happening, there’s no indication that anything is happening, so let’s just make a deal that will work.”

I think the Google guys think they are big enough that Verizon isn’t going to mess with them because they need Android as a counterbalance to the iPhone. They’ve seen that Apple has AT&T by the throat just as much as AT&T has Apple by the throat. Android is huge in the industry. They could be the Microsoft of the wireless industry. So they [Google] think they’ll be the ones who can help dictate the terms.

The FCC talks, led by Chairman Julius Genachowski’s chief of staff, Edward Lazarus, blew up after Google and Verizon struck their own deal. What is the role of the FCC in these new ITIC talks? ["While we're not involved in these new discussions, we're glad that there is ongoing dialogue," the FCC said in a statement.]
Whether the chairman’s office has actively tried to get these guys to start up the talks again or they’ve signaled that they’re looking for somebody to work out a compromise, it’s just kind of sad at this point. First, the public reception to the Google-Verizon proposal was that people flipped out about two huge companies dividing the Internet up. Do you think it looks better by adding Microsoft, Cisco and Oracle? And I think that’s why Google is not participating. I think if Google compounded this by going into another back room with a whole rogues’ gallery, that would worsen their reputation with their fan base.

What’s happening with the FCC? Shouldn’t it be involved — if not leading the way — on national broadband policy? Broadband is clearly a communications industry. Why hasn’t Genachowski asserted more authority over an industry that is clearly within his portfolio?
Chairman Genachowski has ended up projecting weakness at a time when he should be projecting strength. When he started this, he had an enormous amount of backing from the president on down. He was told, “You’ve got a job to do, now go make decisions.” Instead, there’s been this misguided attempt to project some kind of Solomonic wisdom, but he’s projected an image of being weak and indecisive. He has managed to project that he’d rather have industry solve the issue than him solve it. And that’s very unfortunate.

That’s a pretty tough assessment. Can Genchowski redeem himself in your eyes?
There is a way out for him, a solution that will allow him to come out of this looking good, and that is to say: “‘I tried everything. I tried to negotiate something, but these guys just don’t get it, and so we’re just going to have to go ahead and move to protect consumers.”

Chairman Genachowski can recover. He can recover. He can come back and show he’s a fighter, which is what they respect in this town [D.C.]. But his window is closing because the election is coming up and if Congress flips, it’s going to be a lot harder. If the election passes by and he’s got nothing to show for it, it’s going to look very bad for him.

You can find the full brief here: http://www.mediaaccess.org/wp-content/uploads/ReplyOppositiontoPetitiontoDenyComcastNBCUtransaction.pdf

Advocates for and against Comcast’s plan to buy NBC Universal weighed in one last time at the Federal Communications Commission on Thursday, the cut-off date for formal filings regarding the deal. Regulators are expected to rule on it by the end of the year.

While many comments haven’t surfaced yet at the FCC’s Web site, here’s what a few of the major players had to say:

– DirecTV warned that Comcast might find tricky ways to get around any FCC mandate that would require the cable company to make NBC’s broadcast and cable shows available to its rivals: satellite TV providers and phone company TV services.

For example, DirecTV said, Comcast could make itself the exclusive provider in a community of shows in high-def or 3D — letting others just offer their customers blah-looking standard definition signals. Or Comcast could keep shows from its competitors by moving them to the Web.

The satellite company also said Comcast may try to recoup the costs of the deal by raising the prices it charges others — including DirecTV — to carry NBC and cable channels including USA, SyFy, and Oxygen. Those price hikes could end up being passed along to consumers.

– Several consumer advocacy groups said that it’s especially important for the FCC to scuttle Comcast’s deal since a court ruling in April stripped the regulators of much of their authority to set rules for the Web.

It’s “clear from Comcast’s internal documents that the company fears competition from new online competitors and has taken steps to limit that emerging competition,” says a joint filing from Free Press, Consumers Union, the Consumer Federation of America, and the Media Access Project. “By acquiring access to popular content controlled by NBCU, Comcast will have much more incentive and ability to withhold content that emerging online video competitors need to establish themselves.”

– But Comcast offered an extensive point-by-point rebuttal to points raised by critics of the deal.

“In many cases, the claimed harms are nothing more than preexisting or industry-wide grievances that commenters are improperly re-airing in this proceeding,” the company says. “Many businesses and organizations who compete with or aim to extract unwarranted concessions from Comcast or NBCU are attempting to use the Commission’s review process to foist unprecedented and onerous burdens on the combined entity.”

Comcast says that its deal will help to “reinvigorate local broadcasting, expand the distribution of independent networks, lead to more content being available on more distribution platforms, and accelerate the ‘anytime, anywhere’ video future that consumers are demanding today.”

By Paul Harris, Variety

A host of industry orgs, consumer and media watchdog groups weighed in against the Comcast-NBC Universal deal on Thursday, the deadline for filing the last round of comments on the merger with the Federal Communications Commission.

In its filing, the Writers Guild of America West took issue with Comcast’s assertion that the merger would advance competition in the industry. Instead, the deal represents an enhancement of market power for Comcast and NBC U, including the ability to raise prices and limit consumer choice, the guild said.

“While Comcast has granted concessions to business groups that might otherwise have opposed this merger, such as local station affiliates of NBC and the other broadcast networks, these agreements benefit business interests, not the public interest,” said the WGAW.

The guild repeated previous requests that the commission impose conditions to promote competition and diversity. That included its view that the FCC should require that no less than 25% of new primetime series on NBC and Comcast-NBC U networks be produced by independent entities. The terms should be crafted to ensure “maximum diversity of voices and artists on such programming, not just to provide more programming space for other large media companies,” the guild said.

It accused Comcast of paying lip service to the importance of indie content. For example, it says Comcast’s reply comments to the FCC discuss “the importance of obtaining and providing outlets for programming from diverse sources.” But WGAW’s own analysis reveals that “only three of the 17 series on NBC’s fall 2010 primetime schedule are produced independent of vertically integrated media companies.”

By that analysis, indie content reps less than 18% of NBC’s fall sked, it said. And of the seven new series debuting in the fall on NBC, “none will be independently produced.”

Now that the public comment period is closed, FCC staff and commissioners will hunker down on their review of the merger and negotiations with Comcast and NBC U on possible concessions to be imposed as a condition of granting approval. The Justice Dept.’s antitrust wing is also reviewing the merger. The timetable for federal approval is unclear, but execs with Comcast and NBC U parent General Electric have said they’re confident the reviews will be completed by year’s end.

In its filing on Thursday, the American Cable Assn., an org that represents small-and medium-sized cable TV systems, urged the FCC to impose a variety of conditions on the Comcast-NBC U merger to protect rival cablers from the industry goliath.

The ACA asked the FCC to prevent Comcast from escalating the price of cable and broadcast channels that must be purchased by rival systems to remain competitive. Unless conditions are placed on the merger, Comcast-NBC U will have “unmatched leverage” in both traditional and online media markets to harm competing cable and satellite operators by driving up programming costs, said ACA topper Matthew Polka.

The ACA comments were among numerous industry and public interest filings to the agency in response to its deadline in the controversial merger proceeding. A joint filing by four public interest orgs claimed that the FCC’s Comcast-NBC U docket contained 33,049 filings at last count, 94% of which opposed the merger.

ACA’s Polka also asked the FCC to require the merged company to sell NBC U cablers and regional sports networks on a stand-alone basis rather than bundle them with other channels. It asked the agency to protect small cable systems from having to pay fees for any NBC station or sports cabler that are more than 5% higher than the lowest fee paid by any other local distributor.

Comcast responded with its own filing to the FCC on Thursday evening, arguing that “despite having had more than six months to formulate plausible theories of harm to competition or consumers and to muster evidence to support such theories, the record evidence demonstrates that those theories are wholly speculative and unsupported.”

It noted that the transaction has received more than 1,000 third-party letters in support from lawmakers, community leaders and other media companies.

Comcast argues that it has made a “compelling” case for the public-interest benefits of the deal. Among other things, Comcast says, it will reinvigorate local broadcasting, expand the distribution of independent networks and accelerate the “anytime, anywhere” video choices “that consumers are demanding today.”

But consumer groups have only hardened their opposition to the deal. A joint filing by four orgs — Free Press, Media Access Project, Consumer Federation of America and Consumers Union — argued that the FCC’s record now includes massive evidence that the proposed merger will harm competition.

Media Access Project senior veep Andrew Schwartzman said the views expressed in its original petition have been confirmed by Comcast’s internal business planning documents.

“It shows that the goal of this transaction is to use NBC U’s content to extend Comcast’s market power into the Internet space. There are no conditions which can ameliorate this problem,” he said. Schwartzman’s view was seconded by Mark Cooper, CFA’s research director.

Among independent cable TV channels expected to file with the agency was Arlington, Va.’s Allbritton Communications, owner of a regional cable news channel and ABC affil WJLA-TV Washington. Allbritton has asked the FCC to delay its merger decision until it has fully vetted the implications of Comcast’s influence in markets such as D.C., where Comcast owns cable systems and the Peacock has an O&O station, WRC-TV.

Allbritton hopes the FCC will either require Comcast to divest itself of NBC-owned stations in markets where it controls more than 25% of major distribution entities or mandate that it negotiate nondiscriminatory carriage agreements at market rates.

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